Property


Aggravated damages - boundaries - neighbour disputes - neighbouring land - prescription - rights of way - unregistered land - intimidatory conduct - mental distress - loss of amenity



(1) Rowland Alan Owers (2) Nicola Margaret Owers v Karl Ernest Bailey: ChD (Nicholas Strauss QC): 22 September 2006



The claimant freehold property owners (O) sought a declaration that their property had the benefit of a right of way acquired by prescription over a track, injunctions requiring the defendant neighbour (B) to remove obstructions from the right of way, and damages for interference with the right of way.



O and B had both claimed a right of way over a track between their properties. The ownership of the track was unknown and the only access to O's property was by the track.



The previous freehold owner of B's property (K) had also owned O's property. Prior to the sale to O, K had erected a boundary fence between the two properties in such a way as to make the track inaccessible to his land and he had never sought to use it.



K subsequently sold the remaining property to B. B had initially obtained O's consent to the temporary removal of the fence while he was moving in. However, B subsequently continued to use the track and maintained that he had a right to use it as he had the best claim to the unregistered part of the track.



O maintained that K's interest in the registered part of the track had been sold to them by deed. Both parties referred the matter to their respective solicitors. However, B repeatedly obstructed access to the track by parking his tractor on it. B had also erected gates and insisted that O kept them closed.



As the dispute over access could not be resolved and O could not sell their property because of the dispute, O moved out of it and issued proceedings against B. O submitted that: they had established entitlement to use the track as a legal easement of way under section 2 of the Prescription Act 1832, as it was clear that O and their predecessors in title had used the track as of right continuously for more than 40 years or from time immemorial; alternatively, O had established entitlement on the basis of a grant by deed made by all necessary parties, which had subsequently been lost or destroyed by accident; O would be entitled to both general damages for loss of amenity and aggravated damages on account of B's persistent intimidatory and unpleasant conduct in interfering with the right of way.



Held, K had conveyed all their estate and interest in the track to O by deed and had expressly agreed with O that the fence erected by K should be the boundary between their respective properties. Subsequently, K did not use the track in any way and had no need to use it. In the circumstances, any interest that K might have had in the right of way was expressly or impliedly released and could not form part of the conveyance to B. K had not purported by the conveyance to transfer to B any interest in the right of way, so O had established their entitlement to use it and B did not have any similar right.



Damages for loss of amenity would be relatively small in view of the relatively short period of inconvenience of four months. It was more appropriate to reflect B's objectionable behaviour in an award of aggravated damages. There was no reason why aggravated damages should not be awarded for interference with a right of way as opposed to trespass to land.



B's behaviour was intimidatory and unpleasant, and it was malicious in the sense that B had known O had a right to use the track, which he had not been entitled to bar, and his object had been to secure for himself a right of access over O's land to which he had not been entitled. His conduct had undoubtedly caused O severe distress, particularly as they had been driven to leave their home (Appleton v Garrett (1997) 8 Med LR 76 applied). Accordingly, it was appropriate to award O aggravated damages in the sum of £4,500 and damages for loss of amenity in the sum of £2,000.



Judgment accordingly.



Nathan Wells (instructed by Wilsons) for the claimants; no appearance or representation for the defendant.(instructed by Hossacks) for the claimant; Roger McCarthy QC (instructed by the local authority solicitor) for the defendant.