Harrow London Borough Council v Donohue and another

Trespass by erection of building — Whether court has discretion to grant mandatory injunction — Whether damages, possession order or mandatory injunction appropriate remedy The plaintiff council owned a vacant plot which adjoined the dwellinghouse belonging to the defendants. During 1988 the defendants erected a garage of which approximately one-half and a fencing wall was placed on the vacant plot. On October 1 1990 building regulation consent was granted by the council for the garage. On July 18 1991 the defendants received two letters from the council, one from the planning department inviting the defendants to apply for planning permission for the garage, and the second from the estates department warning the defendants that the garage was partly on land belonging to the council and that legal action would be taken to have it removed. The defendants submitted an application for planning permission which was granted on October 1 1991. On October 25 1991 the council issued proceedings claiming, inter alia, damages and a mandatory injunction. At trial liability in trespass was admitted on behalf of the defendants but the judge refused the council’s application for injunctive relief and directed an inquiry as to damages. The council appealed contending that the judge had wrongly exercised his discretion in failing to make a mandatory injunction requiring the removal of that part of the garage on the vacant plot. Held: The appeal was allowed. The court has no real discretion to exercise where a plaintiff has been dispossessed through the erection of building works and is excluded totally from the land to which he has title; it is the plaintiff who has a discretion as to whether to accept the building as an accretion on his land or of coming to court and insisting as of right upon either an order of possession of the encroached land or an order for demolition of the encroaching building works. The court may have a limited discretion as to whether to give an order for possession or an injunction and a possession order was not appropriate in the present case. There was no authority which provided a precedent for a court allowing total dispossession to be achieved by means of an award of damages in lieu of an injunction or a possession order; a defendant could not, in effect, buy adverse title through an award of damages. The following cases are referred to in this report. Pettey v Parsons [1914] 1 Ch 704 Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; [1974] 2 All ER 321; (1973) 27 P&CR 296 This was an appeal by the plaintiffs, Harrow London Borough Council, against a decision of Judge Lowe in Willesden County Court, in a claim for damages or an injunction against the defendants Michael Joseph Donohue and Anna Bernadette Donohue in trespass proceedings. Roger McCarthy (instructed by the solicitor to Harrow London Borough Council) appeared for the appellants; Nigel Thomas (instructed by Nelson Cuff, of Harrow) represented the respondents. Giving the first judgment at the invitation of Sir Stephen Brown P, Waite LJ said: This is an appeal by a plaintiff local authority, as landowner of a small plot of vacant land in a developed area, from an order of Judge Lowe in Willesden County Court on February 13 1992 refusing a mandatory injunction for the taking down of the encroaching portion of a garage building constructed by the defendants (adjoining owners) partially upon what is now admitted to be land belonging to the plaintiff. The judge found that the trespass, which is not denied, could be adequately compensated in damages, as to which he directed an inquiry in the usual form. The background history, largely undisputed, is as follows. The appellants, Harrow London Borough Council (whom it will be convenient to call ‘the council’), were the owners of a developed estate at Kenmore Park. On April 8 1980 the council sold one of the houses on the estate, 95 Rowland Avenue, to the defendants, Mr and Mrs Donohue. That house (which I will call ‘no 95’) stood at the east end of Rowland Avenue and was the last house on the north side of that road. Adjacent to it, and occupying the apex formed by the T-junction of Rowland Avenue with another road to its east, was a small hexagonally-shaped piece of land, which had been retained in the ownership of the council. I will call that ‘the vacant plot’. There was another house built to the north of it so that the vacant plot had come to represent a small enclave in the midst of what, as the photographs show, was an otherwise more or less fully developed housing estate. No 95 had no garage. It was semi-detached with the adjoining house to the west. The result was that if it were to be enlarged to accommodate a garage, the only direction that no 95 could be built out was eastwards, that is to say in the direction of the vacant plot. The eastward strip of no 95’s own garden was narrow. If a garage of any reasonable size were to be built there, large enough to accommodate even the smallest family car, it would have to be extended well beyond the cartilage of no 95 eastwards into the vacant plot. On February 7 1986 the first defendant, Mr Donohue, wrote to the council with an offer to buy the whole of the vacant plot. In his letter he explained that he needed it to provide him with space for parking and easier access to his back garden. He offered a price of £100. The council’s estates surveyor replied on April 25 1986, stating that the controller of housing was not prepared to recommend the council to sell the vacant plot. In the course of the year 1988, as the judge found, the defendants built a garage to the east of no 95. They paved the access to it from Rowland Avenue and built a fencing wall to the east of the paved garage approach. It is not disputed that the garage building and the fencing wall encroached on the vacant plot. The precise extent of that encroachment was in issue at the hearing. The judge said that there was insufficient evidence to enable him to resolve that issue, but he proceeded on the basis that the encroachment was on any view sufficiently substantial to leave approximately one-half of the garage encroaching on the vacant plot. Neither side has sought at this appeal hearing to challenge the propriety of that approach to the facts and I have no doubt that the precise area of the encroachment can be agreed or laid down if necessary. For the purposes of argument, the area of the encroachment was taken to be about 268 sq ft. At some date, which is not apparent from the documents, but which must have been after those building works had taken place, the defendants applied to the council for building regulation consent for the garage extension. On October 1 1990 that consent was granted. About nine months later, on July 18 1991, two letters were written to Mr Donohue on behalf of the council. The first was from the council’s head of planning and development and it read as follows: I have to inform you that at a meeting of the Planning Application Subcommittee on 16th July, it was resolved that you be invited to submit a planning application for the retention of the unauthorised garage recently constructed to the flank of your property. The second was from the council’s estates surveyor in the following terms: I refer to previous correspondence and I’m able to confirm that a Report was recently submitted to the relevant Committee regarding your construction of a Garage partly on land owned by the Council. I have to advise you as a consequence, that the officers have been instructed to take appropriate legal action to have the building removed and the land reinstated. The defendants’ response to the first of those letters, the one from the planning department, was to submit, on July 23 1991, an application for retrospective planning approval for the retention of the existing garage and a single-storey extension. That approval was formally granted on October 1 1991 under cover of a letter from the council’s head of planning and development, which read as follows: I refer to the planning permission hereby granted for the retention of existing garage at side and single storey extension. The attached permission to develop should not be construed to indicate that the owner of part of the application site will agree to the sale of the land. So far as the title aspect was concerned, the action taken by the council was this. On October 25 1991 the council issued a summons in the county court against the defendants, accompanied by particulars of claim complaining of the encroachment and claiming, first, damages for trespass limited to £5,000; second, a mandatory injunction ordering the defendants ‘to pull down, demolish and remove such part of the … garage and fence wall as encroaches on the (vacant land) and to reinstate the land and hedge to its former appearance’; and third, a prohibitory injunction restraining the defendants from further trespass on the vacant land. The defendants’ initial response to that was to write, before entering any pleading in the action, to the council on December 2 1991 with an offer to buy the site of the encroachment for £1,000. That offer was not accepted. So in due course the defendants served the defence on February 11 1992. It raised issues of adverse possession, estoppel and alleged ratification. Those were not maintained at the trial and a counterclaim based upon them was not pursued. The hearing took place on February 13 1992. There was at the outset a concession by the defendants’ counsel, which the judge recorded in his note book in these terms: Liability is admitted the amount of trespass disputed because a small passageway so the issue is Injunction or Damages. No live evidence was called by the council. An affidavit was put in by the council’s estates surveyor, Mr Francis Dowley, in respect of which the judge’s notes of evidence record that it was evidence admitted by the defendants, who did not wish to cross-examine Mr Dowley. It was an affidavit which simply pleaded the encroachment, exhibited photographs to demonstrate its nature and extent and also exhibited the correspondence already described. Mr Dowley did not add anything to that evidence as to the effect of the encroachment beyond the bare assertion that it constituted a trespass. Nothing was said as to the effect of it, adverse or otherwise, upon the amenities of the vacant land or as to the value to the council, practical or financial, of the land that had been lost to them as a result of the encroachment. The only evidence called on behalf of the defendants was that of Mr Donohue. It was brief and I can read the whole of the judge’s note of it as follows: I have lived at 95 Rowland Avenue since 1975. The main extension was done in 1985 — as I have mentioned, the judge made a finding that the year in question was in fact 1988 — and the boundary wall was put up. The green area was not used for anything in particular. I took the hedge out and put the wall there — £1,000 about 8 ft out from the main extension — to take down the wall would cost £1,200. Then he acknowledged that he had received the council’s letters. In cross-examination he said: The 1980 purchase I thought was to the hedge line. The extension 1982 application was refused. Then he referred to the dimensions of the property as he understood them to be and added: … in 1986 I was trying to buy part of the hatch blue I offered £100 in 1986 and the garage was in 1988 the garage was about £1,000 — I did not really think the council would not mind — I didn’t apply for planning permission for garage before it was built — I didn’t think I needed to say have built on land — in December I offered to buy — not earlier because I thought I was entitled — the alleyway is partly in the garage. The judge delivered judgment on the same day and he defined the issue before him in this way: The issue in the case has been almost entirely confined to the nature of the relief which the court should decide upon, whether it is the injunctive relief which the plaintiffs have asked for or damages is the appropriate course. He then continued: When the garage was built in 1988 at a cost of about £1,000 I find that the 1st defendant, Mr Donohue, was aware that there was some encroachment and he was reckless as to the extent of it in the light of his earlier planning application. The judge then proceeded to summarise the correspondence, which I have already described, and he proceeded to the operative part of his judgment which was in these terms — and I will read it in full because of the picture that it affords of the way in which the case was argued before him: The borough’s case is that the case of Patel v Smith [1987] WLR 853 applies the thrust of which is said to be encapsulated at p233 of the Green Book and states that a landowner is prima facie entitled to an injunction to restrain trespass on his land and that the court should not be concerned with the balance of convenience. Patel v Smith is about preventative injunctions sought for about the use of property as a yard for vehicles and for articles to be removed. This is a case in which a building has already been erected and stood for some three years or so and injunctive relief although arising out of a trespass in land would be mandatory in the sense that the building would have to be pulled down and it would not be a case in which part of the building would be retained for use as a garage. Even if assuming the defendants were correct in saying they were entitled to some 8 ft there would not be sufficient space for a new garage. In my view, I have to regard it as appropriate on the facts of the case to consider the mandatory line of authority to which my attention has been drawn — that is of course a reference to those authorities which are concerned with the grant of a mandatory as opposed to a prohibitory injunction — I have to be particularly careful to note how that line of authority indicates it is in relatively rare cases that such injunctive relief is granted … 258  — he then referred to the principles to be found in — Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 at p327 and Redland Bricks Ltd v Morris [1970] AC 632 at p665. I don’t regard this as a case in which the damage to the plaintiffs is minimal. If the garage remains where it is, as counsel has pointed out, the use of that land as has been encroached remains lost in perpetuity and the plaintiffs cannot utilise it. Although as is accepted by counsel for the defendants they have behaved wrongly to order him to pull down the garage would be an expensive exercise. In my view, I have come to the conclusion that the plaintiffs can be properly compensated in damages but I think it is premature to embark on trying to assess the amount and I think that the appropriate course is an inquiry into that aspect of the case which can be carried out at a later date. The learned judge refused the application for injunctive relief and directed an inquiry as to damages to be carried out by a district judge, with liberty to the parties to apply. The clear impression given by the judgment is that the judge regarded himself as confronted by the conventional discretionary case, which faces the court whenever a choice has to be made between the remedy of an injunction or the remedy of damages for a proved or (as in this case) admitted act of trespass. There is, indeed, no dispute that the case was presented to him in that way. It was an issue (when so regarded) on which opposing views were clearly tenable. One was that the defendants had rashly and unwisely chanced their arm in acting as they did; that they were entitled to no sympathy; and that an injunction would for the reason lie against them almost as of course. The contrary view was that this was precisely the situation for which Lord Cairns’ Act must have been designed. The council could readily be compensated in damages for the comparatively small piece of land they had lost, and damages were shown to be their proper remedy, when contrasted with the very considerable cost that would be involved for the defendants in partially demolishing their garage and making good the other acts of trespass involved in their building works. That approach to the matter was reproduced in the notice of appeal and the skeleton arguments that have been presented in this court and I do not think it would be inaccurate to say that bench and bar both came to this appeal expecting a review of the familiar authorities in this discretionary field. In fact an entirely different approach has been adopted in the hearing of this appeal, an approach which can fairly be said to owe a good deal to prompting from the court itself. The case has been looked at here on a more fundamental footing. Was there really any discretion at all? If a defendant acts in total breach of the plaintiffs proprietary rights, by dispossessing him altogether through the erection of building works which have the effect of excluding him totally from the land to which he has title, does the court have any real choice in the matter? Is it not rather the plaintiff who has the option; either of accepting the building works as an accretion to his title (keeping them or demolishing them or dealing with them out of court in whatever way he chooses) or, alternatively, of coming to court and insisting as of right upon either an order for possession of the encroached land or an order for demolition of the encroaching building works? If the plaintiff makes the latter choice, does the court have any discretionary power beyond the right perhaps to make a choice as between those last two remedies? As the argument in answer to that question developed, it became increasingly plain that the answer, in a situation such as the present where the landowners have been totally dispossessed by the defendants’ encroaching building, is that the plaintiffs do indeed have an option. They may say, ‘Thank you very much’ and accept the encroachment as an accretion to their land with which they are free to deal as they please; or they may take their remedy at court. If they follow the latter course, they are entitled as of right to one or other of two remedies; that is to say to an order for possession, or to a mandatory order for the taking down of the offending building. The court may well retain a limited discretion, according to the circumstances of each particular case, in making a choice between those two remedies. In the present instance it would be academic, because, speaking for myself, I cannot see how possession could be an appropriate remedy here. A simple possession order would only be an invitation to further litigation. Mr Nigel Thomas, adapting skilfully to the new situation presented by this more radical approach to the case, was unable to cite to us any authority in which the court has upheld the right of a dispossessing defendant in effect to buy adverse title through an award of damages. He referred us to Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 and Pettey v Parsons [1914] 1 Ch 704. The first was an instance of an award of damages protecting an infringement of a restrictive covenant. The second was an award of damages protecting what amounted on the face of it to a permanent violation of air space, but in that particular instance Sargent J had succeeded in extracting from the defendant an undertaking which left proprietary rights largely undisturbed. In the end, as Mr Thomas acknowledged, there was no authority which provided a precedent for a court allowing total dispossession to be achieved by means of an award of damages in lieu of an injunction or in lieu of a possession order. The judge’s approach to the case was understandable, having regard to the way in which it was presented to him. When looked at, however, in its proper light, the case appears to me to be plainly one where the grant of a mandatory injunction was inevitable and I would propose to allow the appeal accordingly. Hirst LJ and Sir Stephen Brown P agreed and did not add anything. Appeal allowed.