Bracewell v Appleby: ChD 1975

The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the grounds of the plaintiff’s delay in commencing proceedings. The defendant was ‘liable to pay an amount of damages which so far as it can be estimated is equivalent to a proper and fair price which would be payable for the acquisition of the right of way in question.’
Graham J said: ‘I think that for the purposes of estimating damages [the plaintiffs] and the other servient owners in Hill Road, albeit reluctant, must be treated as being willing to accept a fair price for the right of way in question and must not be treated as if they were in the extremely powerful bargaining position which an interlocutory injunction would have given them if it had been obtained before the defendant started operations and incurred expense. Such is to my mind the penalty of standing by until the house is built.
On the evidence here the probable figure of notional profit which the defendant has made, being the difference between the overall cost of the new house and its present-day value seems to be somewhere between andpound;4,000 and andpound;6,000 and I think it is fair to take andpound;5,000 as about as accurate a figure as one can get. The circumstances here are very different from those in the Wrotham Park case and I think that the proper approach is to endeavour to arrive at a fair figure which, on the assumption made, the parties would have arrived at as one which the plaintiffs would accept as compensating them for loss of amenity and increased user [of the private road], and which at the same time, whilst making the blue land a viable building plot, would not be so high as to deter the defendant from building at all. . . . I think he would have been prepared to pay what is relatively to his notional profit quite a large sum for the right of way in question and to achieve the building of his new home. This was a time of rising property values and I think he would have been prepared to pay andpound;2,000 to get his right of way and if he had made such an offer, I think the other five owners in Hill Road ought also to have been prepared to accept it.. . . ‘

Graham J
[1975] Ch 408
England and Wales
DistinguishedWrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .

Cited by:
CitedWrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
CitedTito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
CitedSurrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
CitedCarr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
CitedSevern Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedAnchor Brewhouse Developments -v Berkley House (Docklands) Developments 1987
A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some . .
CitedSmall v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
CitedTamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
CitedWWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .

Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 20 January 2022; Ref: scu.186372