“[39] There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux[2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y[2017] EWFC 36 [2017] 4 WLR 136 . Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) at [96]: “i) Gestmin: (1) We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. (2) Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. (3) Events can come to be recalled as memories which did not happen at all or which happened to somebody else. (4) The process of civil litigation itself subjects the memories of witnesses to powerful biases. (5) Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. (6) The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. ii) Lachaux: (7) Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd’s Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd’s Rep 1 , 57. I extract from those citations, and from Mostyn J’s judgment, the following:- (8) “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” (9) “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” (10) Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” iii) Carmarthenshire County Council: (11) The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context. [40] This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham’s paper on “The Judge as Juror” (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness’s evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness’s demeanour was listed last, and least of all. [41] A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant’s credibility. As the High Court put it at [47], “their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …”
“[45] Judges have for many years remarked on the vulnerabilities of evidence as to what witnesses remember. Popplewell LJ recently discussed human memory and how witnesses can come to give mistaken evidence in his 2023 COMBAR lecture, Judging Truth from Memory: The Science. In Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3560 (Comm) , [2020] 1 CLC, at paragraph 22, Leggatt J went so far as to suggest that “the best approach for a judge to adopt in the trial of a commercial case is … to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”
“1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory: (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”
“It is difficult to directly compare observations from12th October 2022 with20th December 2022 because the river was in different status on each occasion. The JBA report [of Mr Benn] documents a site visit when the river was in spate whilst observations from12th October 2022 are when the river was at base flow (“normal flow”) conditions. During base flow it was possible to enter the channel and fully inspect the entire structure and also examine the bed of the channel. Whilst the exact timing of the20th December 2022 visit is unknown, on the day of visit, the river level at Croft gauging station was a minimum of 1.22 m which would have drowned most of the structure upstream and river bed features versus a minimum of 0.618 m on12th October 2022 which allowed a full inspection of the river and bed upstream and downstream of the structure.”
“The right hand channel [the South Channel] is not a permanently wet watercourse, under most flow conditions the river passes down the other side of the island and passage for all fish, not just migratory salmonids is uninhibited. The right hand channel only takes water when the river is in elevated flow conditions, at which time, coarse fish will not be migrating and salmon and sea trout would naturally follow the main flow i.e. using the left hand channel and be unaffected by the structure.”
“The conveyance also grants rights which benefit the registered estate”
“what is the effect when the person disturbing the right to a profit aprendre is a person doing an act which, unless his grant of a profit aprendre prevents him, he has a right to do as owner of the land affected ?Is he derogating from his grant, or is his grant subject to the implied term that he may use his land in an ordinary and legitimate way, so long as he himself does not sport, or himself take the profit aprendre, or wilfully damage the right to the profit aprendre?”
“ May a landlord who grants sporting rights over a farm for valuable consideration, turn the whole farm into building land?I think Jessel M.R. would have stopped him: Pattisson v. Gilford. On the other hand, Gearns v. Baker shows that the landlord could not be interfered with in cultivating the farm in the ordinary way and changing its cultivation in the ordinary way, though it lessened the amount of game, or the sporting amenities. What is the difference? It appears to me that fundamentally changing the character of the land over which sporting rights are granted, though it is not with the deliberate intention of injuring the sporting rights, and though it is a thing which a landowner would have power to do if he does not injure the rights of others, if it has the necessary effect of substantially injuring the rights of others is derogation from the grant, and is a substantial interference with the profit a prendre granted. If this is true of building affecting the whole land, or cutting down all the timber on the land for sale: see per Eve J. in Dick v. Norton (1), it appears to me to be true of partial changes in the land, provided they substantially injure the rights granted. In the present case a farmer has sold a substantial part of the land over which sporting rights are granted for the purpose of erecting a training stable for thirty-six horses with cottages for attendant stable boys and caretakers. The judge has found that this substantially affects the .sporting rights. I should doubt myself, when the stables for thirty-six horses and the six stable boys are in occupation, whether a game bird would be left within a quarter of a mile of the stables. In my opinion this is a derogation from the grant, and an infringement of the rights of profit a prendre, and a breach of the covenant of quiet enjoyment, and the plaintiff is entitled to the damages awarded.”
“I can quite understand that a grant of sporting rights over land which had already been partly developed as building land would not prevent the owner from going on with his plans and building houses from time to time ; but I regard the lease of sporting rights in this case as a lease of rights over farm lands. Though such a grant would not operate to restrain the landlord from interfering with the sporting rights by carrying out any reasonable and normal operations which might be deemed advisable for the purpose of dealing with the land to the best advantage as farming land, he would have no right to put the land to uses which have nothing to do with farming requirements, so as to oust entirely the sporting tenant from exercising his rights over a substantial part of the land included in the grant. … In my judgment, what the defendants were threatening to do by their conduct, if not restrained by injunction, was to entirely prevent the plaintiff from exercising any shooting rights over 12 acres of the land over which his lease gave him shooting rights and, I think, also to damage to some extent his shooting rights beyond that area by frightening the birds away. I think this would have derogated from the incorporeal hereditament which had been granted to the plaintiff, that it would have been a breach of the covenant for quiet enjoyment, and therefore that a good case was made by the plaintiff for an injunction or, if the Court decided to give damages in place of an injunction, a good case for damages which would be a sufficient substitute for the injunction to which he would otherwise have been entitled.” … In my judgment, what the defendants were threatening to do by their conduct, if not restrained by injunction, was to entirely prevent the plaintiff from exercising any shooting rights over 12 acres of the land over which his lease gave him shooting rights and, I think, also to damage to some extent his shooting rights beyond that area by frightening the birds away. I think this would have derogated from the incorporeal hereditament which had been granted to the plaintiff, that it would have been a breach of the covenant for quiet enjoyment, and therefore that a good case was made by the plaintiff for an injunction or, if the Court decided to give damages in place of an injunction, a good case for damages which would be a sufficient substitute for the injunction to which he would otherwise have been entitled.”
“ From the authorities it would appear that injury to shooting rights arising from the ordinary management of land is not an injury of which the shooting tenant can complain. In Gearns v. Baker it was held that a landowner who has demised the right of shooting is not prevented from cutting timber as he thinks fit in the ordinary management of his land although injurious to the shooting. …. This case [Gearns v Baker] is thus clear authority for the proposition that were Mr. Best or Mr. De Mestre, the assign, to do something which landowners reasonably do in dealing with their estates, there could be no complaint by the shooting tenant. This principle has been applied also to a failure to do that which may be necessary to preserve the shooting. ….. On the other hand, on a covenant for quiet enjoyment, if the facts show that the act of the landlord goes beyond what is reasonable in the management of his estate, or in effect deprives the tenant of that which he bargained for under the covenant for quiet enjoyment, notwithstanding certain dicta (such as those of Mellish L.J. in Gearns v. Baker and Willes J. in Jeffryes v. Evans, that the landlord is only liable on the covenant when he intentionally injures the shooting rights), I think that if such injury is the reasonable result of his action the tenant can complain. The rule that a lessor may not derogate from his grant applies to profits a prendre as well as to corporeal hereditaments, and the lessor of shooting rights must not do that which would annihilate the rights which he has granted :Fitzgerald v. Firbank. In the present case the learned judge, having heard the evidence, has come to the conclusion that the plaintiff has suffered damage from the physical obstruction of the shooting rights. He has not found, nor indeed was it seriously suggested, that the use of the land for racing stables was in any way reasonably necessary or at all connected with the farm management. I think this is a case where the injury done cannot be said to fall within the principle of Gearns v. Baker (4), and that what was done was not for the management of the land ; rather does the case resemble Dick v. Norton (2), where the timber was felled solely for mercantile purposes, in which case damages were given by an experienced Chancery judge.”
“It is not in dispute that the claimant must show that there has been an interference with the reasonable exercise of its rights, or in other words that there has been a fundamental change in the character of the servient land”
“in my judgment the works carried out on the servient land from May 2017 to April 2018 taken as a whole constituted a substantial interference with the rights. The nature of them was industrial and had nothing to do with agriculture and accordingly they amounted to a fundamental change in the character of the land, albeit only a small part of the servient land. They had the effect of excluding the compound, the splay, the spur road and the access road from the exercise of the rights. I take into account that the field in which the compound was placed is likely to have been grazed during this period if the works had not been carried out, so as to preclude shooting towards the field. However, it is not just the effect of exclusion which must be taken into account, but also, as in the Well Barn case, the effect of noise and dust on the surrounding areas.”
“ [114] … Lord Leggatt…considers the twin requirements that in order to be actionable the interference with the claimant’s land must be (i) substantial and (ii) such as to interfere with the ordinary use of land. So far as the requirement that the interference is substantial is concerned, Lord Leggatt at [22] cites the statement of Lord Wensleydale in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 at 653f that: “the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”
“The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd[2013] QB 455 , para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.” [115] Pausing there, this discussion of the “substantial” element of the test for actionability is to my mind revealing. It shows that the test for what crosses the threshold of actionability is not concerned with the particular claimant and their particular attributes and sensitivities, but with an objective standard, that of the ordinary or average person. So if the particular claimant is more than ordinarily sensitive, they cannot make a claim for things that would not materially inconvenience the ordinary person. This, as Lord Leggatt explains, is consistent with the fact that nuisance is a tort to land. The interest protected is not the individual claimant’s comfort; it is the utility and amenity of the land itself, measured by the impact on ordinary and average occupiers. “the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”
“The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd[2013] QB 455 , para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.”
“that it is the duty of all the parties interested in the said right of way so to arrange the use of the same as best to facilitate the use of it for the others interested therein; and that the said persons interested therein are not entitled to place or leave any stationary obstruction in such roadway, except at such times as the place or leave any stationary obstruction in such roadway, except at such times as the use thereof is not required for any other of the persons interested therein; and if when so occupied the use of the roadway is required by any other person entitled to use the same, the person placing such obstruction in the roadway is bound forthwith to remove the same.”
“It must not be forgotten that this is not a highway; it is a private road. It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is a wrong if it is appreciable. That I think is the recognized distinction. Any appreciable obstruction in a highway can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way.”
“In the absence of any such express limitation [that is as a matter of construction of the grant that access was limited to a specific point or route], and of anything to shew that the right as claimed is unreasonable or destructive of the object of the grant, I am unable to see any ground on which any obligation to elect one line of access can be implied”
“ “ You shall not put any fence or wall on your own land, because I want the people to admire my goods by coming over the blue land into the triangular piece so that they will get a better view than they can from the street.”
“so long as there is reasonable access to the land, and a reasonable opportunity of exercising the right of way, there is not any obstruction to it, and there is no derogation from the grant.”
“I think the obligation is that, assuming the right of access from each part of the land from which access is required to any part of the way, such access shall be given as will be reasonable. It is obviously difficult to explain, but it is an inevitable word, I think. It means such access as will give reasonable opportunity for the exercise of the right of way, or, to put it in another way, such access should be given as will not be a derogation from the grant of the right of way.”
“First, that, where a right of way exists in respect of a strip of land it is not necessarily open to the grantee to complain of obstacles on every part of the strip; he can only complain of such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenant. …. I would remark that it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required. (I am, of course, talking now about private rights of way.)”
“Held (reversing Clauson J on the first point) that disturbance of a several fishery is an invasion of a legal right, and in such a case it is not necessary to prove pecuniary loss, but the injury to the legal right carries with it the right to damages.”
“That therefore defines the right, and it also defines the cause of action which follows from an infringement of that right. It is not, I think, material to decide whether the proper description of that cause of action is trespass, or trespass on the case or nuisance, forms of action which are now abolished. If it were described as " nuisance "the word " nuisance " would be used in that connection as meaning a private nuisance, one which involved an interference with a private right, so that, as I shall explain in a moment, an action would lie for that interference. Rigby L.J. at the end of his judgment says: " I hold that the grantees of the incorporeal hereditament have a right of action against any person who disturbs them either by trespass or by nuisance, or in any other substantial manner," that is to say, any disturbance which the law recognizes as constituting a disturbance. Now that being the state of things, you have here a form of action in which damage is not the gist of action. The matter is very clearly stated in a work, fortunately not a work of authority, but to which we are all as lawyers indebted, Sir Frederick Pollock's Law of Torts ; I just want to read one very short passage on p. 391 of the 13th ed. The learned writer is referring to easements; he says this: " Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage ; the action was on the case under the old forms of pleading, since trespass was technically impossible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff's option." The words apply exactly to the present case, and I accept them as part of my judgment. Child v. Greenhill 4 Cro.Car 553, which I have cited, is a case where there was trespass in the strict sense of the term, that is to say, direct interference with the physical property of the plaintiff. Fitzgerald v. Firbank [ 1987] 2 Ch 96 which I have also cited, is a case of trespass on the case or nuisance where the damage was to an incorporeal hereditament; both these are cases covered by what the learned writer has stated. Harrop v. Hirst (1868) LR 4 Ex 43, to which Sir Frederick refers, is an authority again for the proposition that if you have an infringement of a legal right there is a right of action without actual damage being proved. The claim was for diverting water, and it was held that an action for diverting water is maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff's legal rights. Although that is a reason which is emphasized in that case, and for which there is good authority and good ground, the ability to maintain such an action without proof of actual loss depends on a much wider principle, that is, the principle that where you have an interference with a legal right the law presumes damage.”
“The cases in which actions are not maintainable without proof of actual damage, that is to say, where damage is the gist of the action, and where the cause of action is not complete without proof of damage, fall into a different category. The most obvious and familiar is an action for negligence regarded as an independent tort; malicious prosecution is another; so also conspiracy to injure and deceit and, subject to certain exceptions, slander. In all these cases there is no actionable wrong unless damage has been caused to the plaintiff by what has been done or omitted. Thus, in the case of negligence, the plaintiff is not entitled to complain unless he is injured by the negligence; otherwise the negligence does not interest or concern him; the same is true of conspiracy; so of deceit; there is in those cases no interference with a right, no disturbance or invasion of a right of property or any other right; thus, e.g., the cause of action is not merely that the defendant was negligent, but he was negligent in such a way as to damage the plaintiff.”
“There must be, in the words of Rigby L.J. in Fitzgerald v. Firbank (2), a substantial interference, but that does not affect in any way the view which I have stated-namely, that the trespass or interference with the right imports damage so long as it is something which the law can fix upon as being sufficiently substantial to constitute an interference. Where you have such a case the damages are at large; they are a matter for the jury; and if the Court of Appeal were giving judgment for damages in a case where the judge below had failed to award damages, then the Court of Appeal would have to award the damages just as a jury would do; they can, of course, refer the matter, but they are entitled to give damages.”
“ (1) that the amenity of a property, for the purposes of the tort of private nuisance, did not include the right to realise or otherwise deploy the value of the property in the financial interests of the owner, and so the presence of Japanese knotweed on land did not constitute an actionable nuisance simply because it diminished the market value of a neighbouring owner’s land But (2), dismissing the appeal, that the mere presence of Japanese knotweed, or its rhizomes, on land interfered with the amenity value of that land without proof of further damage, because it imposed an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop and in the cost of developing the land, should the owner wish to do so; and that, accordingly, given the findings of the recorder, the tort of private nuisance had been made out.”
“[40] First, a private nuisance is a violation of real property rights. That means that it involves either an interference with the legal rights of an owner of land, including a legal interest in land such as an easement and a profit a prendre, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession…. [41] Secondly, although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them. In Hunter’s case at p 695C, for example, Lord Lloyd said that nuisances are of three kinds: “(1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.”
“The proposition there laid down amounts to this, that wherever one man does an act which, if repeated, would operate in derogation of the right of another, he is liable to an action without particular damage at the suit of the person whose right may be affected. Among the authorities in support of this proposition may be mentioned Bower v. Hill 1 Scott, 526 an action for obstructing the plaintiff's right of way by the erection of a tunnel, where Tindal, O.J., thus expresses himself: "The erection of the tunnel is to be considered as a permanent obstruction to the plaintiffs right, and therefore an injury to the plaintiff, even though he receive no immediate damage thereby. The right of the plaintiff to this way is injured, if there is an obstruction in its nature permanent. If acquiesced in for twenty years, it would become evidence of an abandonment and renunciation of the right of way. That is the ground on which a reversioner is allowed to bring his action." If, then, the defendant in this case, being the owner of lands through which the stream supplying the spout flows, abstracted the water from time to time in such quantities as not to leave enough to meet the exigencies of the inhabitants of the district, he did an act, which might be used hereafter as evidence of a right in derogation of the rights of the inhabitants, among whom were the plaintiffs. Therefore, although they themselves suffered no personal or particular actual damage, I am of opinion that they are entitled to maintain this action. This rule must accordingly be discharged.”
“…it is no excuse to the Defendants, that the Plaintiff has voluntarily suffered an accretion of the mud, which he might remove at any time when he thought fit. The voluntary suspension by the Plaintiff of his exercise and enjoyment of a right, can form no justification to the Defendants for preventing him from the possibility of enjoying it. Upon the more general ground, therefore, that the erection of the bridge and tunnel is an immediate injury to the Plaintiff, by putting his right into hazard, and by preventing the actual enjoyment of it whenever he thinks fit to resume it, independently of the narrower ground on which we first relied, we think this action maintainable ; and that the rule for a new trial must be made absolute.”
“[27] It is not essential to show actual loss to succeed in obtaining an award of damages or an injunction. Nicholls v Ely Beet Sugar Factory Ltd (No 2)[1936] Ch 343 involved an allegation that effluent had been discharged on two occasions from a sugar factory into a nearby river, thus prejudicing fisheries. The judge dismissed the claim on the basis that no pecuniary loss and no causation had been established. On appeal Lord Wright MR at page 349 observed that no actual damage need be shown in order to obtain an injunction.”
“it has been used by locals for scores of years. Any inspection of the pathways either side of the stile will indicate frequent current use i.e. it is a common usage path.”
“It has, however, been used by illegal motorbike riders and mountain bikers. In an effort to prevent their access we had placed and fixed a sturdy wooden fence post across the top. This was torn down on FOUR separate occasions, including the signage pointing out that there was no public right of access. It was replaced by a metal bracket. This was also torn down as was the signage again! This has now been replaced with new signage and razor wire.”
“That said I would like to point out that some of your parishioners think that Dalton Woods is their property and they have every right to come and go as they wish. They have written vexatious letters to most of the public bodies from the woodland trust to the environment agency to Richmond District Council etc all have been dismissed!! They have been responsible for repeated vandalism to the fencing and signage in the wood. The wooden fences on the boundaries with Spoilbank woods and Dalton Batts have been torn down and the signs removed on no less than six occasions over the last two years! As a last resort we have used razor wire to prevent this happening again. The police are currently investigating certain incidents where signage has been stolen and damaged. For the avoidance of doubt Dalton Woods is private land there is no public right-of-way other than that way marked along its boundary with Dalton Village and on to Eryholme.”
“people in the past who were caught trespassing in the woods were always warned they were committing an illegal act and asked to leave immediately. This has always been the case. Over the decades this had never been an issue however since the advent of the mountain bike illegal riders have been lifting their bikes over the low fence. We replaced the wooden fence with a higher one. Within a week it was destroyed! We replaced it again! And again and again, we replaced it yet again this time with ordinary barbed wire. Within a couple of weeks it was cut and the wooden fence destroyed together with the “keep out” signs! Now we have razor wire with vandal proof paint. IF any of your parishioners should be caught destroying this fence again we will prosecute for criminal damage and aggravated trespass. You don’t seem to understand this is private land and your parishioners have absolutely no right of access.”
“that an injury had occurred as a result of razor wire having been attached to the boundary fence separating your property and that of the woodland trust. I understand the razor wire was placed on the fence by you. We must insist that any razor wire attached to the boundary fence is removed immediately before any further injuries occur” (2) By letter dated03 July 2019 , again addressed to Mr Pickersgill, the Woodland Trust wrote again, referring back to their earlier letter of23 May 2019 and refer to new items of razor wire: “It has now come to our attention that you have placed an additional stretch of razor wire between the road and a stile. In addition, it has alarmingly come to our attention that you have placed a number of angled iron fencing stakes in the ground within Woodland Trust property and suspended additional razor wire from these stakes. This presents a significant hazard and risk to the public. You are required to take action urgently and, in any event, no later than5 July 2019 , to remove all razor wire attached to the boundary fence of Spoilbank Wood, the razor wire between the road and the stile and all iron fencing stakes and the suspended razor wire which have been placed in Spoilbank Wood.”
“We understand your query related to your clients taking legal action against the Woodland Trust in relation to their fishing rights being hindered. We are not aware of any persons fishing rights being hindered and this is not something which the neighbour has raised in discussions or correspondence. As this is the first we are hearing of this issue can you please provide details of the complaint so that we can investigate the matter further.”
“We were instructed to request that a padlocked gate, to which our client holds a key, be added to the fencing, so that it may be provided access to the riverbank. In an email from yourselves dated29 October 2021 , you stated that whilst your client does not wish to deny our client its rights, it is in dispute with Mr Pickersgill in respect of the fence line and is unable to take any unilateral action. Our client was asked to bear with your client until the dispute is resolved. Our client, however, is unwilling to wait an indeterminate amount of time for the conclusion of a dispute between other parties before it is afforded its rights. Our client therefore requests that an agreement be reached between all interested parties for a padlocked gate to be put in the fence, failing which we anticipate being instructed to issue proceedings for injunctive relief, damages and costs. As such, we have written to Mr Pickersgill advising that, should he not agree to the construction of a padlocked gate in the fence, it is likely that proceedings will be commenced against him for unlawful obstruction of our client's rights.”
“According to you, the current fencing was constructed by The Woodland Trust, though over the years, fencing in roughly that position has been knocked down by persons unknown and has had to be reinstated on a number of occasions, with both you and The Woodland Trust historically effecting its reinstatement. Correspondence with solicitors acting for the Woodland Trust has indicated that, whilst The Woodland Trust does not want to interfere with the rights of our client, it is unwilling to undertake any unilateral action in respect of the fence due to an ongoing dispute it has with you over the fence’s position.”
“Our client has never refused your client lawful access to the riverbank. If you clients want to install a gate at their expense with a padlock on it into the fence owned by The Woodland Trust then the best course of action is for your client to approach The Woodland Trust. Provided our client has a key to the gate and the gate is monitored correctly by your client's authority to ensure that it is used correctly and only by fishermen, then our client has no objection to that. The reality is that your client will however need to take it up with The Woodland Trust because they are the people who have put the fence in and technically they own the fence which you clients have damaged.”
“6. Conclusion Considering the above and particularly referring to the photographic record of the route contained in Appendix E I conclude my opinion on the following points are: 1. The works undertaken by the Defendant and the use of the riverbanks by trials bike riders along with earthworks and other obstacles and gullies do not interfere with the use of the riverbank for the Claimants members in exercising the fishing rights and to the extent that the tree canopies provide more interference to the Claimant on the Defendants and neighbouring property than the Defendants current use, the Defendant’s use has potentially resulted in providing better and more convenient access to the Claimants members in exercising fishing rights on the River Tees. 2. The riverside path was found to be accessible and useable by an able-bodied person during the inspection on the8 August 2024 and it is considered typical of a rural public footpath. 3. It is considered that there is no interference with the Claimants members use of the riverbank in terms of exercising their right to fish however it was noted that the tree canopies and overgrowth would benefit from being cleared in places if the claimant had desire to fly fish from the riverbank particularly the northern riverbank of Dalton Island where the main flow of the River Tees was present. 4. It is considered that there are no works required, however the suggested tree pruning works could be quoted for by contacting a competent arboriculturist.”
“28.13 Motorcycle riders routinely drive along the riverbank in close proximity to the Claimant's members making it difficult for the Claimant's members to exercise lawful user of the right to fish. 28.14 Further, the Defendant has personally accosted anglers who are lawfully using the rights of the profit on his land, informing them that he and not the Claimant owns the Fishing rights. 28.15 In addition the Defendant has also remonstrated with anglers fishing the river from the North (Durham) bank who have crossed the mid-stream line to fish the river from the Defendant's land, wrongly informing them that they are unlawfully using his fishing rights. 28.16 The Defendant through the Facebook page of the Croft Trials Club has encouraged his members to treat the members of the Claimant Association as trespassers and to challenge them and ask them to leave his land.”
“ (4) An injunction prohibiting the Defendant by himself or his licensees from interfering with or otherwise accosting the Claimant's members whilst they enjoy their fishing rights.” “(5) An injunction preventing the riders of the Croft Trials Club or any of the Defendant's visitors or licensees from coming within 10 metres of the water's edge or the Claimant's members whilst they are on the Defendant's land.”
“(5) The Defendant agrees that he will not permit any riders of Croft Trials Club (or any other rider operating from the land with the consent of the Defendant) to ride within 8 metres of any angler (being a person exercising the rights as granted under the Deed dated6 May 1949 ). (6) The Defendant agrees that he will notify all members by email, Facebook and application form and will erect a notice in the vicinity of the entrance to Croft Trials Club to the following effect: a) Not to approach within 8 metres of any angler; b) If they encounter any angler on the pathway, the rider is to divert their path to allow right of way to the angler; and c) If any rider is found to have breached any of the above directions then they will be excluded from the Croft Trials Club.”
“IMPORTANT NOTICE Thornaby Anglers • Riders are not to approach within 8m of any Angler. • If you encounter and Angler on the pathway of the riverbank the rider is to divert their path to allow right of way to the Angler. • Any rider found to have breached the above directions will be excluded from Croft Trials Club. CROFT TRIALS CLUB” • Riders are not to approach within 8m of any Angler. • If you encounter and Angler on the pathway of the riverbank the rider is to divert their path to allow right of way to the Angler. • Any rider found to have breached the above directions will be excluded from Croft Trials Club. CROFT TRIALS CLUB”
“Be aware of walkers, who may cross on the public footpath at the top of the track. Only members and their guests are allowed into Dalton Woods. If you see walkers other than on the public footpath, take a photograph and report to the marshals or to the club. Members of Thornaby Angling Association may pass only along the riverbanks for the purpose of fishing. Do not ride within 8m of any angler. Stop your machine and allow them right of way.”
“I have read the Croft Trials Club Rules pertaining to Dalton Woods and agree to be bound by them.”
“We have recently been receiving reports of people poaching on our waters at both Gilling & Croft, Please read the Angling Trust guide for reporting offences to the police. In the first instance unless you feel it unsafe you should approach them politely to ask if they are members and if so to produce their cards. If they are not carrying their TAA cards request they leave immediately.If they refuse to leave or are threatening then call the police. Please no heroics.”
“Pipe at Croft Batts This obstruction has still not been removed. The N.R.A [National Rivers Authority] are to be contacted re this. If no action is taken the TAA will press for compensation and loss of fishing rights”
“Correspondence NRA re Pipes being blocked at Dalton Batts. After a complaint by the sec[retary] the N.R.A. are now dealing with Mr Pickersgill regarding these pipes. The whole situation is now being dealt with by the N.R.A. Legal Department.”
“Pipes at Croft It was reported that these pipes were now clear and that the boulders had been removed although a gravel bar had appeared just above. N.R.A to be informed.”
“It was reported that no flow is getting down the island side. An effort is to be made to have the gravel bar removed.”
“R Barnes reported that the back of the island at the Batts is totally impossible to have flow at normal levels. The N.R.A. & Land Drainage are to be contacted on this issue.”
“Length = 25 metres Width (upstream to downstream) = 3.1 – 4.0 metres height of the causeway above riverbed level = 1.60 metre Minimum height of the causeway above riverbed level = 0.70 metres”
“33. A subsequent survey taken on27/04/2023 showed the measurements of the new dam to be 21.2m long, 5.64 m wide and 1.05 m in height (post collapse).”
“At the time of survey, silt material was deposited on the riverbed of the Tees, directly upstream of the causeway, as a result of flow impoundment. The silt material is likely to have entered the channel from the right bank, which has been poached by motorbikes. A large berm feature was recorded at the right bank channel margin, where fine material has accumulated.”
“3.1 Potential impact of sediment release from the causeway removal works The proposed causeway removal works are expected to restore longitudinal connectivity of flow in the southern channel of the Tees. This is expected to increase flow velocities within the southern channel. During a flood event, it is predicted that the accumulated sediment material (upstream of the causeway) will be mobilised and during a flood event, it is predicted that the accumulated sediment material (upstream of the causeway) will be mobilised and transported downstream, re-distributing the sediment material naturally over time. It is anticipated that the re-mobilisation of sediment and transport further downstream will not be immediate and instead will be a gradual process, governed by the frequency of future flood events. … 3.2 Potential impact of sediment removal works There is an option to remove the silt material that has accumulated upstream of the causeway. The River Tees is a flashy watercourse, with frequent peak flow events. As such, it is likely that any bed material removed from the watercourse will be replenished with material from upstream during peak flow events. There is a risk, however, that the proposed sediment removal works could result in bank instability at the site location if sediment is not replenished relatively rapidly. The large berm feature observed on site may be providing structural support to the right bank. 4. Recommendations and Next Steps It would be preferable to allow the River Tees to naturally mobilise and transport sediment which has accumulated in the vicinity of the existing causeway. It is expected that the riverbed will regrade naturally over time after the causeway removal works. As such, further in channel works may not be necessary….”
“I understand you are removing the metal grids/grill to repair the footpath one [sic] your land, in accordance with your current exemption. You can’t remove the materials from the causeway UNTIL you have been issued with Flood Risks Activity Permit” under the 2016 applicable regulations. 386. Mr Pickersgill replied by email later the same day: “Yes, we lifted this loose piece of debris from the side of the Causeway, as we did not think it was relevant to the application. The entirety of the Causeway is still as was. It would appear that Thornaby Anglers installed an illegal CCTV camera at the side of the Causeway. Rest assured no we will not undertake any further works until final approval.”
“Whilst clearly at an early stage, the photographed operations appear consistent with the permitted activity to remove the structure.”
“There appears to be unimpeded flows down the side channel, and the plug of gravel upstream of the ford has been washed out as predicted. Downstream of the ford site, the channel appears to be diverse, with varied flow types and several active depositional features. There are still several unnatural artifacts present at the ford/causeway including some old brick and concrete fragments, but it is unclear whether these we part of the ford, or simply a legacy of the historic usage of the area. Importantly and as stated above from an Environment Agency perspective and fluvial morphological standpoint, these are not having a negative impact on the forms and processes within this reach. Remaining proportionate to the low-risk nature of the issue there is no requirement currently from the Environment Agency for any further removal of this material that would require the benefit of an Environmental Permit.”
“10. We agree that there is little value in further work to alter bed levels in the southern channel upstream of the former causeway. We believe the river will create a route for flow from natural sediment distribution during flood events over a period of time– but any man-made intervention would be short-lived.”