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Trespass of property: Whether a trespass of property was substantial enough to warrant an award of damages

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In a case where there was an acknowledged interference with property, was the interference substantial enough to require an injunction and/or a substantial award of damages?

The background

In Clochfaen Estate Ltd v Bryn Blaen Wind Farm Ltd & Others [2019], the claimant company Clochfaen took a lease in 2011 which granted to Clochfaen shooting, sporting and fishing rights over around 4,000 acres of land in mid-Wales. The rights extended over 92 acres of farmland occupied by two of the defendants (“the Howells”).

Bryn Blaen, the first defendant, obtained planning permission in 2016 to construct a small wind farm comprising six turbines on land to the north of the 92-acre servient land. Access roads and other associated works were to be constructed on the Howells’ servient land. Works were completed in 2018 and the servient land was restored. A lease of the access road was granted to Bryn Blaen by the Howells.

Clochfaen had not exercised its sporting rights over the Howells’ land for over 60 years, but nevertheless brought a claim that the development of the Howells’ land would substantially interfere with its ability to do so. Clochfaen claimed injunctions, damages and a declaration. The defendants argued that the interference was not substantial to warrant such an award.

The decision

The High Court found that a declaration and nominal damages were sufficient. There was no substantial interference of the claimant’s rights, and there was not likely to be so in the future, therefore an injunction was not appropriate.

Although the construction of the wind farm was found to have been a substantial interference, that work had ceased and Clochfaen was unable to show that, long-term, there had been an interference with the reasonable exercise of its rights, and there was no fundamental change in the character of the Howells’ property.

Advice and action for landlords

The Clochfaen case provides useful support for those claiming damages and injunctions against trespass or interference of rights to be able to demonstrate fully that there has been a substantial interference sufficient to warrant an order in such terms.

The claimant could not show that its rights were exercised and, although there had been substantial interference during construction, that interference had now come to an end and the land returned to its previous use. As a result, the outcome of costly legal action was merely nominal damages.

The High Court found that there was no substantial and lasting interference of the claimant’s rights and a declaration and nominal damages were therefore sufficient.

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