The parties had become embroiled in a particularly bitter boundary dispute. The claimants in particular sought aggravated damages saying that the defendants had misled them in securing agreement to works.
Held: Aggravated damages were awarded. The defendant had continued to deny any wrongdoing when he knew full well that his building was a trespass. Patten J said: ‘I have rejected the allegation that the Raydens sought from the start to mislead the Perlmans and that they always intended to carry out their works regardless of the Perlmans’ rights . . I do, however, accept that the Raydens did decide to press ahead with the extension regardless of the terms of the planning permission. What is in dispute is whether and to what extent they were also aware that their extension would impinge on the Claimant’s property and his rights of access in the way that it did. It is, I think, important to bear in mind that Mr. Perlman is not entitled to damages for a breach by the Raydens of planning control. His cause of action is one in nuisance or trespass. There is no clear evidence that the Raydens knew in advance how their builders intended to construct the extension, any more than they planned the delivery of the dormer window via the roadway. But these were the Raydens’ builders and they must, in my judgment, take responsibility for their actions. It also seems to me unlikely that Mr. Rayden was not told by Mr. Izod or the builders at least something about the attempts that were being made to deal with the level of the flank wall. Neither Mr. Nixon nor anyone from the builders has been called to explain why they acted in the way they did. What is, I think, particularly important and significant is that when the queries were raised about the construction of the flank wall, Mr. Rayden continued to deny any wrongdoing, even at a time when he must have known what the true position was and indeed was prepared to admit it to the planning authority. This is a case where I can, I think, properly make an award of aggravated damages, but in doing so I am entitled to take into account the fact that the extension has now been demolished, at considerable cost to the Raydens, and my declaration about the gap to be left ought to prevent problems of this kind occurring in the future . .’
Judges:
The Honourable Mr Justice Patten
Citations:
[2004] EWHC 2192 (Ch)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Lists of cited by and citing cases may be incomplete.
Land, Damages
Updated: 01 September 2022; Ref: scu.216003
