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 appealed against an order reducing its damages to andpound;1,000.
Held: The appeal by Bocardo failed (Lord Hope DPSC and Lord Clarke JSC dissenting). The statute did not displace the owners rights by implication: ‘ In the context of a statute which is concerned with the right to search for and bore for and extract petroleum existing in its natural condition in strata below ground, the words ‘enter on’ in that subsection are apt to apply to underground workings as well as workings on the surface itself. The words ‘interfere with’ are not restricted, as was suggested, to interfering with the owner’s use and enjoyment of the land for the time being. The owner of the subsurface is entitled to say that his land is being interfered with when it is bored into by someone else. His right to object is inherent in his right of ownership of the land.’ The drilling was a trespass.
Lord Brown said: ‘the compensation – and the only compensation – contemplated by Parliament in enacting the 1934 Act was for ‘any loss of amenity value’ consequent on interference ‘with actual rights that exist’, in particular ‘the surface rights’. For any such loss ‘full compensation in the sense of the full market value’ was to be paid, plus 10% because ‘the owner may not necessarily desire to realise that asset.’ Compensation was to be for interference with ‘any valuable right’. Landowners, however, had no right at all in the oil or ‘in the chances of finding oil under the soil.’ It seems clear that Parliament in 1934 was not contemplating the boring of deep wells diagonally beneath land but that, had they done so, they would not have regarded that as an interference with any actual existing right or as involving any loss of amenity value or at any rate not such an interference as required more than essentially nominal compensation.’ and ‘ by this Act, Parliament in terms (a) vested the property in all petroleum in the Crown, (b) gave the Crown ‘the exclusive right of searching and boring for and getting such petroleum’ (a right that could be licensed to others, as here to Star) and (c) enabled any licencee compulsorily to acquire any necessary ancillary right (as here to access the petroleum through Bocardo’s land). The correct analysis seems to me to be this: that by these provisions Parliament was at one and the same time extinguishing whatever pre-existing key value Bocardo’s land might be thought to have had in the open market and creating a new world in which only the Crown and its licencees had any interest in accessing the oilfield and in which they had been empowered to do so (to turn the key if one wants to persist in the metaphor) compulsorily and thus on terms subject to the Pointe Gourde approach to compensation.’
Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Collins, Lord Clarke
[2010] UKSC 35, [2010] WLR (D) 204, [2010] NPC 88, [2010] 3 WLR 654, [2011] AC 380, [2010] 31 EG 63, [2010] 3 All ER 975
Bailii, SC, WLRD, Bailii Summary, SC Summary
Petroleum (Production) Act 1934, Mines (Working Facilities and Support) Act 1966 3(2)(d) 8(2), Pipe-lines Act 1962
England and Wales
Citing:
At First Instance – Bocardo Sa v Star Energy UK Onshore Ltd and Another ChD 24-Jul-2008
The defendant had obtained a licence under the Act to extract oil from beneath its land. To do so, it had to drill at a deep level under the claimant’s land. It did so without the claimant’s permission. The claimant sought damages in trespass.
Appeal from – Star Energy UK Onshore Ltd and Another v Bocardo Sa CA 15-Jun-2009
The appellant had taken out a licence to drill for oil on its land. To maximise its return it drilled at a deep level out under the claimant’s land. It now appealed against a finding that this was a trespass, and that it should pay damages on a . .
Applied – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
Cited – Henry Rowbotham, And Others v William Wilson HL 19-Jun-1860
Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the . .
Cited – Daniel Rowbotham v William Wilson 30-May-1856
Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years . .
Cited – Bowser v Maclean 21-Nov-1860
The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain . .
Cited – Corbett v Hill 1870
The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns ‘everything up to the sky’. . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Bury v Pope 1587
The owner of land was held entitled to erect a house against his neighbour’s windows even though they had enjoyed light for over 30 years. ‘And lastly, the earth hath in law a great extent upwards, not only of water as hath been said, but of aire, . .
Cited – Pickering v Rudd KBD 20-Jun-1815
Trespass into Air Space
The plaintiff had erected a board which extended over into his neighbour’s garden. The neighbour cut that down and a tree grown against his wall.
Held: Lord Ellenborough said: ‘I do not think it is a trespass to interfere with the column of . .
Cited – Commissioner for Railways v Valuer-General PC 1974
(New South Wales – Court of Appeal) The parties disputed the value of a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating . .
Cited – Ellis v Loftus Iron Co 1874
The pasturing of cattle must be one of the most ordinary uses of land, and strict liability for damage done by cattle enclosed on one man’s land if they escape thence into the land of another, is one of the most ancient propositions of our law. It . .
Cited – Pountney v Clayton CA 1883
Bowen LJ was asked as to rights of support to land. He said: ‘Prima facie the owner of the land has everything under the sky down to the centre of the earth.’ . .
Cited – Elwes v Brigg Gas Co 1886
. .
Cited – Mitchell v Mosley CA 1914
Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well . .
Cited – Bernstein of Leigh (Baron) v Skyview and General Ltd (Summary) QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
Cited – Kelson v Imperial Tobacco Company 1957
The defendant erected a sign which extended some 8ft into the plaintiff’s property.
Held: The plaintiff was entitled to a mandatory injunction requiring the defendant to remove the sign. The intrusion was a trespass. . .
Cited – Edwards v Minister of Transport 1964
The landowner claimed for injurious affection of the remainder of his land after part was acquired by compulsory purchase.
Held: The claim for injurious affection was confined to the effects of works and uses on the land taken. . .
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .
Cited – Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam PC 23-Feb-1939
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was . .
Cited – Logan v Scottish Water OHCS 1-Nov-2005
. .
Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – East End Dwelling Co Ltd v Finsbury Borough Council HL 1952
The house was asked whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts.
Held: Lord Asquith said: ‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless . .
Cited – Powell v McFarlane ChD 1977
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘In the absence of evidence to the . .
Cited – Porter and Another v Secretary of State for Transport CA 3-Jun-1996
No issue estoppel on land value arose from a previous Secretary’s finding on Lands Tribunal. . .
Cited – Chapman Lowry and Puttick v Chichester District Council LT 1984
. .
Cited – Batchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others PC 26-Nov-2009
(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are . .
Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – South Eastern Railway Co v London County Council 1915
Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’ . .
Cited – Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case) PC 1939
Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special . .
Cited – Swordheath Properties Ltd v Tabet CA 1979
The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises. Megaw LJ said: ‘It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – BP Petroleum Developments Ltd v Ryder 1987
Compensation was made on the basis of an increase in value from andpound;40 per annum per acre to andpound;45 for the rights over the additional land sought by the special purchaser, the increase being made ‘for him to be certain that he will . .
Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Cited – Director of Buildings and Lands v Shun Fung Ironworks Ltd PC 20-Feb-1995
Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the . .
Cited – Wrotham 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 – Horsford v Bird and others PC 17-Jan-2006
(Antigua and Barbuda) The Board was asked as to the damages to be awarded after the defendant had built a wall which encroached on the claimant’s land and appropriated some 455 square feet. Aggravated damages had been awarded. The court was asked . .
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Cited – Jaggard v Sawyer CC 1993
(Weymouth County Court) The court refused an injunction to a land owner who complained that a neighbour had erected a building over a right of way. The court awarded damages of andpound;694.44, being a proportionate part of the the sum he might be . .
Cited – 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 . .
Cited – Liverpool and Lancashire Properties Limited and Another v Lunn Poly Ltd and Another CA 15-Mar-2006
Where a tenant successfully obtained relief from forfeiture, and compensatory damages were payable under the 1858 Act in lieu of an injunction, and had assigned the lease for a profit the court could exceptionally use its equitable jurisdiction to . .
Cited – WWF (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 . .
Approved – Mercury Communications Ltd v London and India Dock Investments Ltd 1993
. .
Cited – Mercury Communications Ltd v London and India Dock Investments Ltd 1993
. .
Cited – Stebbing v Metropolitan Board of Works 1870
In compensation for compulsory purchase (in this case, of graveyards), ‘value’ means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector.
Cockburn CJ said: ‘When Parliament gives . .
Lists of cited by and citing cases may be incomplete.
Land, Damages
Updated: 31 October 2021; Ref: scu.421099
