Williams v Johnson [2015] EW Misc B45 (CC) (14 December 2015) [2015] EW Misc B45 (CC)

EWMISC
Williams v Johnson [2015] EW Misc B45 (CC) (14 December 2015)
[2015] EW Misc B45 (CC) · 2015-12-14
[1]Draft made available to the parties on 30.11.15 Judgement to be handed down on 14.12.15a. A. Introduction 1b. B. The respective purchases 2 - 6c. C. The parties & other relevant persons 7 - 8d. D. The boundary and the fences 9 - 16e. E. The defendants' asserted right of way over extended blue land 17 – 25 F: The restrictive covenant in clause 2 (i): buildings 26 - 47 G: The restrictive covenant in clause 2 (ii): user 48 – 66 H: Land drainage issues General layout 67 – 68 History 69 – 91 Expert evidence from water engineers 92 – 95 Issues relating to drains 1 & 2 96 – 113 Issues relating to drain 4 114 – 135 Issues relating to drain 3 136 – 149 The related claims for damages 150 – 162 I: Claims for nuisance and harassment 163 Threatening and abusive behaviour 164 – 215 Trespassing on Wells Farm 216 – 219 Tipping of rubble on Lychcroft 220 – 238 J: Conclusion 239 A: Introduction The claimant and the first defendant are neighbours in Cradley in Herefordshire. The adjoining properties are in rural or farming countryside close to the Malvern Hills. Sadly the parties have fallen out. As a result, it is necessary for the court to consider a number of issues, including the following:(1) A boundary dispute, including a dispute about an asserted right of way;(2) Claims to enforce restrictive covenants contained in the operative conveyance relating to: (a) the construction of buildings (b) the use of land; and (c) the prevention of nuisance, in particular as regards (i) conduct and/or harassment; (ii) the cause of flooding on the claimant's property; (iii) the tipping of rubble on the defendant's property(3) Depending on the findings made, the nature of the appropriate relief, including in particular whether any injunction should be granted. B: The respective purchases[2]In 1987 Bill and Molly Williams (the claimant's parents) purchased what was then known as "Wells Farm": see paragraph 3 of the particulars of claim. The relevant conveyance is dated 27 May 1987 and is at annex C to the particulars of claim (pages A/30-34).[3]Some three years later, Bill and Molly Williams sold the northern part of Wells Farm to the first defendant and his wife. The relevant conveyance is dated 21 May 1990 and is at annex D to the particulars of claim (pages A/35-42). A comparison of the respective plans indicates that the land sold to the first defendant and his wife (to which I shall refer generally as "Lychcroft") was rather larger than the land which Bill and Molly Williams retained (to which I shall refer generally hereafter as "Wells Farm").[4]Clause 1 of the conveyance dated 21 May 1990 reserved to Bill and Molly Williams the rights and easements set out in the first schedule. Those included:
"1. A right of way at all times and for all purposes ... over and along the shared access driveway shown coloured blue and forming part of (Lychcroft) for gaining access to and egress from (Wells Farm). 2. Full and unrestricted right at any time hereafter and from time to time to erect or permit to be erected any buildings ... upon any part of the retained land (i.e. Wells Farm) ... 3. A right to enter upon (Lychcroft) for the purposes of constructing any drain sewer soakaway main cable or other service which it may be necessary or desirable for the vendor to construct for the benefit of (Wells Farm) 4. A right to use and make connection with the drains sewers soakaways and main cables and other services made or laid now or within 80 years of the date thereof under (Lychcroft) or any part thereof and a right to enter into ... (Lychcroft) for the purpose of inspecting cleansing repairing and maintaining such drain sewer soakaways main cables and other services, the person exercising such rights making good any damage caused."
[5]Clause 2 of the conveyance dated 21 May 1990 provided:
"The purchasers to the intent and so as to bind (Lychcroft) into whosoever hands the same may come hereby covenant jointly and severally with the vendors for the benefit of (Wells Farm) and any part thereof (i) no building shall be erected upon (Lychcroft) ... without the previous consent in writing from the vendors (ii) no trade or business shall be carried on upon (Lychcroft) or any part thereof nor shall the same be used otherwise than as a private dwellinghouse (iii) not to do or keep or suffer to be done or kept on (Lychcroft) or any part thereof any act or thing which may be or become a nuisance annoyance or cause inconvenience to the vendors their successors in title owners and occupiers for the time being of (Wells Farm)."
[6]Clause 3 of the conveyance dated 21 May 1990 provided:
"The purchasers hereby covenant jointly and severally with the vendors and their successors in title that the purchasers and their successors in title will: (i) within 28 days of the date thereof erect and forever thereafter maintain repair and renew a stockproof fence between the points marked A-B-C-D-E on the plan (ii) forever hereafter repair maintain and relay as necessary the shared accessway shown coloured blue on the plan."
C: The parties & other relevant persons[7]The claimant lived at Wells Farm as his main residence from 1987, when his parents purchased Wells Farm, until 1995: see paragraph 4 of his witness statement (B/170). Bill Williams died in December 1995: see paragraph 15 of the particulars of claim, and paragraph 4 of the claimant's witness statement. From 1995 to her death in January 2001 Molly Williams was the sole resident at Wells Farm. Shortly after she died the claimant returned to live at Wells Farm: see paragraph 4 of his witness statement. The claimant's date of birth is 8 July 1963, so he is now 52 years old. He is a salesman, who "runs a business selling environmental equipment from Wells farm where I live with my wife Swarni": see paragraph 2 of his witness statement. Swarni Williams' date of birth is 3 September 1971, so she is now 44 years old. She is Sri Lankan by origin and has lived with the claimant at Wells Farm since 2004: see paragraph 2 of her witness statement (B/290).[8]The first defendant has been a farmer all his life in the Herefordshire area: see paragraph 1 of his witness statement (B/318). His date of birth is 8 April 1924, so he is now 91 years old. He used to live at Woodend Farm, which is also in Cradley, before moving to Lychcroft. His son Ian Johnson, resides at Woodend Farm where he has always resided; he is also a farmer. His date of birth is 19 September 1965, so he is now 50 years old. D: The boundary and the fences[9]There is much dispute about the precise circumstances in which the original fence as defined below was erected. The claimant contends that it was in fact erected well within Wells Farm land, while in contrast the defendant contends that it was erected on Lychcroft land. The claimant does not contend that he was present when his father, Bill Williams, discussed the precise location of the boundary, and thus the fence which was to be erected thereon or thereabouts, with the first defendant in 1990. Instead his case is based on conversations which he subsequently had with his father on the topic. The first defendant is able to give direct evidence about such discussions. However he is 91 years old, and such evidence relates to matters which occurred some 25 years ago. In such circumstances, the court will have particular regard to any contemporaneous documentary evidence.[10]I make the following findings of fact:(1) In 1990 a fence ("the original fence") was erected along the north side of the drive leading from the shared accessway down to the sheds shown in each of the title plans at annexes A and B to the particulars of claim. As regards the greater length of the original fence - from its eastern end up to the large brown post shown in the middle of the photograph at annex F (ii) to the particulars of claim ("the large brown post") - it was a three-bar a wooden fence (the bottom bar being at ground level) as shown in the distance in the photograph at exhibit N (iii) to the particulars of claim, and also in photograph F12 taken in the course of the trial. As regards the lesser length of the original fence - from the large brown post to the shared accessway – there was first a gate (which the claimant referred to in paragraph 9 of the particulars of claim as "Gate 2") and then a further length of three-bar wooden fence as shown in the photograph (dated 1998) at annex F (i) to the particulars of claim. That photograph is out of focus and somewhat unclear: Mr erduyn stated in opening that it had been taken from inside a motorcar while it was raining. Nevertheless it is - just - possible to discern the general arrangement at that time. The large brown post is clearly discernible; as stated above: to its west was a gate, though its precise nature and detail cannot be discerned from that photograph; and then to the west of that gate towards the shared access is a further length of three-bar wooden fence.(2) By 2009, as regards the lesser length of the original fence, the first defendant had removed the original length of three-bar wooden fence and replaced it with a somewhat ramshackle affair, comprising hurdles and a small pair of seven-bar galvanised iron gates as shown in the photograph (dated 2009) at annex F (ii) to the particulars of claim. There was however considerable confusion in the course of the claimant's oral opening at trial about the large seven-bar galvanised iron gate also shown in the photograph at annex F (ii) to the particulars of claim, which the claimant had marked as "gate 2". In paragraph 9 of the particulars of claim the claimant had stated that the position of gate 2 was identified on the plan attached at annex H (namely within the boundary between Lychcroft and Wells Farm). However, the gate which was marked as gate 2 on annex F (ii) was shown at right angles across the drive leading down to the sheds on Wells Farm, rather than within the boundary between Wells Farm and Lychcroft. In the course of his re-examination, Ian Johnson stated that this was indeed gate 2, because it closed in front of the furthermost hurdle shown in annex F (ii). I accept his evidence on this issue. The position of gate 2 as marked in annex F (ii) is thus somewhat misleading. I therefore find that by 2009 the first defendant had installed the large seven-bar galvanised iron gate, which was hung from the large brown post, and which when closed lay across the entrance to Lychcroft's field generally depicted in annex F (ii). I shall refer to this gate as "gate 2". It may well be that the first defendant used to place gate 2 across the drive so as to guide sheep into Lychcroft's field, rather than allow them to go down the drive towards the sheds on Wells Farm.(3) Between November 2012 and January 2013, as regards the fence to the west of the large brown post, the first defendant removed the hurdles and small pair of seven-bar galvanised iron gates, and erected in their place firstly a new large seven-bar galvanised iron gate and secondly to the west of that gate a four-bar wooden fence ("the new four-bar wooden fence") as shown in the photographs at exhibits J (i) and (ii) to the particulars of claim. The claimant described the photograph (dated January 2013) at annex K to the particulars of claim as showing "new double gates inserted by Mr Johnson". In my judgement between November 2012 and January 2013 the first defendant only installed one new gate, namely the left-hand seven-bar galvanised iron gate shown in annex K; the right hand seven-bar galvanised iron gate shown in that photograph is gate 2, which had already been installed by that time: see above. I am fortified in coming to that conclusion because (a) the two galvanised iron gates shown in annex K are not a pair; the left-hand gate is significantly wider than the right-hand gate; and (b) the right-hand gate has diagonal cross members from top right to bottom left, which are also to be seen in the large galvanised iron gate shown in annex F (ii), which is gate 2.(4) The position of gate 2, the new seven-bar galvanised iron gate, and the new four-bar wooden fence, whether taken collectively or individually, is different from that of the original fence, being further to the south i.e. more towards Wells Farm than was the original fence.[11]The claimant's case is that the boundary is shown by the line of the original fence, as depicted in the aerial photograph dated 1 January 1999 at annex E (iii) and (iv) to the particulars of claim, and on the ordnance survey master map dated 10 September 2013 at annex E (i) and (ii). The defendant's case is that, as regards the greater length of the original fence running along the drive, the boundary was in fact on the northern edge of the made up carriageway of the drive, thus not including the grass verge to the north of the made up carriageway shown for example in annex J (ii) to the particulars of claim: see paragraph 17 of the defence (A/70) and paragraph 15 of the first defendant's witness statement (B/321). As regards the lesser length of the original fence, the defendant's case is that the boundary is where the new four-part wooden fence has been erected.[12]I prefer the claimant's case to the defendants on this issue.[13]As regards the greater length of the original fence, that is for the following reasons:(1) The consequence of the defendant's case is that, as a strict matter of legal analysis, there would have been insufficient space for commercial vehicles of any substance or width to pass down the drive to the sheds at Wells Farm at a time when Bill and Molly Williams were running a poultry business of up to 50,000 birds from those sheds: see paragraph 3 of the particulars of claim. They may have been able to do so by some form of informal license, but they would have had no legal right to do so. Such a consequence makes it inherently improbable that Bill Williams would have made the agreement for which the first defendant contends.(2) In fact, the three-bar wooden fence erected from the eastern end of the drive up to the large brown post has remained in place without protest from either party for some 25 years. I infer from that fact, and thus find, that Bill Williams and the first defendant agreed in 1990 that the original fence erected on the north side of the drive including its grass verge marked the boundary between the two properties.(3) I am fortified in coming to that conclusion by the conduct of the first defendant and his son Ian Johnson on 13 May 2013, when they drew the yellow line west from the large brown post towards the shared access-way, to illustrate where they thought the line of the boundary was to the west of the large brown post: see annex N (iii) the particulars of claim. It is to be noted that they drew the yellow line from the large brown post, which is at the end of the original fence. I infer from that fact that the first defendant acknowledged that the boundary fence from the eastern end of the drive up to the large brown post was along the three-bar wooden fence, and not at the northern edge of the made up carriageway of the drive.[14]As regards the lesser length of the original fence, that is for the following reasons:(1) The aerial photograph dated 1 January 1999 at annex E (iii) & (iv) clearly shows a line, which I find to be the original fence, comprising at its eastern end gate 2, running at an angle towards Lychcroft from the point which I find to be the large brown post. This is consistent with the arrangement shown in the photograph dated 2009 at annex F (ii).(2) That aerial photograph also shows the original fence then continued west in a straight line to the corner or curved edge of the entrance drive to Lychcroft.(3) Between 1990 and December 1995 (when Bill Williams died) I find that neither he nor the first defendant said or did anything to suggest or indicate that the line of the boundary to the west of the large brown post was other than as shown in these two aerial photographs.[15]As regards both the greater and lesser lengths of the original fence, I reject the first defendant's case that he set the fence well within Lychcroft land so as to enable him to maintain it on both sides from Lychcroft land. I accept Mr erduyn's submission that "... the obligation to maintain a boundary fence will carry with it implicit consent to allow access for maintenance or, more accurately failure to give access may suspend the maintenance obligation": see paragraph 44 of his closing written submissions.[16]As regards relief, I shall therefore make a declaration that the boundary is as depicted on both of plans number 3 prepared by Mr Barker (E/919-920). It will be necessary for the defendants to remove so much of gate 2, the new seven-bar galvanised iron gate, and the new four-bar wooden fence as is south of the line depicted in Mr Barker's plan number 3, and I shall make an order to that effect. I will consider below whether any injunctive relief is to be granted. E: The defendants asserted right of way over extended blue land[17]The first defendant claims a right of way between gate 1, which is between the shared access-way and the beginning of the drive down to the sheds on Wells Farm as marked on annex F (ii) to the particulars of claim, and gate 2. He does so on two grounds:(1) pursuant to the provisions of paragraph 1 of schedule 1 to the 1990 conveyance: see paragraph 103 of the defence and counterclaim; and(2) as of right established over a period of 20 years, and without interruption: see paragraph 104 of the defence and counterclaim.[18]In the course of the trial the first defendant advanced a variant to the first ground, namely that in about 1990 Bill Williams had agreed with the first defendant that the blue land should be extended by some unspecified or unrecorded amount towards gate 2, so as in some way to facilitate ease of access by commercial vehicles when entering or exiting from the drive down to the sheds on Wells Farm.[19]I reject the first ground. Paragraph 1 of schedule 1 to the 1990 conveyance gave the owners of Wells Farm a right to pass over the shared access-way. It did not give the owners of Lychcroft any rights: they already owned the shared access-way i.e. the blue land. This ground is therefore misconceived.[20]I also reject the variant to the first ground, as even if Bill Williams had come to such an accommodation, which I do not find that he did, it would nevertheless not have afforded the owners of Lychcroft any legal rights; it would only have afforded the owners of Wells Farm additional rights. Further there is no contemporaneous written document recording the fact that Bill Williams and the first defendant had reached such an accommodation. I infer from the absence of such a document that they had not done so.[21]As regards the second ground, paragraph 9 of the particulars of claim states:
"It was part of the agreement between (Bill Williams and the first defendant) at the time the fencing was erected pursuant to clause 3 (i) of the 1990 conveyance (that the first defendant) was permitted to install a gate within the boundary fence between points A and B on the plan attached to that conveyance. The position of that gate is identified on the plan ... attached hereto at annex H (and marked) as 'gate 2'. The purpose of installing gate 2 was to allow for the moving of livestock on to and from Lychcroft (in connection with the first defendant's intention to keep a small flock of sheep as a hobby). To enable access through gate 2 meant that the first defendant was also given permission to use a short section of the drive between gate 2 and gate 1 ..."
The points marked A-B-C-D-E on annex H are either the same as those marked on the plan attached to the 1990 conveyance at annex D, or are so nearly so as makes no material difference.[22]The first sentence of paragraph 19 of the defence states:
"Paragraph 9 is agreed except that it is denied that the first defendant's intention was to keep a small flock of sheep only as a hobby."
Consistent with that statement, in paragraph 16 of his witness statement the first defendant stated (B/322):
"In 1990 Bill agreed that I could put a gate in the stock proof fence so that I could get to my fields via the track. Part of the stock proof fence was constructed of temporary hurdles."
[23]Based on the material set out immediately above, I find as a fact that in about 1990 Bill Williams gave the first defendant permission to install and use gate 2 in the boundary, and permission to move sheep from gate 1 down the short stretch of the drive to gate 2, and then through gate 2 into the Lychcroft field. It follows, and I find, that at all material times the first defendant's use of gate 2 was permissive, and not as of right. I therefore accept Mr erduyn's submission in paragraph 62 of his closing written submissions.[24]I also reject the first defendant's assertion in paragraph 37 of the defence that "Gate 1 and gate 2 have been since their construction and are the first defendant's only way of access to Lychcroft", which I construe to mean a reference to access in the manner of moving sheep onto the Lychcroft field. Since the claimant locked gate 1, the defendant has removed part of the evergreen hedge shown in annex J (ii), and installed in its place a hurdle and another seven- bar galvanised iron fence as shown in photograph F1, either of which affords the first defendant access to the Lychcroft field.[25]I therefore reject the second ground relied on to establish a right of way through gate 1 down the short stretch of the drive to and through gate 2.

(i) of the 1990 conveyance: buildings

[26]Paragraph 21 of the particulars of claim states:
"In around 1999 the first defendant constructed a shed on Lychcroft measuring approximately 7 metres by 3.5 metres. Thereafter he began to keep chickens as part of a commercial enterprise having previously kept them as a hobby."
Paragraph 23 of the particulars of claim states:
"By 2005 a further poultry shed had been constructed on Lychcroft measuring approximately 8 metres by 11 metres and the original shed had been extended to measure approximately 13 metres by 19 metres. The claimant did not object to the first defendant's use of the sheds as part of a commercial poultry enterprises as he was unaware of the restrictive covenant at that time which prohibitive the owners of Lychcroft from carrying on any trade or business on Lychcroft."
[27]Paragraph 8 of the prayer, in its original form, stated that the claimant claims:
"A prohibitory injunction preventing the defendants from engaging in or permitting any activity taking place on Lychcroft in contravention of clause 2 (ii) of the 1990 conveyance."
In paragraph 85 of his written closing submissions Mr erduyn stated that the claimant "is not seeking the removal of buildings that have now been in situ for years (unless that is the only relief which the court will countenance)." However he sought and obtained permission to amend paragraph 8 of the prayer by deleting "(ii)", so as to be able to claim an injunction in connection with any future breach of clause 2 (i). Paragraph 9 of the prayer states that the claimant claims:
"Damages against the defendants, in an amount to be assessed by the court, in respect of the breaches of covenant 2 in 1990 conveyance."
[28]Paragraph 38 of the defence states:
"As to paragraph 21, it is admitted that the first defendant constructed a chicken shed approximately as alleged, but this new modern chicken shed replaced a previously existing old chicken shed of approximately the same size. It is denied that the first defendant is liable for any wrongdoing in this regard."
At trial Mr Cannings sought and obtained permission to amend that paragraph by deleting the words "of approximately the same size" at the end of the first sentence. Paragraph 41 of the defence states:
"The defendants do not understand the allegations raised in paragraph 23 and struggle to plead to the same. It is denied that 'a further poultry shed' was constructed either in 2005 or at all. There are only two permanent buildings on Lychcroft: the Old Piggery and one chicken shed constructed in 1999 as detailed above. (A temporary chicken shed was briefly erected adjacent to the Old Piggery in approximately 1995/1996 but was removed a long time ago.) All buildings that were constructed were done so with the full approval of the claimant's father. As to the knowledge or otherwise of the claimant as set out in the second sentence of paragraph 23, the defendant cannot plead to the same."
[29]In paragraph 10 of his written closing submissions Mr erduyn submitted that "ery recently disclosed accounts further evidence the claimant's case, as they record the erection of a new building paid for in March 2005 (as the claimant had pleaded), but also barn foundations and concrete in December 2003 and a shed in April 2010 ...". However no reference to barn foundations and concrete in December 2003, and a shed in April 2010 is made in the particulars of claim, and accordingly I shall confine my consideration of this issue to the matters stated in the particulars of claim.[30]In his witness statement the first defendant stated:
"23. On the eastern side of where the lake now is was a dilapidated building at the time of my purchase of Lychcroft. In about 1994 I revamped the building, and after that used it as a chicken shed. I have never kept chickens for commercial purposes, though I do sell eggs from time to time. DEFRA requires a license for egg production involving more than 250 hens, and I have always had fewer than that. 24. There is an old brick building called the Old Piggery adjacent to the main road on the northern side of Lychcroft . I constructed a temporary wooden chicken shed adjacent to the Old Piggery in about 1995 or 1996, but I removed it some years ago. The Old Piggery is a redundant building and has stood empty for many years."
[31]As regards his relationship with Bill and Molly Williams, in his witness statement the first defendant stated as follows:
"7. I always enjoyed a cordial relationship with Bill and Molly Williams, and after Bill died in about 1994 Molly specifically asked me to carry on looking after the Wells Farm land to keep the grassland, hedges and ditches in good order, as I had been doing since 1988. 8. I have always tried to be a good neighbour at all times to Bill and Molly Williams, and with their son Richard and his wife when they took over ... 30. I had a very good relationship with Molly Williams, and I do not recall ever having a single dispute with her."
[32]In the course of his cross-examination, albeit in the context of his discussions with Bill Williams about his plans for creating the lake, the first defendant described the nature of his relationship with Bill Williams as follows (DG/93):
"We discussed everything. We were very good friends and neighbours."
[33]In contrast, in paragraph 8 of his witness statement the claimant stated:
"Dennis proved to be a bad neighbour. Disputes developed very quickly because of the following matters for which no permission had been requested or granted and would not have been granted had permission been sought. My parents repeatedly asked him not to act in these ways, but all those requests were ignored."
Nine examples of the first defendant's conduct or behaviour for which the claimant considered his parents would not have given permission are then set out. It is notable that use of, or extension to, the chicken shed to the east of the lake, is not one of them. In paragraph 9 of his witness statement the claimant stated:
"As a result of Dennis's behaviour my parents regularly fell out with him in a big way. Whenever they complained to him about his behaviour he became extremely angry and abusive. Sometimes in order to persuade him to change his ways they locked one or more of Gates 1, 2, 3, 4 and 5 as an expression of their anger. On several occasions they subsequently found those locks/chains had been broken; presumably by or on behalf of Dennis."
[34]Having had the opportunity of receiving evidence from both the first defendant and the claimant, and thus observing their general demeanour over an extended period of time, I am able to make the following findings of fact about the relationship between Bill and Molly Williams and the first defendant. I find that Bill Williams and the first defendant were indeed good friends, and that they regularly discussed matters relating to both Lychcroft and Wells Farm until Bill Williams died in December 1995. Thereafter I find that the first defendant continued to discuss matters relating to both Lychcroft and Wells Farm with Molly Williams until she died in January 2001. However, there were a number of respects in which the first defendant's behaviour irritated and frustrated Bill and Molly Williams in the sense that it made them cross, though I do not find that they became angry; those occasions resulted in Bill and/or Molly Williams locking gates from time to time.[35]This issue thus relates to the chicken shed or sheds to the east of the lake. There are a number of photographs in the trial bundles which provide some assistance, and which enable me to make the following findings of fact:(1) The original shed is shown in the aerial photograph with an imagery date of 1 January 1999 at page C1/485. It is situated between the eastern side of the lake and the two larger trees which are further away to the east of the lake.(2) Sometime later in 1999, the first defendant extended that original shed: see the white L-shaped structure in the aerial photograph with an imagery date of 21 October 2007 at page C1/494.(3) At or about the same time as extending the original shed, so in about 1999 or shortly thereafter, the first defendant erected a substantial new shed with a double pitched roof between the two larger trees to the east of the lake: see the aerial photograph with an imagery date of 1 January 2005 at page C1/491 (2); this building is the left hand building shown in the photograph at page C1/460. I shall refer to this building as "the first new shed".(4) Sometime later, i.e. between 2000 and 2005 the first defendant erected a further substantial new shed immediately adjacent and to the east of the shed described at (3) above: this has a single pitch roof with what appear to be windows or some form of panes within the roof: see again the photograph at page C1/491 (2); this building is the right hand building shown in the photograph at page C1/460. I shall refer to this building as "the second new shed", and to both of them collectively as "the two new sheds".[36]It follows from those findings that the details set out in paragraphs 21 and 23 of the particulars of claim are somewhat incorrect (noting the inconsistency in dimension between that asserted in paragraph 21 of the particulars of claim (7 by 3.5 metres) and that asserted in paragraph 17 of the claimant's witness statement (7 by 13 metres), though the general point that in the period 1999 to 2005 the first defendant erected two new sheds is established. It also follows that the first defendant was incorrect in his assertion in paragraph 41 of the defence that "All buildings that were constructed were done so with the full approval of the claimant's father", because the two new sheds were erected after 1 January 1999, and thus after Bill Williams died.[37]As regards the two new sheds, I make the further findings of fact as follows:(1) That from its erection in about 1999, to the date of her death in January 2001, Molly Williams knew about the erection of the first new shed, made no protest about its erection, and took no steps to enforce the restrictive covenant in relation to it.(2) That from its erection sometime between 2000 and 2005 until at least service of these proceedings (which were issued in September 2012, albeit the particulars of claim are dated some 12 months later), the claimant knew about the erection of the second new shed, make no protest about its erection, and took no steps to enforce the restrictive covenant in relation to it and/or the first new shed.(3) At no time did the first defendant seek written consent from Molly Williams and/or the claimant for the erection of either of the two new sheds.[38]In paragraph 74 of his closing written submissions Mr erduyn submitted that "The defendants admit only to replacing building and denied that this constitutes building at all". This appears to derive from paragraph 38 of the defence. However, between paragraphs 57 and 67 of his written opening submissions, where he dealt with the restrictive covenants, Mr Cannings did not in fact advance or develop any such submission; nor did he do so in his closing written submissions. For the avoidance of doubt, in my judgement it matters not if, in order to erect either of the two new sheds, the first defendant replaced or removed a pre-existing structure; the first defendant still erected a new building or buildings on Lychcroft land.[39]The defendants also assert an estoppel. Paragraph 96 of the defence states:
" ... the defendants aver that if (which is denied) there has been any breach of covenant or any other wrongdoing by any of the defendants, the claimant is estopped from raising any claim in relation to the same because he and his predecessors in title, his parents, ... have permitted such conduct and/or have acquiesced in any breaches found since 1990 until 2013."
Paragraph 69 of the reply states:
" ... it is denied that the claimant is estopped from relying upon the covenants contained in the 1990 conveyance. The conduct complained of was not permitted by the claimant or his parents. The only way in which the defendants can avoid the operation of the covenants is if they have them modified or discharged. No such application has been made."
[40]In paragraph 25 of his written opening submissions Mr Cannings submitted:
"A number of the factual disputes in this matter relate to acts which the first defendant explains were permitted or acquiesced to by either the claimant or his predecessors in title, his parents. In that regard the defendants rely upon the law of estoppel and submit that the claimant cannot seek to take action in relation to acts which were previously permitted."
He developed that point in paragraph 27 of his written opening submissions:
"A number of the claimant's complaints against the defendants relate to historic acts (alleged flooding, alleged breach of covenants): ... it is submitted that the claimant is estopped from raising these issues now to the extent that the defendants' conduct has been previously permitted or acquiesced to by himself or his parents. It is submitted that the said permission or acquiescence amounted to a representation (which could be a representation by conduct and/or silence) that either the claimant or his parents would not seek to enforce, for example, the provisions of the restrictive covenant."
[41]Mr erduyn dealt with this issue in paragraphs 103 - 108 of his closing written submissions. In summary he submitted:(1) The claimant "did not give any "clear and unequivocal promise" not to enforce the covenants: see paragraph 105. However, this does not relate to any promise that might have been given by either of his parents.(2) "... fatally, the defendants have not pleaded reliance on any representation, which is a key requirement": see paragraph 106, citing paragraph 12 -- 1827 of Snell's Equity .(3) "In this case 'mere silence and inaction ... cannot found a promissory estoppel' … the inaction of the claimant to enforce the covenants in is plainly (at best) equivocal in that it has an obvious innocent explanation: ignorance. See paragraph 105.(4) " … a restrictive covenant is 'a hidden treasure which may be discovered in the hour of need': see paragraph 105, citing paragraph 32-067 of Megarry & Wade: The modern law of Real Property .[42]I accept the second third and fourth of Mr erduyn's submissions summarised above, and accordingly do not find that the claimant is estopped from now relying on the terms of the covenants, both as regards the restraint on buildings in clause 2 (i) and also generally as regards the restrictive covenants in the 1990 conveyance.[43]In all those circumstances, I find that the first defendant was in breach of covenant in erecting the two new sheds. However other factors come into play as regards considering what, if any, is the appropriate relief to be granted as a result.[44]In paragraph 85 of his closing written submissions, after the submission set out above, Mr erduyn went on to submit that "It is appropriate therefore to fortify the terms of covenant (i) with an injunction requiring future consent in writing to any building (including, for the avoidance of doubt, the erection of replacement buildings) ...", and then went on to refer to the claim for damages. I shall first consider the claim for an injunction. As regards buildings already erected on Lychcroft, Mr erduyn has submitted that the claimant is not seeking their removal, so an injunction is not called for in that regard. In light of the findings I have made in paragraph 37 above, that was in my judgement a sensible concession. Further, the claimant does not allege in the particulars of claim that the first defendant threatens to erect any new building on Lychcroft in the future; and the claimant did not lead any evidence to that effect during the course of the trial. Therefore, in circumstances where (a) no injunction was sought in respect of past building at times when Molly Williams knew of the erection of the first new shed, and the claimant knew of the erection of the second new shed; and (b) the claimant has not asserted or proved that the first defendant threatens to erect any new buildings on Lychcroft land in the future, it is not 'just and convenient' to grant any injunction in relation to the prospect or possibility of the first defendant erecting any new building on Lychcroft land in the future. That is not to say that the first defendant has any right to erect any such new building on Lychcroft land in the future without first obtaining the claimant's written consent. To the contrary, following the handing down at this judgement, the defendants generally and the first defendant in particular should be in no doubt that were any of them to erect any new building on Lychcroft and in the future, without first obtaining the claimant's written consent, such contact would render them liable to further proceedings including a claim for an interim injunction.[45]I now turn to consider the claim for damages. Given the findings made in paragraphs 34 and 37 above, I have concluded that the first defendant made an implied request for permission to erect the two new sheds in a manner explained in Chitty on Contract at paragraph 3-060, and thus Molly Williams and/or the claimant have forborne from enforcing the restrictive covenant in clause 2 (i). In my judgement there is broad equity in coming to such a conclusion, as it is consistent with the claimant not seeking any injunction in respect of past erection of new buildings on Lychcroft land. In those circumstances the claimant is only entitled to recover nominal damages, which I assess as £5.[46]If I am wrong in coming to such a conclusion, and should instead have found that the claimant is entitled to recover damages for past breaches of the restrictive covenant in clause 2 (i), I would have assessed damages as follows. In paragraph 4 of their joint statement, Mr Cluley MRICS and Mr Webb FRICS stated (E/1128):
"We agreed that the capital sum that would be charged between a willing buyer and a willing seller for the grant of a licence to perform the activities prohibited by the restrictive covenants on Lychcroft total £32,500 ... which can be broken down as £15,000 ... for the licensee to be allowed to farm, and £17,500 ... in respect of the remainder of the restrictive covenants."
The figure of £17,500 thus encompasses both the restrictive covenant as regards new building in clause 2 (i), and the restrictive covenant as regards the prohibition of nuisance etc in clause 2 (iii). Without further information as to the apportionment between the two, I would simply apportion half the figure of £17,500 to each i.e. £8,750 in respect of the restrictive covenant in clause 2 (i). As regards damages for any future breach of clause 2 (i): given the claimant does not seek to removal of the two new sheds, in my judgement he is not entitled to recover damages in respect of any future breach of clause 2 (i), to which he is in effect now acquiescing by not requiring the removal of the two new sheds.[47]Nor, in my judgement, is the claimant entitled to recover a further head of equitable damages based on the principle established in Wrotham Park . Such damages were not specifically pleaded in the particulars of claim, and the case was not opened on the basis that the claimant was entitled to recover such a further head of equitable damages. Such damages are indeed equitable damages, and in the circumstances which obtain, in particular those set out in paragraphs 34 and 37 above, it would not be equitable to award such a further head of damages in this case. G: The restrictive covenant in clause 2 (ii) ) of the 1990 conveyance: user[48]As set out above, clause 2 (ii) contains a restrictive covenant that:
"no trade or business shall be carried on upon the property or any part thereof nor shall the same be used otherwise than as a private dwellinghouse"
It is to be noted that this covenant does not contain the saving of obtaining previous written consent from the vendors as is provided for in clause 2 (i).[49]However, in paragraphs 7 and 8 of the defence, the defendants state:
"7. … this clause must be read in relation to the circumstances existing at the time of the conveyance and the intention of the parties to the 1990 conveyance. Notably the first defendant was (and still is) a farmer and Lychcroft was (and still is) a farm. The farm house at Lychcroft acquired its planning consent in 1977 subject to an agriculture condition (namely that only a farmer could occupy the farm house). Furthermore, Lychcroft has an agricultural holding number (17-15-49) which has always been attached to the farm and is registered with ...DEFRA. The existence of an agricultural holding number is evidence of Lychcroft's status as a farm. 8. Further ... the said conveyance was signed on the understanding that the claimant's parents (his predecessors in title) did not want 'industry' on the property, including caravans, solar panels or any business other than farming occurring on the same. Before Lychcroft was sold ... the first defendant had for many years grazed sheep on the property."
Paragraph 11 of the defence also stated:
"… The defendants aver that the requirement of a stockproof fence is consistent with the use of Lychcroft for farming purposes and would be inconsistent with a restriction preventing the same. The stockproof fence is required to keep livestock in certain areas. If there were to be no livestock on either property, there would be no need for the said fence. The first defendant from around 1988 until this dispute kept livestock on both Lychcroft and Wells Farm ..."
See also paragraphs 59 - 61 of Mr Canning's closing written submissions much to the same effect.[50]Summarising the defendants' position, they identify three reasons why they claim a declaration that clause 2(ii) should be read so that, after the words "no trade or business", the words "other than farming or associated acts" should be inserted:(1) The fact that planning permission for the erection of Lychcroft was made subject to an agricultural tie, together with the fact that Lychcroft has an agricultural holding number.(2) The fact that on purchase, the purchasers of Lychcroft were required to erect a stock-proof fence.(3) The fact that before he purchased the property, the first defendant had used the field around Lychcroft to graze sheep.[51]Mr erduyn dealt with those points in paragraphs 90 and 91 of his closing written submissions, and submitted further in paragraph 92:
"It follows that there is no reason to impute an intention to them contrary to the clear words of the covenant. The attempt to rewrite a clear covenant by construction is impermissible Arnold v Britton … Furthermore, in matters of land registration, the factual matrix should be treated with circumspection as an aid to construction, as successors in title are entitled to understand what they get from the content of the register, and will not necessarily be privy to the circumstances cited against them; Lewison: Interpretation of Contracts paragraph 3-18."
[52]I have come to the following conclusions:(1) The fact of the agricultural tie and the agricultural holding number is irrelevant to the operation or effect of this restrictive covenant not to carry on a trade or business on Lychcroft, or only to use the property as a private dwelling-house. The agricultural tie may restrict the category of persons entitled to reside there, but it does not diminish the operation or effect of the restrictive covenant.(2) The fact that the purchaser was required to erect a stockproof fence is consistent with permission to keep a small or modest number of sheep on Lychcroft. It does not lead to or require a wholesale rewriting of the restrictive covenant in the manner or to the degree the defendants contend.(3) Even if the first defendant did graze sheep in the field around Lychcroft before he purchased the property, that fact of itself would not lead to or require a wholesale rewriting of the restrictive covenant in the manner or to the degree the defendants contend.[53]As regards carrying on a trade or business: it is apparent that the first defendant prepared accounts in connection with his farming activities at Lychcroft. In my judgement the preparation of such accounts, which I infer and thus find were for the purposes of presentation to the Inland Revenue, is consistent with the carrying on of a trade or business, rather than carrying on a hobby or pastime.[54]In my judgement the words of clause 2 (ii) of the 1990 conveyance are clear, and do not require interpretation. It follows that the first defendant has long been mistaken in his understanding of what activities are permitted at Lychcroft under the terms of clause 2 (ii).[55]In the particulars of claim the claimant complains of the following acts by the first defendant:(1) With effect from around 2007, letting "part of Lychcroft to a market gardener who has farmed that land since that time": see paragraphs 24 and 48 of the particulars of claim;(2) "keeping of poultry as part of a commercial enterprise": see paragraph 48 of the particulars of claim; and(3) "... use of Lychcroft for commercial tipping": see also paragraph 48 of the particulars of claim.[56]The evidence about the first defendant's use of Lychcroft can be summarised as follows: (1) As regards market gardening, in paragraph 25 of his witness statement the first defendant stated:
"I have never let out any part of Lychcroft land. I do however have an arrangement with Andrew Green, a local market gardener, in relation to part of Lychcroft land, which I would describe as 'share farming'. He cultivates courgettes, kidney beans etc. This enterprise is a source of employment for about 50 seasonal workers."
The aerial photograph with an imagery date of 1 January 1999 (C1/45) gives a general indication of the nature and extent of such market gardening carried on at that time. The income which the first defendant received from market gardening, by reference to the entry "peas and beans" in the first defendant's trading and profit and loss accounts was - in the years to 5 April - as follows: nothing in 2007 (C2/765); £1,320 in 2008 (C2/765); £1,330 in 2009 (C2/784); £1,320 in 2010 (C2/792); nothing in 2011 (C2/801); £9,900 in 2012 (C2/811); and £7,000 in 2013 (C2/822). (2) As regards keeping sheep (though not in fact complained of in this context in the particulars of claim), in paragraph 19 of the defence the first defendant stated:
" ... the first defendant did before, and has continued to do so after, the signing of the 1990 conveyance keep sheep for small scale profit purposes ... At the height of his activities the first defendant found about 600 sheep and he currently farms about 60 sheep ..."
In paragraph 18 of his witness statement (made on 23 August 2014) he stated:
" ... it has been suggested that I keep sheep as a 'hobby'. That is not true. I have been a professional farmer all my working life. In my opinion I continue to be a working farmer, albeit at a reduced level of activity. For instance, in 2013 I sold 150 fat sheep mainly at Hereford market. I have 11 sheep on the land at present, but I expect to be buying a significant number of sheep for fattening within the next few weeks. I expect to have about 140 sheep on the land by about September, and will keep them to April when they will go to market."
The income which the first defendant received from keeping sheep was - in the years to 5 April - as follows: £5,875 in 2007 (C2/765); £9,971 in 2008 (C2/765); £1,978 in 2009 (C2/784); £11,170 in 2010 (C2/792); £10,027 in 2011 (C2/801); £19,648 in 2012 (C2/811); and £15,021 in 2013 (C2/822). (3) As regards keeping poultry: in paragraph 23 of his witness statement the first defendant stated:
"… I have never kept chickens for commercial purposes, though I do sell eggs from time to time. DEFRA require a licence for a production involving more than 250 hens, and I have always had fewer than that."
The income which the first defendant received from poultry was however nominal: £103 in y/e 5 April 2007; nothing in y/e 5 April 2008; £60 in y/e 5 April 2009; nothing in y/e 5 April 2010; and thereafter poultry is not included in the income column of the first defendant's accounts. The income which the first defendant received from selling eggs was, until 5 April 2011, rather more substantial: £1,817 in y/e 5 April 2007; £672 in y/e 5 April 2008; £1,607 in y/e 5 April 2009; £123 in y/e 5 April 2010; £998 in y/e 5 April 2011; £17 in y/e 5 April 2012; and then nothing in y/e 5 April 2013. (4) As regards commercial tipping: in paragraph 29 of his witness statement the first defendant stated:
" ... it has been suggested that the landscaping of the lake surround was using imported contaminated soil. The soil I brought onto site was fully licensed and laboratory tested soil. Most was good quality topsoil with a small amount of coarser material used as subsoil stabilising medium."
In his oral evidence at trial the first defendant also stated that he received a further lorry load of material which he rejected on grounds of quality.[57]Based on that evidence I find that the first defendant has, at least since 6 April 2006, been using Lychcroft to carry out a trade or business as a market gardener, and to farm sheep as "a professional farmer". However I do not find that his level of keeping poultry and/or selling eggs is now enough to amount to the carrying on of a trade or business, notwithstanding the inclusion of the modest sums of £103 and £60 in respect of poultry in the income column in his accounts in the years 2007 - 2009, and the rather more substantial figures in respect of selling eggs in the years 2007 - 2011. In effect I find that this activity has tailed off, and is now little or none. Nor do I find that he was engaged in commercial tipping as part of a trade or business; it is to be noted that no receipt of income in that regard is recorded in any of his accounts.[58]I make no finding that the first defendant was in breach of covenant in keeping sheep at Lychcroft, as that is not a matter alleged in the particulars of claim. However, in the circumstances set out above, I do find that the first defendant was in breach of covenant in letting part of Lychcroft to a market gardener. Other factors then come into play as regards considering what, if any, is the appropriate relief to be granted as a result[59]The findings of fact about the relationship between Bill and Molly Williams on the one hand and the first defendant on the other hand made in paragraph 34 above are also relevant as part of the background to consideration of this head of the claim.[60]As regards letting part of Lychcroft to a market gardener, I make the further findings of fact as follows:(1) That from about 2006 the claimant knew about the first defendant letting part of Lychcroft to a market gardener, but made no protest about that, and took no steps to enforce the restrictive covenant in relation to it.(2) At no time from about 2006 did the first defendant seek any consent from the claimant to let part of Lychcroft to a market gardener.[61]I come to like conclusion on this head of the claim as regards estoppel as I have as regards the restrictive covenant relating to the erection of buildings, namely that the first defendant does not establish an estoppel as alleged.[62]In paragraph 99 of his closing written submissions Mr erduyn stated that the claimant "seeks an injunction to prevent further breach of covenant ... and damages". The position as regards user is rather more nuanced than it is as regards the erection of buildings. While again(a) no injunction was sought in respect of past subletting, notwithstanding that the claimant knew of such subletting at all material times since 2006, here(b) the claimant has established that the first defendant intends to continue subletting part of Lychcroft for the purposes of market gardening.[63]The first issue to be considered in such circumstances is whether damages provide an appropriate or proper remedy: see Snell's Equity (33rd edition 2015) at paragraph 18-033. Here damages can be assessed by reference to what a willing purchaser would have paid a willing seller for a licence to farm: the joint opinion of the surveyors is that figure is £15,000. It is then necessary to consider whether the circumstances are such that it is equitable to grant an injunction: see Snell's Equity at paragraph 18-008. Here the circumstances include(a) the fact as I find that damages would provide an appropriate or proper remedy;(b) the fact that there has been a long period when the first defendant has sublet part of Lychcroft for the purposes of market gardening without protest from the claimant; and(c) the fact as I find that the nature or quality of the market gardening carried out on part of Lychcroft does not consist of or amount to a nuisance: see Snell's Equity at paragraph 18-034.[64]Therefore, even though "prohibitory injunctions are frequently obtained for the purpose of enforcing restrictive covenants" (see Snell's Equity at paragraph 18-015), in the circumstances of this case it is appropriate to exercise an equitable discretion to refuse relief by way of injunction, and instead award damages for this breach of covenant, which I do in the sum of £15,000. I am fortified in coming to such a conclusion by the fact that such an award would have the effect of putting the parties into the position they would have been had the first defendant initially sought consent from the claimant for such subletting.[65]The effect of prior knowledge is materially different in the context of this head of claim (for breach of covenant as regards user) from its effect in the context of the head of claim for breach of covenant as regards the erection of buildings. Here, it has been necessary to consider whether an award of damages would provide an appropriate or proper remedy as an alternative to an injunction. Having decided that an award of damages would provide such an appropriate or proper remedy, it would not then be relevant or appropriate to consider whether prior knowledge amounted to a waiver or forbearance. In contrast, in the context of the head of claim for breach of covenant as regards the erection of buildings, the claimant did not claim an injunction, and thus the claim for damages fell to be considered independently of any claim for an injunction. In those circumstances it was relevant or appropriate to consider whether prior knowledge amounted to a waiver or forbearance.[66]Consistent with my finding in paragraph 47 above, the claimant is not entitled to recover a further head of equitable damages based on the principle established in Wrotham Park . If such a further head of damages was awarded, that would bring about the position whereby the first defendant, in addition to paying the equivalent of a licence to farm on part of Lychcroft, would also have been farming for the sole financial benefit of the claimant from 2006. In my judgement that would be an in equitable result. H: Land drainage issues[67]General layout The general layout is shown in appendix H to the particulars of claim (A/51), Mr Haiste's drainage plan at appendix 3 to his report dated 26 May 2015 (D/876), and in the "laminate sheet" provided by the claimant's solicitors in the course of trial. Those documents illustrate the following:(1) Drain 1, which runs down Tanhouse Lane from "Point F" [1] to the entrance driveway to both Lychcroft and Wells Farm, which is in general terms "the blue land" shown in the plan annexed to the conveyance dated 21 May 1990 (A/38). Although it is an open ditch in the northern portion of its length, it is closed (i.e. within a pipe) for much of its southern portion. There is a manhole in that southern portion.(2) Drain 2, which is an underground pipe passing across and beneath the entrance driveway to both Lychcroft and Wells Farm. It connects Drain 1 to Drain 3.(3) Drain 3, which is an open ditch running from the southern end of Drain 2 where it emerges on Wells Farm land, and then proceeds in an east south-east direction passing between sheds 1 & 2 (shed 1 having been substantially demolished, save for some brickwork at ground level), and then to the south of shed 3, across to Point Z shown on Mr Haiste's drainage plan. It is then culverted (by an underground pipe) to enable water to pass across the south eastern leg of Lychcroft land to other property. At the mouth of that pipe on Lychcroft land, is a grille.(4) The inlet pipe from Point F to the lake is shown in blue on Annex H, and as the broken red line on Mr Haiste's drainage plan.(5) Drain 4 is the outlet pipe from the lake, shown simply on Annex H as a straight line running essentially south from the lake down to drain 3. In his drainage plan Mr Haiste identified manholes X & Y along Drain 4. Mr Moran then identified manhole Z, which is between manholes X & Y, and is shown on the laminate sheet.[68]It is to be noted that the position of Point F was incorrectly shown on Annex H. Point F is a "catchpit", and was constructed as part of the reconfiguration of the junction of Tanhouse Lane with the main A4103 road which passes along the northern boundary of Lychcroft. It is in fact located to the south of a gate into Lychcroft land towards the top of Tanhouse Lane, and its position is more accurately shown on the laminate sheet, which is significantly further south, i.e. down Tanhouse Lane, then as shown on Annex H.[69]History The essential history is as follows.[70]In paragraph 3.3 of this witness statement Mr Brookes stated (B/292):
"Drain 1 was regularly maintained by the county council, with a little help from me if they were slow in doing their work ..."
I accept that evidence, and find that Drain 1 has been in existence for a considerable period of time, well before the conveyance dated 21 May 1990 was made.[71]I also find that Drain 2 was constructed by Mr Brookes, who was Bill and Molly Williams' predecessor in title: see paragraph 3.2 of his witness statement. It was thus constructed sometime between 1971 and 1987, probably in or around 1978 when Mr Brookes built the bungalow now known as Lychcroft.[72]I find that Drain 3 has long been in existence, and existed well before Mr Brookes purchased what was then known as Wells Farm in 1971.[73]As regards the lake: the defendant's case is that it was constructed in 1993: see paragraph 14 of the first defendant's witness statement (B/321). The claimant's case is that it was constructed in 1995: see paragraph 10 of the claimant's witness statement (B/173). Neither party has produced any contemporaneous document to assist the analysis of when the first defendant constructed the lake. As he was more closely concerned with the subject matter, I prefer the first defendant's evidence on this issue, and thus find that he commenced construction of the lake in 1993, but also find that construction probably continued into 1994.[74]In both their witness statements, Mr David Brown and Mr Paul Turnbull gave evidence about conversations which they had had with the first defendant about his construction of the lake. Mr Brown stated (B/296):
"5. … He told me he had expected (the lake) to fill up naturally, but it had not, and he had therefore arranged for the bottom to be puddled, and for water from the highway immediately north of Lychcroft , which fed into a catchpit ... at the point marked F on the plan, to be diverted into the lake."
It is of course to be noted that the point marked F to which Mr Brown refers in that paragraph of his witness statement may well reflect the position of the original catchpit, rather than the catchpit which presently exists. Mr Turnbull gave evidence to similar effect in paragraph 8 of his witness statement.[75]In paragraph 14 of his witness statement the first defendant stated:
" ... the lake is filled with water which comes downhill from the main highway to the north the properties ... The lake is also connected to drains in that hillside which appear to have been in there for probably 125 years or so. I say this because they are constructed in stone, and in a manner which looks like ictorian work. Those old drains lead into Wells Farm land at the bottom of the hill."
In his cross-examination (DG/94) the first defendant denied that he had diverted any water from the A4103, or that he had "taken any water off of the road to the lake".[76]At my inspection it was possible to see a number of small pipes feeding water into the lake apart from the inlet pipe from Point F. However, no documentary or photographic evidence was adduced at trial about any system of land drains on Lychcroft land, both above and below the lake, and indeed neither expert had examined any such land drains.[77]While I accept the first defendant's case that when he first constructed the lake it was supplied by water from springs and/or from general surface water to the north of the lake and/or from an original system of land drains on Lychcroft, I also accept the evidence from Mr Brown and Mr Turnbull on this topic, and find that at some time relatively shortly after he constructed the lake, the first defendant supplemented its source of supply by diverting some water from the original catchpit which existed at the top of Tanhouse Lane over to the lake.[78]Mr Brown worked for Bill and Molly Williams at Wells Farm as a contractor from 1987 to 1997 during the period Bill and Molly Williams were running their poultry business from Wells Farm; from 1997 he occasionally worked for Molly Williams and subsequently the claimant. In his witness statement he stated (B/297):
"8. In early 1996 ... the lake overflowed and the areas of Wells Farm around the poultry sheds and one of the sheds itself were severely flooded. A large number of chickens died. ... Mrs William senior was upset and angry with Dennis, so much so that she could barely speak to him. She demanded that he resolve the problem immediately. He did nothing for several weeks. Mrs William senior therefore locked gate 1 so that Dennis could no longer use it to move his sheep on and off Lychcroft by that route. 10. A few weeks after gate 1 was locked, Mrs William senior told me that Dennis had laid an underground drain (Drain 4 marked on the plan) from the lake to Drain 3, restored the flow of water from the catchpit at point F into Drain 1 and assured her these arrangements would resolve the problem and there would be no more flooding. She had therefore unlocked gate 1 and Dennis once again used it to move his sheep. I took the precaution of inspecting the catchpit and found that the diversion of water into the lake had been removed and water was flowing entirely into Drain 1."
[79]Mr Turnbull is the claimant's cousin, and worked for Bill and Molly Williams as the manager of their poultry business at Wells Farm from 1987 to 1990, and then again from the time of Bill Williams' death in December 1995 to about 1997. In paragraph 9 of his witness statement he stated (B/313):
"In the winter of 1996 the lake overflowed and the area of Wells Farm around the poultry sheds and one of the sheds was badly flooded. Substantial damage was caused and I had to help with the clearing up. Mr Williams had died the (previous) yeah so it was left to Mrs Williams to complain. She did so in no uncertain terms ... Dennis did nothing for several weeks. Only after Mrs William senior locked the main gate (Gate1) and left it locked for some time did Dennis eventually discuss the position with her and take steps at his own expense to try and prevent future flooding. I was not involved in those arrangements ..."
[80]In his cross-examination the first defendant stated (DG/95) that there had been no flooding in 1996, that Molly Williams had made no such complaint or protest; and that he did not construct a new drain down to manhole Y.[81]Notwithstanding their respective connections, both of employment and of family, with Bill and Molly Williams, I prefer the evidence of Mr Brown and Mr Turnbull to that of the first defendant on these issues. Both Mr Brown and Mr Turnbull had direct knowledge of these matters, and there is no obvious reason why either should state other than the truth about them. Accordingly I find that there was a flood from the lake in 1996 onto Wells Farm land and at least one of the poultry sheds there, as a consequence of which Molly Williams protested to the first defendant and asked him to do something to resolve the problem; and as a result the first defendant at his own expense and with the permission of Molly Williams constructed a new Drain 4 from the southern edge of the lake onto Wells Farm land and down to manhole Y, which was already situated at the southwest corner of shed 2, a short distance away from Drain 3 ( pace paragraph 18 of the particulars of claim).[82]In about 2008 the highway authority reconfigured the junction between the top of Tanhouse Lane and the A4103. The title plan for Lychcroft at annex B to the particulars of claim indicates that the new line of Tanhouse Lane at its northern end in fact passes over Lychcroft land, with a small portion of Lychcroft land to the north west side of the reconfigured road (marked in green on the plan) having been dedicated to the public pursuant to the deed of dedication referred to in paragraph 3 of the charges register. That entry was made on 16 July 2008.[83]As part of that work the highway authority constructed a new catchpit at point F in the position shown on the laminate sheet. Mr Haiste identified that there are two inlet pipes into that catchpit: see paragraph 2.5 of his report (D/856). Mr Haiste also identified that there are two outlet pipes: one of 225mm leading south down Tanhouse Lane; and another of 150mm "fitted with a restricting device" leading across Lychcroft land to the lake: see paragraph 2.7 of his report.[84]About a year later, in its defect inspection report printed on 9 September 2009, Herefordshire Council Highways recorded the first defendant's report of a problem as follows (C1/448):
"Diverted water from Mr Johnson's Lychgate ... lake to a roadside ditch. The lake is now emptying and his fish are in danger of dying. He said he has rung several times and not had a reply."
Then by letter dated 21 October 2009 (C1/447) John Maddy, the business operations manager of "Amey Herefordshire", who I find to have been contractors working on behalf of the highway authority, wrote to the first defendant:
"Further to our meeting on 19 October I can confirm our discussion that we will return to site to install an outlet to the gully position just below the field gateway. This outlet will enable you to connect to this pipe to reinstate the flow of water to its original destination of your pond. As also agreed we will supply you with 6 inch diameter pipe to enable a piped run from the carriageway edge to the pond. At the meeting you indicate that you will address any issues that could possibly occur with overflow pipe at your own expense."
The ticket for Amey Herefordshire's job number CR 007 entitled "Tanhouse Lane Cradley drainage for Mr Johnson" (C1/449) records that Amey Herefordshire installed a connection of a 150mm pipe into the catchpit, laid 6 metres of 150mm pipe, and supplied the first defendant with 120 metres of 150mm pipe.[85]From that evidence I find that:(1) When Amey Herefordshire originally constructed the new catchpit at point F in about 2008, they did not reinstate the outlet which previously existed from the previous catchpit over to the lake.(2) As a result, there was a reduced supply of water to the lake, which led the first defendant in September 2009 to request Herefordshire Council and/or Amey Herefordshire to take steps to reinstate such supply of water to the lake.(3) Subsequently, in about October 2009, Herefordshire Council and/or Amey Herefordshire made a connection in the catchpit into a 150mm pipe, laid the first 6 metres of 150mm pipe, and supplied the first defendant with a further 120 metres of 150mm pipe for him to lay across Lychcroft land over to the lake.[86]In paragraph 27 of his witness statement, the claimant stated that between November 2012 and 18 January 2013, when he returned to Wells Farm:
"1. Once again water had overflowed from the lake and caused extensive flooding around the two former poultry sheds ... fortunately the water ... did not enter the sheds but all the surrounding areas were flooded. 2. Someone, who I assume to be Dennis or someone on his behalf, had trespassed on Wells Farm with a digger and dug an open trench from the boundary ... between Lychcroft and Wells Farm to the base of the electricity station ... in an attempt to alleviate the flooding ... 3. The trench had been dug in a position that caused increased flooding in and around the electricity substation 4. The electricity substation was flooded and someone ... had made a hole in the wall ... in an attempt to help the flow of water out of the substation 5. The catchpit ... which served Drain 4 from the lake had been dismantled by someone ... in an attempt to increase the flow of water through Drain 4 and so alleviate the impact of the flooding on Wells Farm 6. Water had flowed from the catchpit at Point F and from Tanhouse Lane into Drain 1 and from there into Drain 2, and ... as Drain 2 was blocked with the result that the water had burst through the tarmac on the shared access ... and flowed down the track and flooded the area around the stables ..."
In his cross-examination (DG/24) the claimant agreed that the reference to overflowing in paragraph 27.1 should have been from manhole X, and not from the lake. The catchpit to which the claimant referred in paragraph 27.5 is also manhole X.[87]The trench is shown in the photograph at page A/57. It is not from the boundary, as the claimant asserts in paragraph 27.2 of his witness statement, but instead is from manhole X down to the electricity substation.[88]In his cross-examination (DG/101) the first defendant agreed there had been a lot of water coming out of manhole X, and (DG/103):
"I had started to clear manhole X. It is 5 foot deep, and I am 90 years old. I was trying to clear it. Richard Williams was back from holiday. He went up the wall, and said it was my responsibility and that I should get it cleared ... when Ian Johnson came, I had removed quite a lot of insulation material, but there were still 18 inches left at the bottom."
The first defendant also stated that he had dug a channel, which he described as a 'rigget', with a spade, and that after he had dug that channel, a Mr Goodchap, who was employed by the claimant, had dug a trench with a digger, which is shown in the photograph at page A/57.[89]In his witness statement, Ian Johnson stated (B/337):"17. Soon after the Williams had departed for their holiday water had started to emerge from the first of the two inspection pits in the drain crossing Wells Farm. Father told me that he had tried one blocked drain but to no avail. He did however manage to divert the escaping water adequately to protect the Williams buildings by diverting the flow towards the ditch. Shortly after Richard Williams arrived home he visited Dennis demanding the he ... unblock his drains. Dennis declined pointing out that the drains on Wells Farm were not and have never been his responsibility ...18. On Saturday 16 February 2013 ... I assisted my father in moving his ... ewes from their grazing ... to (Lychcroft) ... We arrived at the entrance of Lychcroft to find the shared ... entrance to his land and buildings locked with a chain and padlock. Father assumed it was because he had refused to unblock their drains. Exasperated, I walked with my wife to the blocked drains. We first lifted the manhole cover of the second inspection pit to see if any water was passing the blockage. Under the cover we were most astonished to find that the inspection chamber had been stuffed full with glass fibre insulation (Rockwool). We removed the insulation and could see that a small percentage of the water was passing the blockage as it was trickling through the second chamber. We walked to the first chamber where lots of water was belching up through the lid and as such nothing could be seen. I found a length of UPC water pipe amongst the rubble ... and attempted to rod the drain with it. To my immense satisfaction I was able to move the obstruction and the water once again flowed through its proper channels to the ditch. The offending wad of insulation emerged almost immediately into the ditch at the end of the drain. ...[90]On 16 February 2013 at 14:59 Ian Johnson sent the claimant the following text (B/399):
"Come see ... I've unblocked your drain for you ... happy days ... big love and kind regards."
Later that afternoon act 18:37 he sent a further text as follows:
"Dear Richard, Will you be informing your solicitor that, as you were informed by me in writing, it was your drain that was blocked, or shall I? ..."
[91]Based on that evidence, I make the following findings of fact:(1) At some time between the claimant's departure on holiday in November 2012 and his return to Wells Farm on 18 January 2013 there was a significant escape of water from manhole X, which the first defendant initially alleviated by endeavouring to clear a blockage at the bottom of manhole X, and by digging a channel along the line shown in the photograph at page A/57.(2) A little while later, on 16 February 2013, Ian Johnson cleared the remaining blockage from manhole X, and sent the claimant the texts cited above. I find there was no reason for Ian Johnson to send the claimant such texts if (a) there had not been such a blockage, and (b) he had not cleared such a blockage from manhole X. I also find that if the claimant thought Ian Johnson was not telling the truth about this, he would have responded to such texts to contradict what Ian Johnson had said.(3) At some time between the claimant's departure on holiday in November 2012 and his return to Wells Farm on 18 January 2013 there was also a significant escape of water from the manhole at the bottom of Drain 1, which is Point A on the laminate sheet, with the result that a deal of water passed down the driveway towards the former poultry sheds.[92]Expert evidence from water engineers These proceedings were commenced in the Worcester County Court. On 28 April 2014 DDJ Toussaint gave general orders for directions (A/124), including an order that there be expert opinion evidence from two categories of expert, both to act as single joint experts. Upon transfer to the TCC, the parties were agreed that expert opinion evidence should still be by way of single joint experts (though now for 3 categories of expert): see the order for directions made on 25 February 2015 (A/139).[93]Thus Mr Haiste was appointed to act as single joint expert, and he prepared his report dated 26 May 2015. However on reading that report, the claimant instructed Mr Moran to inspect and advise. Mr Moran then produced a report dated 30 July 2015, following which the claimant applied for permission to call Mr Moran as his own expert water engineer. At the PTR on 2 September 2015 I allowed that application, and also gave the defendants permission to call Mr Haiste as their own expert.[94]Notwithstanding the tight timescale, Mr Haiste and Mr Moran have been able to discuss the expert issues in the case, and they produced a joint statement dated 22 September 2015. In addition, both Mr Haiste and Mr Moran have answered various questions put to them. Finally they have produced a "multicoloured document", which comprises Mr Haiste's comments on Mr Moran's report in black text; Mr Moran's response in red text; and Mr Haiste's final response highlighted in orange text. Both Mr Haiste and Mr Moran gave oral evidence at the trial. In their joint statement they considered, among other matters, the causes of flooding in four locations:(i) in the area of demolished shed 1;(ii) water flowing down the drive to the former poultry sheds;(iii) minor puddles and soggy ground in front of shed 3; and(iv) overflow of water to the south of point Z shown on the laminate sheet, where drain 3 leaves the eastern side of Wells Farm land.[95]It is convenient to consider the land drainage issues in the context of the respective drains. It is also convenient to consider this aspect of the case both in the context of the restrictive covenant not to do any act which may be a nuisance, and in the context of the general law of nuisance.[96]Issues relating to drains 1 & 2 Paragraph 32 (iii) of the particulars of claim states that:
"Upon (the claimant's) return (to Wells Farm) on 18 January 2013 he discovered that … Drains 1 & 2 had overflowed, causing water to cascade down the drive..."
Such an overflow of water is demonstrated in the video clip at reference 791, which was shown in evidence in the course of the trial. In particular it demonstrates water coming out from under the manhole cover in Drain 1 shown at point A on the laminate sheet, and then running down the surface of Tanhouse Lane, across the shared accessway, and then down the drive towards the sheds.[97]The claim for relief is stated in paragraph 45 of the particulars of claim as follows:
"Given that it is the first defendant who has constructed the lake thereby creating the possibility of flooding and damage to neighbouring property, it is averred that the defendants ... should at their own expense either (i) install and maintain a new drain on Lychcroft from the lake to drain 3 at some point on Lychcroft, and (ii) reinstate the flow of water from Point F along Drain 1, and (iii) maintain Drain 2 and maintain Drain 1 if it is not maintainable by the highway authority; or (iv) install and maintain some other drainage system that will remove the risk of flooding of Wells Farm advocated by a suitably qualified professional in accordance with any order of the court ..."
Paragraph 6 of the prayer states that the claimant claims:
"A mandatory injunction requiring the defendants to implement flood prevention (i.e. drainage) works in accordance with a scheme set out in paragraph 45 above."
It is of course immediately to be noted that no such scheme is in fact set out in paragraph 45 of the particulars of claim. There is also some tension between the first part of the text of paragraph 45, which refers to the construction of the lake, and the relief sought in relation to drains 1 & 2. Notwithstanding that tension, I shall consider the claim is as set out in subparagraphs (ii) and (iii).[98]In paragraph 13 of his written opening submissions Mr erduyn summarised the complaint as follows:
"Covenant (iii) has ... been broken ... by re-routing water which would run through Drain 1 and Drain 2 on Lychcroft and then into Drain 2 and Drain 3 at Wells Farm (scouring the ditches of Wells Farm in the process and providing some visual amenity), and directing this diverted water into the man-made lake on Lychcroft. The variable flow, which can be switched on and off at will by the first defendant or his son, has contributed to flooding at Wells Farm."
In his closing written submissions Mr erduyn submitted:
"132. To cause flooding (other than by natural percolation of water through undefined channels or natural channels) is a nuisance and actionable as such. Higher owners are entitled to let water in this manner naturally flow over lower land of others. Higher owners may acquire rights to drain land through pipes, culverts ditches and the like by grant or prescription. The converse is also the case, in that the lower owner can acquire easement of supply of water in like manner. 133. No easement was granted to the defendants at purchase of Lychcroft and none arose as a quasi easement maturing into an easement under section 62 of the LPA 1925, as this was excluded in the conveyance. No similar problem occurs for the claimant, and he will say right to flow down drains 1 & 2 was established in 1990 and continues. Any flood from Drain 1 or the parts of Drain 2 under Lychcroft is also actionable as such. The spring source of some of the water in Drain 1 meant a constant flow and was beneficial in terms of visual amenity and scour, which is relevant to covenant (iii) above. ..."
[99]Mr Cannings dealt with this aspect of the case in paragraph 10 of his written opening submissions, referring to the decision of Plowman J in Langbrook Properties Ltd v Surrey CC [1969] 3 All ER 1424, and then by reference to the expert opinion evidence in paragraphs 28 to 38.

(b) he submitted:

"… there will have been an obstruction downstream of the chamber on Drain 1… either within the lower piped section of Drain 1 or within the connecting Drain 2; it is difficult to say what caused the obstruction which could be siltation from low flows with the drains, but the piped lower section of Drain 1 is inherently prone to receive debris from the open section of Drain 1 irrespective of low flows, or there could be a defect within the lower piped section of Drain 1 or within the connecting Drain 2."
Mr Cannings' general submission was that the defendants have committed no actionable wrong in this regard: see paragraph 36 of his written opening submissions.[100]In their joint statement Mr Haiste and Mr Moran agreed that the source of water flowing down the drive was overflow from the chamber on Drain 1 (Point A on the laminate sheet). As to the cause, they were agreed:
" ... there was probably an obstruction downstream of the chamber on Drain 1 ... either within the lower piped section of Drain 1 or within the connecting Drain 2. It is difficult to determine what caused the obstruction; it could be siltation from low flows within the drains, but the piped lower section of Drain 1 is inherently prone to receive debris from the open section of Drain 1 irrespective of low flows, and thus more likely. Alternatively there could be a defect within the lower piped section of Drain 1 or within the connecting Drain 2, but it is not possible to confirm this without CCT survey."
[101]It is to be noted that Langbrook concerned the right of a landowner to abstract water which percolates in undefined channels under his own land. As Plowman J held at page 1427:
"The question which I have to decide is ... whether a man whose land has subsided as a result of the abstraction by his neighbour of the water percolating under that land can, in law, maintain an action for consequential damage either in nuisance or negligence. I wish to make it clear at this point what the action is not about: (i) it is not about water flowing in a defined channel either above ground or underground; (ii) it is not concerned with easements, either of support or of any other nature; and (iii) no question of derogation from any grant arises."
In contrast with the facts in Langbrook , Drains 1 & 2 are above ground defined channels.[102]I have come to the following conclusions, and make the following findings of fact, as regards the claimant's case about maintaining Drains 1 & 2:(1) The claimant has not established that Drain 1 is in fact on Lychcroft land. It is apparent that this was a point of concern to counsel who drafted the particulars of claim: see the caveat in paragraph 45 (iii) of the particulars of claim, and that concern has not been alleviated or resolved at trial. The title plan for Lychcroft (A/28) infers that the western boundary of Lychcroft does not include Drain 1, which appears to be situated between the red boundary line and the dotted line depicting the road surface.(2) Inspection at the site visit immediately before trial indicated that Drain 1 is a roadside ditch situated on the roadside, outside (i.e. to the west of) the western boundary of Lychcroft. There is no evidence to indicate that this roadside ditch was created by the highway authority. I therefore find that Drain 1 is a roadside ditch, immediately outside, but appurtenant to, Lychcroft land. The default position in such circumstances, which obtains in the present case, is that the riparian owner (here the defendants) is responsible for its maintenance.(3) That responsibility is irrespective of the further powers of the highway authority, which includes a general power to cleanse and restore the profile of such a roadside ditch. The evidence of Mr Brookes, who stated that during the time he owned Wells Farm the county council maintained Drain 1, is to be read in that context.(4) I accept the joint opinion of Mr Haiste and Mr Moran (see paragraph 99 above) that "there was probably an obstruction downstream of the chamber on Drain 1 ... either within the lower piped section of Drain 1 or within the connecting Drain 2". Notwithstanding their note of caution that "it is difficult to determine what caused the obstruction", I find that such an obstruction was the result of a lack of maintenance of Drain 1, probably the lower piped section, by the first defendant. In my judgement, consistent with the principles established by the Court of Appeal in Leakey v National Trust [1980] QB 485 and Bybrook Barn Centre v Kent CC [2001] BLR 55 , causing or permitting such a blockage to occur in Drain 1, which in turn caused or permitted there to be an overflow from the chamber on Drain 1, with the result that water flowed down the drive, constituted an actionable nuisance.(5) Construing the fourth easement generously, and thus construing it to include reference to a ditch and/or a piped section of a ditch, if Drain 1 and/or any section of Drain 2 was on Lychcroft land, then the claimant would have had a remedy in his own hands: under the fourth easement he would have been entitled to go onto Lychcroft land for the purpose of "inspecting cleansing repairing and maintaining" Drain 1 and/or any section of Drain 2 as is on Lychcroft land. However, that would have been at his expense, and he would be under an obligation to make good any damage caused.(6) However, I have found that Drain 1 is not in fact on Lychcroft land, but instead is a roadside ditch for which the defendants are responsible as riparian owners for its maintenance. In those circumstances the claimant would be entitled, on proper notice to both the defendants and the highway authority, to access Drain 1 and carry out such maintenance as was reasonable in all the circumstances so as to abate the nuisance which had occurred: see the principles stated in ' Clerk & Lindsell ' at paragraphs 30-26 to 30-28.(7) There is a potential anomaly. As noted above, if Drain 1 was on Lychcroft land, any work done by the claimant pursuant to the fourth easement to unblock Drain 1 and thus abate the relevant nuisance would have been at his own expense. However, as Drain 1 is not in fact on Lychcroft land, but is instead a roadside ditch for which the defendants are responsible as riparian owners for its maintenance, the general position is that he would be entitled to recover the costs he incurred in abating that nuisance: see ' Clerk & Lindsell ' paragraph 30-28. However, given the circumstances of the present case, I would construe the fourth easement so that it read "under or appurtenant to (Lychcroft)" so that the position was the same whether Drain 1 was within Lychcroft land, or - as it is - immediately outside but appurtenant to Lychcroft land, and thus that any work done by the claimant to unblock Drain 1 would be at his own expense in either event. Such a conclusion would be consistent with the principles described in paragraph 20-22 of ' Clerk & Lindsell '.[103]I have come to the following conclusions, and make the following findings of fact, as regards the claimant's case about a right of flow of water down Drains 1 & 2.[104]Firstly, I reject Mr erduyn's submission that a right to flow down drains 1 & 2 was established in 1990 i.e. by the 1990 conveyance. The 1990 conveyance reserved to Bill and Molly Williams the rights and easements set out in the first schedule. There were four such: the first was a right of way over the blue land; the second was a right to erect buildings on Wells Farm; the third was a right to enter Lychcroft "for the purpose of constructing any drains sewers soakaways main cables or other service ... for the benefit of Wells Farm"; and the fourth provided:
"A right to use and make connection with the drains sewers soakaways main cables and other services made or laid now or within 80 years of the date hereof under (Lychcroft) or any part thereof and the right to enter into and upon (Lychcroft) for the purpose of inspecting cleansing repairing and maintaining such drains sewers soakaways main cables and other services the person exercising such rights making good any damage caused."
None of those rights or easements contains, or amounts to "a right to flow down drains 1 & 2". Furthermore, no such right is in fact asserted or alleged in the particulars of claim.[105]The general position is set out in ' Halsbury's Laws' volume 100: 'Water and Waterways' as follows: "86. A riparian owner has as incident to his property in the riparian land a natural and proprietary right, not dependent on prescription, grant or acquiescence of the riparian owner above, but arising in the natural course of things, to have the water in any natural channel which is known in defined, on which his land abuts or which passes through or under his land, flow to him in its natural state both as regards quantity and quality, whether he has made use of it or not. 93. The right of a riparian owner to the flow of water is subject to certain qualifications with respect of the quantity of water which is entitled to receive. The right is subject to the similar rights of other riparian owners on the same stream to the reasonable enjoyment of it, and each riparian owner has a right of action in respect of any unreasonable use of water by another riparian owner. … "[106]With that by way of background or introduction, I make the following findings of fact:(1) That part of Drain 2 which is within Wells Farm land is a "natural channel" which is "known and defined", even though it is piped at that point.(2) As such, and subject to the following proviso or caveat, the claimant has a right to a flow of water down Drain 1 and into Drain 2 and thus onto Drain 3.(3) As stated in paragraph 93 of Halsbury cited above, the claimant's right to a flow is subject to the defendants' right to the reasonable enjoyment of the water in the catchpit at point F.(4) Such reasonable enjoyment by the defendants includes an ability (probably subject to obtaining prior permission from the highway authority) to take water from the catchpit to feed the lake, but only in such quantities or volume as it does not prevent a natural or reasonable flow of water down Drain 1.[107]In that context, I now turn to consider the other part of the claimant's claim in respect of drains 1 & 2, namely that of diverting flows from the catchpit at Point F towards the lake instead of down Drain 1.[108]In paragraph 25 of his witness statement (B/340) Ian Johnson stated with reference to events in 2013:
"Next the Williams blamed Dennis for the changes that had been made to the roadside drains by the Council when they improved the northern entrance to Tanhouse Lane. ... Mr Williams was distressed because less water was flowing through the ditch adjacent to his home. Dennis … took advice from an expert to fine tune and balance between the two drains leaving the roadside catchpit hence forcing more water to follow the roadside ditch … since this time Mr Williams has accused Dennis of 'turning the water on and off" .."
[109]In paragraph 27 of his witness statement the first defendant stated that:
"A drainage engineer called George Day fine tuned/balanced the flow i.e. between the lake and Tanhouse Lane as near as possible to how it was previously."
In his cross-examination he stated (DG/100):
"Q: How did he balance the flow? A: He fitted a plastic contraption that fitted on the end of the pipe, and by turning it at an angle he could reduce or increase the flow in either direction. This was soon after 2008."
In my judgement the first defendant was mistaken in stating that this occurred in 2008; instead I find that George Day fitted the orange restricting device (shown in photograph 3 annexed to Mr Haiste's report (D/878) and in the photographs at page D/1170A) in 2013. Subject to that point, I accept the evidence of the first defendant and Ian Johnson in this regard, and find that until matters came substantially to a head in January 2013, when the claimant returned to Wells Farm having been abroad, there was little by way of complaint from the claimant as regards drains 1 & 2; though in early 2013 I find the claimant did then complain that the first defendant and/or Ian Johnson had been turning the water on and off.[110]However, I do not find that the first defendant and/or Ian Johnson had in fact been turning the water 'on and off' at the catchpit at Point F. Instead I find that in 2013 the first defendant instructed George Day to fit the orange restricting device at the mouth of the 150mm outlet pipe to the lake with a view to enabling an even flow of water to be obtained as between the two outlets. I also find that since then, there has generally been an even flow of water as between the two outlets. In those circumstances I do not find that any act of the first defendant amounts to an unreasonable interference with any flow of water from the catchpit at Point F down Drain 1.[111]I also find that the claimant has failed to establish - on the evidence - that the first defendant and/or Ian Johnson have in fact been adjusting the flow in a manner that is detrimental to the claimant. I am fortified in coming to such a conclusion by observing at my inspection (on the Friday before the trial commenced on the following Monday) that it took a considerable period of time for Ian Johnson to lift the cover at the top of the catchpit; and that, before it was lifted, the catchpit gave the appearance of having been undisturbed for a considerable period of time. In my judgement it would be necessary to lift that cover in order to adjust the restricting device. Further, the claimant did not adduce any direct evidence that the first defendant and/or Ian Johnson had in fact been adjusting the flow of water from the catchpit; nor in my judgement did the claimant adduce any evidence from which such a finding could be inferred.[112]I am further fortified in coming to such a conclusion by the fact that in the flooding schedule, the claimant complains about flooding at the far end of Drain 3 at point Z, and thus at its easternmost point on Wells Farm, in June and July 2014 (see the photographs at pages E/1219-1222), from which I infer that there was no lack of flow of water down Drains 1 & 2 into Drain 3 at that time.[113]In all those circumstances, while the claimant has established that he has certain rights in connection with Drains 1 & 2, I do not find on the evidence that he is now entitled to any relief in respect of drains 1 & 2.[114]Issues relating to drain 4 The claim is put both in breach of covenant in paragraph 43 of the particulars of claim and generally in nuisance in paragraph 46 of the particulars of claim. Paragraph 43 provides:
" … in constructing a lake on his land without making proper or adequate provision for drainage in the event of an overflow ... the first defendant has ... acted in contravention of the covenant ... in clause 2 (iii) of the 1990 conveyance ..."
Paragraph 46 provides:
" ... the flooding that has been caused by the installation of the lake ... without adequate or satisfactory provision for drainage amounts to a private nuisance in that it amounts to an unlawful interference with the claimant's use and enjoyment of Wells Farm."
In paragraph 47 the claimant also relies on the principles established in Rylands v Fletcher . Those paragraphs are denied in paragraph 92 of the defence.[115]In paragraph 13 of his written opening submissions Mr erduyn submitted:
" ... the lake at Lychcroft is drained over Wells Farm through Drain 4, which was installed and operated with the consent of the claimant's parents, and this drain has been surcharged by the flows from the lake, leading to extensive flooding since 2012/13."
[116]In paragraph 9 of his written closing submissions Mr Cannings submitted:
"As for the lay evidence in relation to flooding generally, it does not appear in dispute that there have been very few incidents of flooding at the most since November 2014, which is when the claimant had Drain 3 cleared. ... This clearing of Drain 3 has solved the problem of the flooding and indicates that Drain 3 was the cause of the problems at Wells Farm, instead of anything the defendant had done or not done on Lychcroft."
[117]In the counterclaim the defendant stated as follows:
"98. The lake and the entirety of Lychcroft is situated on higher land than Wells Farm and always has been. As such, water naturally drains down from Lychcroft onto Wells Farm and this was the situation even before the construction of the lake. The said water drainage has been enjoyed by the first defendant, all four defendants and their predecessors in title as of right and without interruption for the full period of 40 years and more at all times and for all purposes. 99. The defendants claim the right to drain water from Lychcroft to Wells Farm as a legal easement under section 2 of the Prescription Act 1832 and/or the defendants also the said right as having been used by the first defendant, all four defendants and their predecessors in title ... from time immemorial and/or by virtue of a grant by deed made by all necessary parties which has since been accidentally lost or destroyed."
It is to be noted that it has been no part of the defendant's case at trial that there was ever such a grant by deed as alleged in the last part of paragraph 99 of the counterclaim.[118]Thus in paragraph 13 of his written closing submissions Mr Cannings submitted that "the defendants claim a declaration that their land benefits from a right to drain over Wells Farm."[119]The legal position in summary is that the first defendant was entitled to construct the lake, but as a consequence of causing or permitting that amount of water to accumulate on Lychcroft, which is higher than Wells Farm, he was and remains under a duty to ensure that any outflow from the lake is managed in such a way that it does not cause an encroachment on or physical damage to Wells Farm, or perhaps interfere with the claimants use or enjoyment of Wells Farm. See the principles summarised in ' Clerk & Lindsell on Torts' 21st edition (2014) at paragraphs 20-01 and 20-06. In paragraph 20-06 Prof Buckley summarises the instances of private nuisance as those:
"(1) causing an encroachment on his neighbour's land, when it closely resembles trespass; (2) causing physical damage to his neighbour's land or buildings or works or vegetation upon it; or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land."
The position in the present case is thus somewhat similar to the examples Prof Buckley cites in paragraph 20 -07, namely:
"Nuisances of the first kind, in the nature of encroachments, occur when a man builds onto its own house a cornice which projects over his neighbour's garden so as to cause rainwater to flow thereon. Nuisances of the second kind, causing physical damage to land or something directed or growing upon it, occur when a man allows a drain on his own land to become blocked ..."
[120]In his closing written submissions Mr erduyn submitted:
"136. What then of flooding associated with manhole X in the pipe between it and manhole Z? On the claimant's case there is no prescriptive right to drain through Drain 4 because Drain 4 was permissive (therefore not as of right) and has not been present for 20 years. If he is right in this, then the defendants are liable for flooding whatever the cause, because they were not entitled to concentrate water in Drain 4 and discharge it through on or over Wells Farm. The precise cause of the escape (short of sabotage by the claimant) would be immaterial. 137. The defendants are keen to assert a date more than 20 years before protest by the claimant for the lake in order to establish a prescriptive right to use Drain 4. Given the date of the claim form, the relevant 20 year period would be before 11 September 2013; hence the convenient assertion by the defendants that the lake dates to 1993. Prescription would still fail if, as the claimant contends, the drain was permissive of Molly Williams in 1996 and not as of right. In those circumstances, permission has ended in the drain must be re-routed over Lychcroft (the practical solution to this case whatever the outcome)."
[121]On the issue of whether the defendants' use of Drain 4 was as of right or permissive: I have already found that the first defendant constructed Drain 4 at his own cost and with the permission of Molly Williams: see my findings at paragraph 81 above.[122]I turn to consider the evidence as to whether there is a risk of flooding from Drain 4, in particular at or about manhole X. In his report Mr Moran identified manhole Z, which is situated somewhat to the south-west of manhole X. It follows that Drain 4 as presently constructed does not run in a straight line down from manhole X to manhole Y, but instead veers off to the south-west to manhole Z, and then down to manhole Y. Mr Haiste had not identified manhole Z when he inspected and prepared his report. However, neither party adduced any evidence at trial about the detail of the construction of Drain 4, including in particular the construction of either manhole X or manhole Z. I have already found that manhole Y already existed at the time Drain 4 was constructed.[123]Mr Moran also identified a restriction in Drain 4 between manhole X and manhole Z because, while the pipe between those manholes was of 150mm diameter, the outlet pipe from manhole Z was 225mm diameter: see paragraphs 2.8 and 2.10 of his report. As a result Mr Moran calculated that, while the hydraulic capacity of the line from the lake down to manhole X was 32 litres per second, along the short stretch of pipe between manhole X and manhole Z it was only 21 litres per second (L/sec): see his table 2.25.[124]As regards the cause of the substantial escape of water from, and thus overtopping at, manhole X in January/February 2013: Mr Haiste's opinion was that it was probably caused by an obstruction (see his text in answer to question 4 in their joint statement); whereas Mr Moran's opinion was that it was probably caused by the restriction in hydraulic capacity between manhole X and manhole Z (see his text in answer to question 6 in their joint statement).[125]After seeing Mr Moran's report, Mr Haiste carried out his own calculation of hydraulic restriction, and he calculated that there was indeed a hydraulic restriction of some 10 litres per second, which Mr Moran noted was "very close to my own estimate of 12 litres per second": see his text on page 3 of their joint statement.[126]However, in his oral evidence at trial, Mr Haiste urged caution in connection with any such calculations. He stated (DG/138) that he differed from Mr Moran as regards the accuracy of recording ground levels, in particular as regards the surface of the lake (which was relevant to an assessment of gradient, and thus to an assessment of rate of flow), and of calculating the coefficient of roughness of the internal walls of corrugated pipe (which was also relevant to an assessment of the rate of flow). He identified that his own calculations carried a margin of accuracy of plus or minus 20% (DG/159), and that a similar margin of accuracy should be applied to Mr Moran's calculations. He had identified a different level from that identified by Mr Moran for the level of the surface of the lake: his being 123m above sea level, and Mr Moran's being 124m above sea level; he had also obtained a different measurement of the distance from the lake to manhole X from that obtained by Mr Moran: his measurement was 40m, while Mr Moran's was 34m. He calculated that a 2m fall over 40 metres gave a gradient of 1: 20, whereas a fall of 3m over 33 metres gave a gradient of 1:11 (DG/165).[127]In his cross-examination Mr Moran accepted that any measurement of the level of the lake would be plus or minus 2 metres when using Google Earth as the relevant search tool, which both he and Mr Haiste had done. He also accepted that when he transposed data obtained from Google Earth to AutoCap in order to measure the distance from the lake to manhole Y, the calculation of such a distance would only be accurate to plus or minus 10% (DG/187).[128]In my judgement there was a good deal of common ground in this regard as between Mr Haiste and Mr Moran. I accept Mr Haiste's point that their detailed calculations should be received on the basis that they carry a significant margin of accuracy. Notwithstanding that point, I nevertheless accept Mr Moran's opinion, with which Mr Haiste agreed when preparing his calculations as set out in the multicoloured document, that there was a restriction in hydraulic capacity in the short run of pipe between manhole X and manhole Z, probably within the margin of 10 to 12 litres per second.[129]Returning to the general points of principle as set out in their joint statement: Mr Moran disagreed with Mr Haiste's opinion why water overtopped manhole X in January 7, 2013 as being no more than a reiteration or acceptance of the evidence of Ian Johnson. However, I have accepted Ian Johnson's evidence that there was such an obstruction at that time, though I do not consider that to be the only relevant matter to be considered in this context.[130]Anticipating the enquiry that, if there was such a restriction in hydraulic capacity, why had there not been other instances of water overtopping manhole X since the first defendant constructed Drain 4 in 1996, Mr Moran's opinion (see his text in answer to question 4 in their joint statement) was that:
" … The defendant has been exercising his ability to control the spread of flows between Drain 1 and Drain 4 by adjusting or removing the flow restriction device."
The problem with that opinion is that the claimant has not adduced any evidence that the first defendant and/or Ian Johnson had in fact been "adjusting or removing the flow restriction device" nor has the claimant adduced any evidence from which such an inference could be drawn. To provide the necessary factual basis to found Mr Moran's opinion, it would have to be established that the first defendant and/or Ian Johnson had in fact been "adjusting or removing the flow restriction device" on many occasions since 1996. As I have observed, there is simply no evidence of their having done so. I therefore conclude that, while there is indeed a restriction in hydraulic capacity between manhole X and manhole Z, which makes the line between those manholes vulnerable to blockage and/or to overtopping in circumstances of extreme rainfall (though neither party adduced any evidence about the levels of rainfall at this location, save for Mr Haiste observing (DG/157) that there was no record of a 'significant weather event' being recorded in the immediately accessible pages of the Meteorological Office's website which he had reviewed), those circumstances have not in fact lead to any substantial escape of rainfall and/or overtopping at manhole X since 1996. The inference to be drawn is that the capacity of Drain 4, albeit restricted, has been sufficient to carry the outflow from the lake down to Drain 3 at all material times since 1996.[131]I therefore conclude that the cause of the substantial escape of water from, and thus overtopping at, manhole X in January/February 2013 was a combination of the restriction in hydraulic capacity in the line between manhole X and manhole Z, together with the obstruction which Ian Johnson removed.[132]I do not find that the claimant's entries in the flooding schedule (E/1171-1222) establish that there has been "extensive flooding (from the lake and/or Drain 4) since 2012/13". In particular:(1) as regards the entry for March 2013: photograph 15 is in fact stated to refer to rubble, not drainage and/or flooding; similarly photograph 17 is stated to refer to tipping; photograph 16, 18 and 19 do not illustrate, either at all or sufficiently, the laying of new drains, let alone establish that the lake was overflowing;(2) the entry for September 2013 relates to Drain 3, not Drain 4;(3) there is no photograph to accompany the entry for October 2013;(4) the entry for December 2013 relates to Drain 3, not Drain 4;(5) as regards the entry for February 2014 and photographs 23-29: all of those photographs save photograph 26 are in fact general views of the lake or Drain 3. Photograph 26 does not of itself prove where the water to the side of the electricity substation came from;(6) as regards the entry for March to April 2014 and photographs 30-32: again, those photographs do not of themselves prove where the water shown in those locations came from;(7) the entry for April 2014 and again refers only to Drain 3;(8) there is no photograph to accompany the entry for June 2014;(9) as regards the further entry for June 2014 and photographs 36-45: these are all stated to relate to Drain 3;(10) there is no photograph to accompany the entry for July 2014;(11) as regards the further entry for July 2014 and photographs 46-47: these are again stated to relate to Drain 3;(12) there is no photograph to accompany the entry for 15 October 2014, which is in any event described as "minimal";(13) as regards the entry for November 2014, this is asserted to be the "result of market gardening and the overflow from Drain 2", and thus not to do with Drain 4 and/or the lake;(14) as regards the further entry for November 2014 and photographs 48: that photograph does not of itself illustrate, either at all or sufficiently, the laying of new drains, let alone establish that the lake was overflowing; and(15) there is no photograph to accompany the entry for February 2015.[133]From the evidence relating to this section of the judgement I make the following findings of fact:(1) I have already found that the first defendant constructed Drain 4 at his own cost and with the permission of Molly Williams. It follows that the defendants' use of Drain 4 was at all material times permissive;(2) Without an effective means of accommodating the outflow from the lake, there is a material risk of flooding to Wells Farm;(3) That risk has been accommodated since 1996 by the construction and use of Drain 4;(4) Since 1996, save for the events in January/February 2013, there have been no material incidents of flooding at Wells Farm from the lake and/or Drain 4, whether at manhole X or elsewhere along Drain 4;(5) However the claimant has now withdrawn permission for the defendants to use Drain 4.[134]In those circumstances, while I do not accept Mr erduyn's submission that the defendants would be "liable for flooding whatever the cause", I do accept his submission that "Drain 4 was permissive". It follows that the defendants - and the first defendant in particular - had no right to construct an outlet pipe from the lake into manhole Y close to Drain 3; instead as a result of a conversation between the first defendant and Molly Williams in or about 1996, the first defendant was permitted to do so. As that permission has now been withdrawn, the defendants will have to re-route the outlet pipe from the lake in such a way that it does not flood Wells Farm in the future. That can be done by constructing a new pipe from the lake down the south-eastern leg of Lychcroft to the ditch at a point to the east of point Z shown on the laminate sheet.[135]Further, because the first defendant constructed the lake, in my judgement any outflow from that man-made lake does not amount to water naturally draining down from Lychcroft to Wells Farm as alleged in paragraph 98 of the counterclaim. If and insofar as the relief claimed in paragraph 2 of the prayer to the counterclaim refers to any outflow from the lake, the defendants are not entitled to such relief.[136]Issues relating to Drain 3 There are two separate issues relating to Drain 3:(1) issues relating to the flow of water into Drain 3 from or fire Drains 1 & 2; and(2) issues relating to obstruction of Drain 3 at the point it leaves the eastern boundary of Wells Farm, which is at point Z marked on the laminate sheet.[137]In the last sentence in paragraph 27 of the particulars of claim the claimant alleges:
"In addition the absence of a regular and reasonable volume of water in Drain 1 has resulted in the absence of a regular and reasonable volume of water in Drain 3 and consequently (the claimant has) lost the amenity value of a stream adjacent to their bungalow on Wells Farm."
That point is repeated in paragraph 28 of the particulars of claim.[138]However, no specific relief was originally claimed in the prayer to the particulars of claim as regards Drain 3. At trial, Mr erduyn sought permission to amend paragraph 45 to include a new subparagraph (iv) with the text "maintain a grille at point Z". I allowed that application although, as with the other subparagraphs, there remains a tension between the opening text of paragraph 45, which refers to the construction of the lake, and the relief sought under that paragraph. In any event, the relief now claimed in respect of Drain 3 only relates to the second of the issues to be considered in relation to Drain 3.[139]In light of the findings I have made as regards Drains 1 & 2, in particular those set out in paragraphs 103 - 106 above, the claimant has failed to establish that he is now entitled to any relief in respect of any particular level of flow of water down Drains 1 & 2 and then into Drain 3. Accordingly, if and insofar as such a head of claim is articulated in the particulars of claim, for the reasons set out above, such a claim fails.[140]As regards the issue of obstructing the flow of water at point Z is concerned: it is first to be noted that no specific allegation about this issue is made in the particulars of claim. However, in paragraph 13 of his written opening submissions Mr erduyn submitted:
"The outflow from Drain 3 re-enters Lychcroft, but the grille protecting the point of re-entry is not maintained by the defendants, and the culvert beyond is in disrepair, which causes water to back up and flood Wells Farm."
[141]In paragraph 30 (e) of his written opening submissions Mr Cannings summarised Mr Haiste's opinion as follows:
" … the overflow on to Wells Farm at the termination of Drain 3 will have been caused either because of a blocked screen at the entry to the pipe at the end of Drain 3, or an obstruction within the pipe itself (although the former is more likely)."
[142]In paragraph 145 of his written closing submissions Mr erduyn submitted:
"Overflowing of the drain at point Z is agreed by the experts to be the result of the blocked grill. Once more this is the defendant's responsibility as it is on Lychcroft."
[143]Mr Cannings dealt with is this issue between paragraphs 36 and 40 of his written closing submissions. In paragraph 37 he submitted:
"The defendants believed that the grille ... was damaged by the claimant's workmen in November 2014 when Drain 3 was cleared …; this is denied by the claimant. The court will have to make a finding on this point in light of the experts' comments."
[144]While this issue is not clearly stated as a head of nuisance in the particulars of claim, both counsel referred to it in their opening and closing submissions, and each party adduced evidence, both of fact and of opinion, about it in the course of the trial. In those circumstances, it is appropriate and proportionate for me to deal with this issue in this judgement.[145]Mr Haiste took photographs of Drain 3: see photographs of 7 - 10 appended to his report (D/880-1). The grille is shown in photograph 10, just on the defendant's side of the boundary fence. See also the photographs in the flooding schedule at E/1121-2. The claimant (or his wife) took photographs in June 2014 of water backing up from point Z, and then breaching the southern bank or side of Drain 3: see the photographs at E/1213, 1214, 1219 and 1221.[146]On the issue of whether the cause of the backing up and flooding was the first defendant's failure to keep the grille clear, or was the result of the claimant's contractor damaging the grille in some way thereby rendering it ineffective, the evidence was as follows. At the end of the long paragraph 28 of his witness statement, the claimant stated (B/187) that in June 2014:
"I discovered that the culvert under Lychcroft that is the continuation of Drain 3 ... had collapsed and that any water that was in Drain 3 could not get through the culvert, and as a result was flooding that area of Wells Farm. My solicitor wrote ..."
In paragraph 25 of his supplemental witness statement relating to the flooding schedule (B/363), the claimant stated:
"It was as a result of the poor maintenance by the defendants that this flooding occurred. The culvert has been damaged by market gardening ... I had a contractor out to look at the culvert and he too confirmed that the block was on their land and not ours. He therefore couldn't do the work required to unblock the culvert ..."
[147]Neither expert observed or reported on any collapse of the culvert across the neck of land at the south-east corner of Lychcroft. Instead, as both Mr erduyn and Mr Cannings noted in their submissions, the experts' opinion as expressed in their joint statement was:
"… we believe water would have flowed onto the (claimant's) land either because of a blocked screen at the entry to the pipe at the end of Drain 3, or obstruction within the pipe itself, although the former is more likely."
[148]I accept the experts' joint opinion that a blockage to the grille is the more likely, and thus the probable, cause of backing up of water at or around point Z, and thus of water escaping from Drain 3 onto Wells Farm land to the south of Drain 3 in the vicinity of point Z. I also find that the probable cause of the grille becoming blocked in about June 2014 was lack of maintenance on the part of the first defendant. I do not find that there has been any material blockage, and consequential flooding, in this location since June 2014.[149]However, the provisions of the 1990 conveyance apply equally to this culvert, and to the grille in front of it, as they would have done to Drains 1 & 2 had they been on Lychcroft land. Accordingly, the claimant, whether by himself or by a properly instructed contractor, would be entitled to go onto Lychcroft land for the purpose of "inspecting cleansing repairing and maintaining" Drain 3 and/or the grille at the mouth of the culvert. That would be at his expense, and he would be under an obligation to make good any damage caused. As it happens, no injunction is sought in connection with any blockage to Drain 3. Were one sought, then in light of the terms of the fourth easement in the 1990 conveyance, it would not be appropriate - on the facts relating to Drain 3 in the present case - to grant an injunction in respect of blockage to Drain 3 in June 2014. Damages are claimed for the nuisance, and I will deal with those below.[150]The related claims for damages The major claim is for loss of rent of Shed 3, on the footing or basis that it would be converted into office space. In paragraph 36 of the particulars of claim the claimant stated:
"In 2012 the claimant refurbished one of the former poultry sheds for use as offices and proposed letting them to a company he owned, Greendeal.net Ltd from January 2013 at a rent of £42,000 per annum for a term of 20 years. The premises comprise 40,000 ft.² of offices and grounds of 3 acres including extensive car parking. The claimant has not felt able to commence operations from the offices for fear that the first defendant will harass customers and suppliers and staff and otherwise interrupt the business of the company. As a result the claimant has lost the rent that would have been paid under the lease and this loss continues ...."
From my inspection, and indeed from the valuation experts' reports, it is clear that, on the basis that the claimant is here referring to Shed 3, the statement in the first sentence of paragraph that he "... refurbished one of the former poultry sheds for use as offices and proposed letting them..." is incorrect: the claimant only refurbished one small part of Shed 3 as an office; the very substantial remainder of Shed 3 has never been refurbished.[151]In their further joint statement (E/1130), Mr Cluley MRICS and Mr Webb FRICS gave their opinions in paragraph 2 as follows: (1) As regards Shed 3 in its current state, they stated:
"(ii) We agree that Shed 3 is not lettable in its current state (iii) We considered the market rent achievable for the existing level of development on the assumption the asbestos had been removed and building regulations and energy performance certificates obtained. We agree the building would be challenging to let due to lack of demand in this area for office space and that achieving a letting may take considerable time, possibly more than 12 months. We agree the rent ultimately achieved would be £5,000 per annum." (2) As regards Shed 3 developed into four is units in accordance with the planning permission which the claimant has already obtained, they stated: "(iv) … We consider the layout to be impractical and unsuitable taking into account the odd shaped workspaces, the wasted space, the very limited access and the low eaves. We agree it would be extremely unlikely that all four workshops would attract tenants. Our overall view was that the approved design is commercially nonsensical ..." (3) As regards Shed 3 developed not in accordance with the planning permission which the claimant has obtained, but instead on the basis or footing that the existing small office remained in situ, and the substantial remainder was split into two workshops, they stated: "(v) … We agree there is currently a proven demand for workshops, and a proven lack of demand for offices in this area, and therefore a workshop development is currently more likely to be let quickly and to generate an income. In our view the existing office will remain and the rest of Shed 3 will become two workshops, i.e. one each at the west and east ends with a vehicular access to each. The rent achievable will be lower than for other workshops in the area taking into account the large relative size of each unit, the low eaves, ceiling heights and the multiple internal stanchions. ... We agree the rent achievable for Shed 3 on this basis would be £25,800 per annum."
[152]Neither of the valuation experts was called at trial. In paragraph 7 of their first joint statement (E/1129) they set out Mr Webb's opinion that it would cost "approximately £100,000 to remove transport and dispose of the asbestos from Sheds 1, 2 and 3 in accordance with the appropriate hazardous waste regulations and lining the internal wall of Shed 3 with plasterboard ...". It is to be noted that Shed 1 has in fact already been demolished, save for a few courses of brick or blockwork at ground level.[153]As regards letting Shed 3 in its present state, the valuation experts' joint opinion is that "the building would be challenging to let due to lack of demand in this area for office space". Based on that evidence, I find that the claimant has not established on the balance of probabilities that he would let Shed 3 in its current state.[154]As regards letting Shed 3 in accordance with the planning permission which the claimant has already obtained, the valuation experts' joint opinion is that "the approved design is commercially nonsensical ...". Based on that evidence, I also find that the claimant has not established on the balance of probabilities that he would let Shed 3 in accordance with the planning permission which the claimant has already obtained i.e. converted into four separate units. That is the basis upon which this head of claim is advanced in paragraph 36 of the particulars of claim, and I do not find it proven.[155]As regards letting Shed 3 on the basis or footing that the existing small office retained, but that the substantial remaining floor-space is converted into two workshops, while the expert's opinion is that " there is currently a proven demand (in this area) for workshops" the claimant has not adduced any evidence as to the cost of converting Shed 3 into two workshops. In paragraph 2.1.4 of the summary section of his report Mr Webb stated (E/1055):
"There is no evidence of any market demand the rented office space in this area. Shed 3 could be let for light industrial use for a rent in the region of £24,000 per annum, but complying with planning and building regulations will incur an initial outlay of around £100,000. It will be difficult to find a tenant and therefore doubtful whether this will be a prudent investment."
That assessment of cost is consistent with Mr Webb's opinion in paragraph 6.5.4 of his report (E/1079) that the costs of removal of asbestos alone would amount to £87,000 plus AT. The claimant did not adduce any evidence at trial to prove that he was in a position to incur such a level of expenditure in order to carry out all the necessary work in order to convert Shed 3 into workshops.[156]It is to be noted that the relevant planning permission was granted on 29 March 2010 (E/1066). However, the claimant has taken no steps to carry out any work to Shed 3 since that date, and in particular took no such steps before the events of January 2013. I therefore draw the inference that the claimant did not consider it was prudent or sensible for him to incur such a level of expenditure during this period i.e. his conduct during this period is consistent with the opinion expressed by Mr Webb, namely that it would be difficult to find a tenant for Shed 3 even if developed into two workshops, and therefore it was doubtful whether such would be a prudent investment. I therefore reject the claimant's assertion in paragraph 36 of the particulars of claim that the reason he "... has not felt able to commence operations from the offices ..." was concern about potential activity or behaviour by the first defendant. Instead I find that the main or principal reasons were the very substantial amount of expenditure which the claimant would have to incur to develop Shed 3, coupled with the very real difficulties he would have had in letting Shed 3 in any event, both of which factors I find he understood or appreciated at all material times.[157]For all those reasons, the claimant fails to prove this head of claim.[158]The second, and relatively minor, claim for damages is for loss of rent of the field to the south of Drain 3, on the basis that the first defendant caused the water in Drain 3 to back up and flood the field to its south in or around June 2014.[159]The first difficulty with this head of claim is that such flooding is only alleged to have occurred in or around June 2014. Before then claimant's complaint was that the defendants had brought about a situation whereby there was too little, rather than too much, water in Drain 3. The claimant has not adduced any evidence to establish that before June 2014 and the field was subject or prone to such flooding.[160]The second difficulty with this head of claim is that the claimant has not given any details of any letting of the field prior to June 2014. Indeed, when the claimant's solicitors wrote about this on 23 June 2014 (B/241-8), although they complained about flooding, they made no reference to the claimant having suffered any associated loss of rent.[161]The third difficulty with this head of claim is that the claimant made no specific reference to an alleged loss of rent of £200 in either the particulars of claim, or in his main witness statement. However, in paragraph 18 of his supplemental witness statement relating to the flooding schedule, he stated (B/362):
"Up until land was waterlogged and the stables flooded, they have always been very popular and I never struggled to let them. I confirm that a lady viewed the stables last year and decided not to rent them due to the field retaining too much water. I attach ... an e-mail from the prospective tenant confirming that the water on the land was too much for the horses."
However, the claimant adduced no evidence giving details of any prior letting i.e. when, to whom, and at what rent.[162]The e-mail referred to immediately above is from someone named "Megan"; it is dated 11 August 2014 and was sent to the claimant's wife (B/410). Megan states:
"Thank you for letting me have a look at the paddock and stables with a view to renting. However with the massive amount of flooding at the far end ditch, I don't think it's safe for the horses. If this flooding is fixed I'll be happy to talk to you about renting the stables and paddock."
Based on that e-mail, I find that there was a short period of time in 2014 when the field may not have been suitable for letting the use by horses. But the claimant has failed to establish how long the field was not in a condition suitable to be let for use by horses, nor what was an appropriate rent. In those circumstances, the claimant fails to establish this head of claim. I: Claims for nuisance and harassment[163]The claimant complains about three main aspects of the first defendant's behaviour:(1) threatening and abusive behaviour;(2) trespassing on Wells Farm; and(3) tipping of rubble on Lychcroft. I will consider each of those aspects in turn.[164]Threatening and abusive behaviour This is complained of, both as a nuisance: see paragraph 33 to 35 of the particulars of claim, and as conduct amounting to harassment within the meaning of the Protection from Harassment Act: see paragraphs 40 to 42 of the particulars of claim. 10 specific instances of behaviour or conduct are alleged in paragraph 35 of the particulars of claim, some of which also involve allegations of trespass. It is convenient first to consider the evidence about each of the 10 alleged instances.[165]( 1) 18 January 2013 . The particulars of claim allege that: "The first defendant walked across the claimant's patio and garden to get to his sheep on neighbouring property to feed them".[166]Paragraph 64 of the defence alleges that:
"… it is admitted that the first defendant walked across the claimant's patio and garden as alleged. The first defendant had always done so at the request of the claimant and (his wife) when they were absent from Wells Farm. … The first defendant was unaware that the claimant and (his wife) had returned from holiday on the previous day."
[167]In paragraph 33 of his witness statement the first defendant stated (B/326):
"… Richard Williams and his wife often away from Wells Farm and would for instance spend periods of time in London or in Sri Lanka... whenever Richard and Swarni Williams were away, they would leave their keys with me and ask me to ' keep an eye on the place'…"
[168]I accept the first defendant's explanation. In those circumstances I do not find that the first defendant's conduct on that occasion amounted to a trespass, nor did it amount to either a nuisance or harassment.[169](2 & 3) 16 February 2013 . The particulars of claim allege that:
"The first defendant and his son and daughter-in-law were walking around farm buildings on Wells Farm after gaining access by cutting a padlock and chain on Gate 1. .. the first defendant's son and daughter-in-law were on the drive, refusing to leave, whereupon the first defendant's son sat on the claimant in the claimant's car, forcibly pinning him down. 20 minutes later the first defendant's son forced his way into the claimant's home and threatened to 'having him knee capped' resulting in an emergency call to the police."
In paragraph 65 of the defence, the first defendant denies that he entered Wells Farm in the manner as alleged, but admits:
"… that Ian Johnson and his wife entered Wells Farm at the claimant's request to unblock the drain ... … Upon finding (Gate 1) locked, Ian Johnson believed the gate was locked because of the blocked drains. Ian Johnson and his wife climbed over the gate and unblocked the drains ... Ian Johnson then visited Wells Farm and requested the key to the gate ... in order to take sheep on to Lychcroft. The claimant responded in a rude and insulting manner and refused to unlock either ... Gate 1 or Gate 2... The first defendant needed to open the gates so that he could move ewes that were in lamb and required shelter. As a result of this Ian Johnson had no option but to cut the chains on both gates. The claimant made a complaint to the police about this incident but, following questioning, took no further action against the first defendant."
[170]In his witness statement the claimant stated (B/179):
"I found that the lock on Gate 1 had been drilled out and the chain cut, and that Dennis and Ian ... were driving sheep through Gate 1 and Gate 2 onto Lychcroft. Shortly afterwards Mr and Mrs Ian Johnson appeared on our drive ... shouting abuse to myself and (my wife). (My wife) ran into our house to avoid him and called the police ... I got into my car to avoid Ian, but he managed prevent me closing the door, climbed in after me, sat on my lap all the time shouting abuse. For some reason he then kissed me on the face. His wife persuaded him to leave me alone and I managed to get out of my car and run to my house. Ian and his wife followed me and stood out my front door with Ian hurling further abuse, swearing and threatening me. He said' I wait view on a dark night and you will be knee capped as I have three people to do it'. Dennis then arrived and escorted Ian and his wife back to Lychcroft."
[171]In paragraph 19 of his witness statement (B/338) Ian Johnson stated:
"I then visited Richard Williams who refused to give me key to the padlock. I became angry and told him to stop picking on my father and he ran away into the house, where he falsely reported me to the police for assault. I left and collected my bolt cutters from my workshop and removed the chain and moved the sheep onto Lychcroft land."
[172]There is a palpable contrast between the way in which one specific aspect of this incident was described by the claimant in paragraph 35 (iii) of the particulars of claim, where he makes the serious allegation that Ian Johnson "forced his way into the claimant's home", and the way he described the incident in his witness statement, where he makes no allegation that any time Ian Johnson entered his home. In this respect, I find the claimant's account of this incident materially inaccurate and/or exaggerated.[173]I find that the claimant's complaint of conduct and behaviour on this day is largely directed against Ian Johnson, rather than the first defendant, save in the context of the first defendant being party to cutting bolts to Gate 1 and/or thereafter trespassing on Wells Farm land between Gate 1 and Gate 2 . I do not find that the first defendant caused Ian Johnson to behave in any particular way towards the claimant: Ian Johnson was at all material times responsible for his own behaviour. I therefore disregard, for the purposes of these proceedings, the allegations of conduct or behaviour which are made primarily against Ian Johnson. The claimant's claim in this regard against the first defendant is that his behaviour in causing or permitting or encouraging the removal of the lock to Gate 1 was unreasonable and or unjustified. However I find that the first defendant's conduct or behaviour is to be construed as being part and parcel of his moving his sheep onto Lychcroft land. In that context, I find that the dominant purpose of the first defendant's conduct that day was to facilitate the movement of his sheep onto Lychcroft land, rather than to be a nuisance to, or to harass, the claimant.[174](4) 26 March 2013 The particulars of claim allege that:
"The first defendant came on to Wells Farm and shouted abuse at the claimant and (his wife) through the kitchen window of Wells Farm. First at about 12 p.m. and again at about 1730 p.m."
[175]Paragraph 67 of the defence alleges:
"(that) paragraph is denied, this incident simply did not occur."
[176]In his witness statement the claimant stated (B/181):
"At about 12 p.m. Dennis appeared outside my house and shouted abuse at Swarni and myself through the kitchen window and saying he had agreed the boundary with my late parents. Later that day, at about 5:30 p.m., he appeared at the window again denying that he had instructed Wansbroughs, solicitors, to act for him and that he was going to make a claim for damages."
In his cross-examination the claimant confirmed that this event happened in the way he described (DG/68).[177]The first defendant did not refer to this specific allegation in his witness statement. However he stated in his cross-examination (DG/108) that:
" after 13 February 2013 I had been warned by the police, amongst others, not to contact the Williams in any way …"
With the rider that I construe that as a reference to the events of 16 February 2013, I accept that evidence.[178]Save as regards the specific allegation that the first defendant "shouted abuse", I generally accept the claimant's evidence about these events.[179](5) 27 March 2013 The particulars of claim allege that: "The claimant placed a timber pallet across Gate 3 opposite the stables on Wells Farm (which are rented to tenants Kelly and Dean Marston) to prevent the first defendant from attempting to put his sheep onto Wells Farm. The first defendant approached the tenants and threatened to break the pallet at night to let his sheep onto Wells Farm. On the same day the first defendant removed Gate 3 from its hinges and released about 150 sheep onto Wells Farm[180]Paragraph 68 of the defence alleges:
"… the pallet referred to is still in situ now. ... it is denied that the first defendant made any threats relating to the pallet. The first defendant did not unhinge Gate 3. He is 89 years old and could not have done so even if he had tried, and in any event unhinging Gate 3 would not have released the sheep as alleged, as the pallet would have restricted this. At around this time, a small number of the first defendant's sheep did escape on to Wells Farm, but this was unintentional. Upon instruction from the police, the first defendant did not seek to recapture the sheep; they were returned to him by (the claimant's wife) and Mrs Marston via Gate 2. ..."
[181]In his witness statement the claimant stated (B/181):
"… at about 2:30 p.m. I saw Dennis take Gate 3 off its hinges... and put about 150 sheep onto my field. I rang the police and told them that we would be putting them back on to Lychcroft. The police came to see Dennis and I. They advised him to stay off Wells Farm They also told me that they had visited Ian Johnson and issued him with a harassment notice ... and assured me Ian had no firearms in his house. In late afternoon I saw Dennis leave and return with two gun-shaped bags which he took from his car and into his house. Swarni and myself had to move the sheep back onto Lychcroft."
[182]Again, the first defendant did not refer to the specific allegation in his witness statement.[183]Neither Mr nor Mrs Marston were called as witnesses at the trial; the allegation that the first defendant threatened them is therefore based on pure hearsay evidence, and I do not find that allegation proven. Instead, I find there was on this day an accidental escape of the first defendant's sheep from Lychcroft on to Wells Farm land. I do not find that the first defendant removed Gate 3 from its hinges. I find that the claimant and his wife, rather than his wife and Mrs Marston, moved the sheep back onto Lychcroft land.[184]It is is to be noted that the police did not consider it either necessary or proportionate to take any action so far as the first defendant was concerned in connection with any of the matters which occurred that day; instead they gave him what appears to be very sensible advice , namely to stay off Wells Farm.[185](6) 28 March 2013 The particulars of claim allege that:
"The first defendant moved metal gates onto land of Wells Farm, erected fences with them, and again released sheep onto Wells Farm. He accused the claimant of trespassing and said he 'could get violent'. Further unpleasant exchanges ensued and the police were called, both parties thereafter being arrested (later released)."
[186]Paragraph 69 of the defence alleges:
"…the claimant's recollection of events is denied. The first defendant needed to move his sheep to fresh grass, but the claimant refused to allow him through the locked gates. The first defendant had erected temporary hurdles to prevent his sheep from straying on to Wells Farm. The claimant lost his temper and threw the hurdles over the fence, and attacked the first defendant with the bar that held the hurdles together. The claimant failed to hit the first defendant, and thereafter threw the said bar at him. As a result of the claimant removing the hurdles, the sheep escaped. It is admitted that both the claimant and the first defendant were arrested. The first defendant was subsequently released without charge. The claimant is required to prove that he was not charged."
[187]In his witness statement the claimant stated (B/181):
"At about 7:20 a.m. I found Dennis moving metal gates across the track ... he told me he owns the whole area and that we were illegally trespassing on his land. He said' stop it or I could get violent' and he would get his son involved i.e. another threat of violence. Swarni videod the incident. After she stopped the video he said to her very angrily 'here we have English law and you are a foreigner to go back to where you came from'. He also claimed that he had been given lifetime grazing rights on our land since 1990. Swarni called the police. Two arrived at about 8:15 a.m.. Dennis wanted to move his sheep onto the field. The police suggested that I should allow him to do this, and that I would be arrested if I did not. I declined and was arrested. Dennis was also arrested. At some stage the police must have called for reinforcements, as at about 8:50 a.m. four fast response vehicles arrived with a further eight policemen. While I was under arrest about 150 sheep that Dennis was proposing to put on to Wells Farm got through a hole Dennis had created in the boundary fence and got onto Wells Farm. After Dennis and I and the police had left, Swarni with the help of neighbours had to round up the sheep and put them back onto Lychcroft."
[188]In paragraph 36 of his witness statement the first defendant referred to this video, and commented (B/327):
"The claimant has made numerous allegations to the effect that I have harassed him or his wife. I am 90 years old, and Mr Williams is probably half my age and about twice my size. As for Mrs Williams, I would not dream of being aggressive towards a lady. See … a photograph taken by Richard Williams purporting to show that I was attacking his wife. What man would stand back and take a photo-shoot of his wife being attacked?"
[189]During the trial a video clip (taken for the most part by Swarni Williams on an iPhone) of the first part of this incident was played in evidence. The immediate point is that it shows the claimant, Swarni Williams and the first defendant on the drive just down from the shared accessway shown in exhibit J (ii) to the particulars of claim (A/54).They are all talking, but without raised voices. None of the three persons present is behaving in a violent or aggressive manner towards another.[190]The claimant prepared a 10 page transcript of the conversation which took place on this occasion (B/212-221). There are some inaccuracies in this transcript when compared to the audio recording on the video clip. In it he inserts descriptions of various sections of the transcript, such as "Dennis Johnson vehemently denying Wansbroughs solicitors is representing him" and "Dennis Johnson threatens Richard with violence" which in my judgement are exaggerated in their tone or language; they do not accurately reflect the general nature or tenor of the conversation which occurred. It is plain that all three persons are agitated and uncomfortable, no doubt because each held firm views as regards the general position which obtained concerning Wells Farm and Lychcroft, but none of them (including in particular for these purposes the first defendant) are behaving in a vehement or threatening manner.[191]The first defendant's reference to "it's going to get violent" (B/213) is but one line in 10 pages of text, and it was not made in a threatening or intimidating manner. Its immediate context is that the claimant had just gone to remove a piece of string or rope from a metal hurdle, probably one of the "temporary hurdles" to which the first defendant referred in paragraph 69 of the defence, which prompted the first defendant's statement that "this is going to get very very serious". That in turn prompted Swarni Williams to ask "why why?" Swarni Williams then responded to the first defendant's next statement that "it's going to get violent" with a further question "who is going to get violent?" The fact that both the claimant and his wife did not move away, but instead remained in conversation with the first defendant for a considerable period of time after these words were exchanged is a clear indication that neither felt threatened by the first defendant's words and/or did not themselves perceive that the first defendant himself was going to get violent.[192]Further, it is to be noted that the claimant's account of this incident in his witness statement to page B/181 is somewhat selective; he did not refer the following statements made by the first defendant in the course of this conversation, as recorded on the video clip and also on the transcript:
"Did you say the police were coming? Let's wait till they come, please" (B/213); "
When it is in dispute we should both leave, we should both leave" (B/214); and "Let's just sit quiet and wait till they come …" (B/214), all of which give a rather different, and in my judgement a rather more rounded and representative flavour of the first defendant's behaviour and general demeanour during the course of this conversation.[193]It is also to be noted that the police arrested both the claimant and the first defendant, and on his own case, the claimant was the first to be arrested, following his refusal to agree to the police's suggestion that he allow the first defendant to move his sheep onto Wells Farm. It is further to be noted that no charges were brought against either the claimant or the first defendant.[194](7) 22 April 2013 The particulars of claim allege that:
"Kelly Marston, one of the claimant's tenants, called the claimant to tell him that the first defendant had once again approached her and her husband and had been abusive. He had remonstrated with them for closing the gap in the metal fence that the first defendant had created, and which the first defendant said was his property. The tenants left to avoid any confrontation. The first defendant went into his house and returned with a shot gun. He stood near the gap in the fence for approximately 30 minutes to guard it. The claimant called the police and they took the first defendant's guns away from him ... "
[195]Paragraph 70 of the defence alleges:
"The claimant's explanation of events ... is denied, save for … the temporary removal of the first defendant's guns by the police. It is denied that the first defendant remonstrated with the Marstons, and it is denied there is any metal fencing. On that day the first defendant had shot a mole in his field, and continued to walk around his sheep with his gun, inspecting for more moles. As to the allegation that the first defendant was guarding a gap in the fence 30 minutes, it is assumed that this is a misunderstanding of the first defendant's activities. In order to search for moles the first defendant must remain extremely still and quiet ... it is assumed that when the claimant believed the first defendant was guarding something, he was actually waiting for any further moles to appear. The reason why the first defendant's gun was unbroken was because he was ready to use it quickly if any further moles appeared. It is admitted that the police took the first defendant's guns away from him, but the same was only temporary. Upon Mrs Marston being interviewed by the police, the first defendant's guns were returned to him."
[196]In his witness statement the claimant stated (B/182):
"Over the weekend of 20/21 April 2013 Dennis altered the line of fencing... creating a gap through which horses kept on Wells Farm by my tenants Mr and Mrs Marston might escape into Tanhouse Lane. They therefore rearranged the fencing to close the gap. Early on the morning of Monday, 22 April 2013 Dennis discovered this, re-created the gap and verbally abused Mr and Mrs Marston across the boundary. They immediately left the scene to avoid any confrontation with Dennis, who returned to his house, only to re-emerge with an unbroken shotgun under his arm. At one stage he aimed it down the track. He then stood guard over the gap for about 30 minutes. Swarni was terrified by this and locked herself in our house. I reported the incident to the police. Later in the day they called at Lychcroft and removed all Dennis's firearms ..."
[197]The first defendant did not refer specifically to this allegation in his witness statement.[198]Either the claimant or his wife took a photograph of the first defendant standing on Lychcroft ground with his shot gun that day: it is at page A/58.[199]I reject any allegation or suggestion that the first defendant's conduct that day amounted to a nuisance, or was in any way threatening, or alarming or such as to cause distress. I accept his evidence that he was on the lookout for moles. If (as to which I make no finding) Swarni Williams was frightened by the fact that the first defendant was standing on Lychcroft ground that day with his shot gun in a manner depicted in the photograph, I find that such conduct on his part would not have given her reasonable grounds for such fright. I reject the claimant' assertion that his wife was terrified that day by the first defendant's conduct.[200]Again it is to be noted that although the police were involved, albeit to a limited extent, no or no material or relevant action was taken against the first defendant in connection with matters which occurred that day.[201](8) 13 May 2013 This is an allegation that the first defendant and Ian Johnson "entered Wells Farm and began spraying lines on the drive ..."[202]The first defendant admits that he and Ian Johnson sprayed lines on the drive. Paragraph 71 of the defence alleges that:
"… the claimant misinterpreted the situation. In an attempt to resolve the dispute amicably, Ian Johnson neatly and respectfully used water soluble line marker to show the correct position of the boundary between the ... properties, to confirm that the first defendant's fence is in the correct position. The first defendant and Ian Johnson meant no offence by this act ..."
[203]I accept the first defendant's explanation of what happened that day, and do not find that his conduct was threatening, or alarming or such as to cause distress. Instead I find that the dominant purpose of the first defendant's conduct that day was to depict what he believed to be the relevant boundary lines between Lychcroft and Wells Farm.[204](9) 11 July 2013 This is an allegation that the first defendant:
"approached the claimant's contractor who was preparing to drive for a new surface and instructed him not to touch a strip of land that is well within the boundary of Wells Farm."
[205]Paragraph 72 of the defence alleges:
"… the incident is admitted in as much as the first defendant requested any work to be put on hold until the determination of this dispute…"
The defence then goes on to put the claimant to proof as to the line of the boundary.[206]I accept the first defendant's explanation of what happened that day, and do not find that his conduct was threatening, or alarming or such as to cause distress. Instead I find that the dominant purpose of the first defendant's conduct that day was to request that "any work be put on hold until the determination of this dispute".[207](10) 8 August 2013 The particulars of claim allege that:
"The first defendant walked down the drive with a contractor and instructed the contractor to erect a fence down the middle of the drive. The claimant asked both the first defendant and his contractor to leave. The contractor did so, but the first defendant refused. An exchange took place whereupon Swarni Williams sustained injury to her wrist as a result of the actions of the first defendant. She attended hospital on the advice of the police ..."
[208]Paragraph 73 of the defence alleges:
"It is admitted that the first defendant was in the process of instructing a contractor, Mr Powell of Bromyard, to replace the currently existing fencing which is in need of some repair. As the first defendant was showing Mr Powell the site, the first defendant was attacked by Swarni Williams. During this attack she knocked her arm against the gate. It is denied that this incident or ... injury ... was the fault of the first defendant."
[209]In his witness statement the claimant stated (B/183):
" … at about 6:30 PM he walked down the track again, this time with a contractor. I heard him instructing the contractor to put a new boundary fence down the middle of the track. I asked them both to leave and the contractor did so. Swarni was with me and from the outside of the double Gate 1 tried to close and lock them. Dennis, from the inside double Gate 1 physically prevented her from doing so ... and swung the gate with such force that it took Swarni with it, injuring her wrist and drawing blood. Dennis still refused to leave and only did so after about half an hour. I rang the police who came later in the evening. They advised Swarni to go to hospital for treatment, which she did ..."
[210]I reject the claimant's assertion that the first defendant swung the gate with such force that it "took Swarni with it", and that was the cause of her sustaining injury; I also reject the first defendant's assertion that Swarni Williams attacked him. In my judgement the photograph at page A/63 is indicative of the first defendant and Swarni Williams pushing and shoving around Gate 1. I accept Swarni Williams' evidence that she sustained minor injury as a result (a photograph of which was produced at trial depicting some minor grazing around the wrist), but I find that such injury was the result of her and the first defendant's combined mutual pushing and shoving around Gate 1, rather than the result of any unilateral action on the part of the first defendant. Further and in any event, even if I found that the first defendant caused Swarni Williams to sustain personal injury, I would not have found that such conduct of itself amounted to a nuisance against the claimant and/or harassment of the claimant within the meaning of the Act.[211]Yet again it is to be noted that although the police were involved, albeit to a limited extent, no or no material or relevant action was taken against the first defendant in connection with matters which occurred that day.[212]Analysis In paragraph 22 of his written opening submissions Mr Cannings referred to the decision of the House of Lords in Majrowski v Guy's and St Thomas's NHS Trust [2006] 1RLR 685, in which Lord Nicholls held in paragraph 30 of his speech:
" … courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be gravity which would sustain a criminal liability under section 2."
Mr Cannings also referred to the decision of the Court of Appeal in Sunderland City Council v Conn [2008] 1RLR 324, in which Gage LJ held in paragraph 11 of his judgement as follows:
" … as Baroness Hale put it in her speech in ( Majrowski ) harassment is left deliberately wide. Section 7 … points to elements which are included in harassment, namely alarming or causing distress. Speech is also included as conduct which is capable of constituting harassment. The definition of 'course of conduct' means there must be at least two such incidents of harassment to satisfy the requirements of a course of conduct. It is also in my judgement important to note that a civil claim is only available as a remedy for conduct which amounts to a breach of section 1, and so by section 2 constitutes a criminal offence. The mental element in the offence is conduct which the alleged offender knows, or ought to know, judging by the standards of what the reasonable person would think, amounts to harassment of another."
As Gage LJ held in paragraph 15 of his judgement, the relevant test or dividing line is whether the conduct in question can be said to "cross the boundary into conduct which can be said to be unlawful", or "which although unpleasant, comes well below the line of that which justifies a criminal sanction."[213]Standing back, and looking at the 10 instances of conduct alleged in the particulars of claim, the following are material factors to be borne in mind when considering the allegations about the first defendant's conduct:(1) In every instance when the claimant might have called an independent witness to corroborate an allegation which he had made about the first defendant, he did not do so;(2) In some instances, the claimant's evidence about the first defendant's conduct was exaggerated to a material or significant extent;(3) The more severe or significant complaints about conduct are in fact made against Ian Johnson, rather than against the first defendant; and(4) Most illuminating and instructive is the response of the police; despite being involved on many occasions, save for the one occasion when they arrested both the claimant and the first defendant, on none of the other occasions did they arrest the first defendant, let alone charge him with any offence. In my judgement that is a strong indication that, so far as the police were concerned, the first defendant's conduct repeatedly fell short of what they considered to be unlawful and/or such that it would justify a criminal sanction.[214]I have come to a like conclusion, and do not find that, either when considered individually, or when the various instances of conduct are considered collectively, that the first defendant's conduct passed the threshold identified by Gage LJ, such that it should be considered or classified as being unlawful, and/or was such that it would justify a criminal sanction. Accordingly, I do not find that the first defendant's conduct came within the definition of harassment within the meaning of the 1997 Act.[215]However, I find that there have been instances when the first defendant has been a nuisance; in particular item 4 (as regards trespassing), and item 8 (paint-spraying lines on the track). However, these are minor in nature, and as such would only justify an award of nominal damages, which I assess in the sum of £50. They are not such as would justify the granting of an injunction. Insofar as the allegations involve instances of trespass, I shall consider them below.[216]Trespassing on Wells Farm The claimant makes a general complaint that, for many years from around the early 1990s (see paragraph 12 of the particulars of claim) to the early part of 2013, the first defendant "had taken to treating Wells Farm as if it was part of (the defendants') land". The first defendant's case is that, pursuant to agreements which he had made with Bill and/or Molly Williams during their respective lifetimes, he was permitted to graze his sheep on Wells Farm, and walk the field and/or the general property of Wells Farm with a view to keeping down vermin and/or looking after the hedgerows.[217]In my judgement, the first defendant either did not appreciate, or found it difficult to appreciate, that the position which had obtained pursuant to those informal and oral agreements which he had made with Bill and/or Molly Williams no longer obtained, certainly after the early part of 2013. I find that upon his return to Wells Farm on or about 18 January 2013, the claimant made it clear to the first defendant that, if and insofar as he had previously been permitted by Bill and/or Molly Williams to carry out such activities on Wells Farm, the first defendant was no longer permitted to do so, and he requested the first defendant thereafter to "cease trespassing on Wells Farm" as alleged in paragraph 33 of the particulars of claim.[218]I therefore find that the first defendant was committing acts of trespass as alleged in items 2 & 3 (as regards moving sheep between Gate 1 and Gate 2), item 4 (shouting through the kitchen window), item 8 (paint-spraying on the track) and items 9 & 10 (walking down the track). But those are specific instances of a more general behaviour by the first defendant from the early 1990s to early 2013.[219]These allegations of trespass also concern the parties' respective cases as regards the boundary. In my judgement, in all the circumstances of the case, it is appropriate for me to grant an injunction restraining the first defendant from trespassing on any part of Wells Farm in the future, and I shall make such an order.[220]Tipping of rubble on Lychcroft Paragraph 30 of the particulars of claim alleges that:
"In 2011 the first defendant began tipping soil, builder's rubble and agricultural waste on areas around his lake. In order to facilitate this he removed Gate 2, created a much larger opening to allow access for heavy vehicles and earth moving equipment, and installed a much larger makeshift gate. The surface of the drive between Gate 1 and Gate 2, and Gate 1 itself, was severely damaged by such vehicles and equipment."
Paragraph 55 of the defence states:
"It is denied that any rubble or waste was imported … It is admitted that soil was imported between around 2008/09, and 2011, the said soil being almost exclusively fully licensed laboratory-tested soil. There was a small amount of graded subsoil material imported without the first defendant's knowledge, but this was stopped and remedied immediately upon discovery by the first defendant. To facilitate this, the first defendant removed the fence between Gates 1 & 2, but this was replaced afterwards. It is denied that either gate or the road surface was damaged during this process. No repair works have been carried out to the road surface since long before 2011, and the road surface remains in the same condition now as it was both before and after the importation of soil between around 2008/09 and 2011."
[221]In paragraph 25 of his witness statement, the claimant effectively repeats what is stated in paragraph 30 of the particulars of claim, and then adds (B/177):
"(The first defendant) then arranged for large earth-moving equipment and tipper lorries to access Lychcroft from Tanhouse Lane across Wells Farm land adjoining the shared access, and along the track between Gate 1 and Gate 2. In the course of these works the substantial farm gate, Gate 1, was damaged beyond repair and the surface of the track between Gate 1 and Gate 2 was severely damaged."
[222]The claimant then referred to the photographs at pages A/288-9, which were taken either by himself or his wife on 20 November 2012. They show substantial piles of earth, including some items of rubble, piled up in various conical piles on the field in Lychcroft immediately to the south of, and thus below, the lake.[223]In paragraph 29 of his witness statement the first defendant stated (B/329):
" … The soil I brought onto site was fully licensed and laboratory-tested soil. Most was good quality topsoil with a small amount of coarser material used (as) a subsoil stabilising medium. I used this for landscaping on the south side of the lake i.e. the slope below the lake."
[224]In paragraph 11 of his written opening submissions Mr erduyn submitted that the extent of tipping was "extensive"; in paragraphs 13 and 14 his focus was more on the associated trespass, rather than on in nuisance per se.[225]In paragraph 63 (c) of his written opening submissions Mr Cannings submitted:
"(i) this allegation is set out in one sentence of the particulars of claim, one paragraph of the claimant's witness statement, and one paragraph of Mr Brown's witness statement, with reliance upon one photograph; [2] (ii) … there is nothing in the claimant's evidence which meets the burden and standard of proof in relation to this allegation; (iii) in any event, the first defendant explains that he brought fully licensed laboratory-tested soil onto Lychcroft to landscape the lake surround; and (iv) there has been no wrongdoing by the first defendant in this regard at all."
[226]In his written closing submissions Mr erduyn submitted:
"114. Tipping is not in dispute; the only defence is the asserted quality of the material tipped. Firstly it is contended that tipping is a breach per se , unless of such small as to be de minimis . Secondly, test receipts and the like have not been produced to support the asserted good quality of the material tipped. Thirdly, the first defendant accepted in evidence that at least two lots of rubble were tipped, and that he also had road-building material tipped on the land for future use (incredibly claiming that this would have been applied to the claimant's track). The evidence of the photographs referred to above, and the lumps of material visible on the surface on the site view, demonstrate that tipping has occurred. 115. The claimant is plainly subjectively annoyed by this, but it is also objectively annoying: there will have been the transit of vehicles across Lychcroft (in fact over Wells Farm as well) with its associated noises and smells; there would have been the noise of landscaping or (on the claimant's case) burying the larger items; and there is the visual pollution of a tip when viewed from Wells Farm."
[227]In paragraph 58 of his written closing submissions Mr Cannings focused on the topic of tipping in the context of the issue whether such had caused water to come on to the claimant's land, rather than on the wider issue of whether such constituted an actionable nuisance.[228]I make the following findings of fact:(1) Between 2008/09 and 2012 the first defendant brought substantial amounts of soil onto Lychcroft which contained some rubble. That was for the specific purpose of building up the southern bank of the lake.(2) That building operation was completed by sometime in 2003: see the photograph at page C1/487, (although that does not show its imagery date).(3) While in February 2013 the first defendant had deposited a pile of rubbish in the field on Lychcroft close to Gate 2 (see the photograph at page C1/457), there are now no conical piles of soil on the field in Lychcroft to the south of, and thus below, the lake. However, some relatively small pieces of stone or rubble are still visible on the surface of that field.(4) The claimant did not produce any documentary evidence at trial to indicate that he ever carried out any repairs to the track as a result of the first defendant's activities in this connection. I therefore accept the first defendant's contention that the claimant did not in fact carry out any such repairs and/or that any such repairs were necessary. Nor did the claimant produce any documentary evidence at trial to indicate that he replaced and/or repaired Gate 1.(5) Similarly, the first defendant did not produce any documentary evidence at trial to substantiate his contention that the soil which he brought onto Lychcroft was "laboratory-tested". I therefore make no finding as regards the nature or quality of that soil, save for that set out in subparagraph (1) above.[229]I reject Mr erduyn's submission that "... the only defence is the asserted quality of the material tipped". Mr Cannings' submission is that, in all the circumstances of the case, the matters complained of do not amount to an actionable nuisance. As regards Mr erduyn's submission about "... the transit of vehicles across Lychcroft (and Wells Farm) with its associated noises and smells ...", it is to be noted that the claimant made no reference to such in his witness statement. As a result I find that if there were such, they were of minimal significance, and certainly not of such significance that the claimant thought it necessary to refer to them in his witness statement. Instead I find that the essence of this complaint is one of the visual nature.[230]In paragraph 20-09 of ' Clerk & Lindsell on Torts' Prof Buckley gives examples of the third type of nuisance he considers in chapter 20, namely that of "unduly interfering with his neighbour in the comfortable and convenient enjoyment of his lands". They include creating smells, causing smoke or fumes to pass on to the claimant's property, raising clouds of coal dust, making unreasonable noises or vibration and many other examples. He observes that:
"Dicta in the House of Lords suggest that nuisances of this third kind 'will generally arise from something emanating from the defendant's land', and that the exceptional cases which do not satisfy this requirement 'may go to the limit of the law of nuisance'."
[231]Then in paragraph 20-10 he writes as follows:
"It is therefore always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours. … the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the rights of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society."
[232]In my judgement, the position here is akin to that in cases of demolition and rebuilding, which Prof Buckley considers in paragraph 20-15 where he states:
"Noise and dust caused by demolition and rebuilding will not be actionable if the operation is reasonably carried on, and all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours. In considering what is reasonable, account must be taken of modern methods. The damages awarded will only be in respect of losses caused by the acts of the defendants which are in excess of what is permissible."
[233]So what here? In my judgement, if the first defendant had carried out the process of building up the southern bank of the lake in an organised and efficient manner, taking a reasonable amount of time to do so, than that of itself would not constitute an actionable nuisance.[234]Matters of causing damage to Gate 2 and trespass on Wells Farm land between Gate 1 and Gate 2 are of a different nature. The claimant gave no evidence about the nature of the alleged damage to Gate 1, and accordingly I do not take that allegation into account. Issues of trespass have been dealt with elsewhere in this judgement.[235]The real issue is whether the claimant has established that the first defendant carried out the process of building up the southern bank of the lake in an unreasonable manner, such as to constitute an actionable nuisance. The evidence is that the tipping of soil, including some items of rubble, occurred over a period of some three years or more i.e. from 2008/09 to 2012. Although the claimant did not adduce any evidence to establish how the process should have been carried out, and over what period, in my judgement - looking at the matter in the round - a reasonable period for such works would have been something of the order of 12 months, and even that may be a generous assessment of the time required for such a process. It follows that the first defendant took something of the order of two years longer than was reasonable to carry out the process of building up the southern bank of the lake.[236]The claimant is therefore entitled to an award of damages for nuisance caused by the first defendant tipping soil, including some rubble, on Lychcroft over an unreasonable period. It is therefore helpful to consider the level of damages awarded for inconvenience and discomfort in general building or construction cases. In Eiles v Southwark LBC [2006] EWHC 1411 (TCC) Ramsey J awarded £1,000 for a period of five years to claimants who suffered physical inconvenience and discomfort while living in a house with cracks, and "having the house invaded by various people investigating the cracks" during those five years. In Iggleden v Fairview New Homes [2007] EWHC 1573 (TCC) HHJ Coulson QC awarded £750 per annum to claimants who were living in a house where they could not use the master bedroom on account of defects in building works. Other recent decisions such as Axa insurance UK plc v Cunningham Lindsay [2007] EWHC 3023 (TCC) and Hall v an Der Heiden [2010] EWHC 586 (TCC) indicate that the level of awards of general damages for inconvenience distress and discomfort in such cases remains modest.[237]To my mind, the nature of the inconvenience suffered by the claimant in this case is significantly less serious than that suffered by claimants in the types of cases cited above. I shall therefore award him general damages for nuisance calculated at a rate of £250 per annum, namely £500 in total.[238]It is not alleged that the first defendant intends or threatens to bring any more soil, with or without pieces of rubble, onto Lychcroft in the future. The process of building up the southern bank of the lake has been long completed. In those circumstances, it is not justifiable or appropriate to make any injunction in this regard.[239]Conclusion I shall request counsel to prepare an agreed draft order reflecting the various findings of fact which I have made, and the conclusions which I have reached, in the various parts of this judgement. Such draft order and can then be considered, together with all other consequential matters, when this judgement is formally handed down. DG 30.11.15 Note 1 Counsel drafting the particulars of claim apparently selecting "F" as the next letter in the alphabet having previously referred to points A-B-C-D-E as marked on the plan annexed to the conveyance dated 21 May 1990. [Back] Note 2 in fact there are two photographs: see above [Back]