British Waterways Board v Toor & Anor

British Waterways Board seek a permanent injunction to restrain the defendants from trespassing on their land and they claim damages for the defendants’ trespass.

The defendants deny that they have trespassed. They say that the claimant’s title to the land in question was extinguished by the end of September 2000 by reason of the defendants’ adverse possession of the land from the early months of 1987. The claimant denies that their title has been so extinguished.

The defendants contend that, even if their claim for adverse possession does not succeed, the claimant should not be granted a permanent injunction.

There are also issues concerning the damages which the claimant claims.

I am obliged to Mr Warwick and Mr Harris, counsel for the claimant and defendants respectively, for their assistance with this case.

This case concerns land in Brentford, close to the Grand Union Canal. The claimant now owns a substantial area of land on which are sited old commercial buildings. Many of these buildings are occupied by short-term tenants or licensees. The claimant has applied for planning permission for redevelopment, which they describe as a plan for regeneration of the area. The proposed development comprises about 1,000 houses, buildings for retail and business use, community facilities and services including a doctor’s surgery, a crèche, a health and fitness centre; an existing bus station will be rebuilt. Planning consent has not yet been granted. The matter is to go to appeal, in July of this year.

The defendants own land adjacent to the claimant’s land. They run a motor repair business, M P Motors, from their premises. The defendants suggest that they are the odd man out, and by inference, a nuisance to the claimant in relation to the regeneration plans. This is not the impression I have gained. Mr Pope, speaking on behalf of the claimant, said that the defendants’ business would fit in well with the claimant’s proposal for mixed use, and I see no reason to take a different view.

It is necessary to give a detailed description of the relevant properties and some of the history of their acquisition by the respective parties.

In 1987, the defendants became registered proprietors of 4a East Street, Brentford. They run their motor repair business from this property. To the south western side of these premises is an alleyway. The defendants acquired title to part of the alleyway.

In 1999 the claimant acquired title to two buildings (numbers 2 and 3 Commerce Road) on the other side of the alleyway. The claimant also acquired title to part of the alleyway.

The claimant and defendants do not agree where the common boundary lies within the alleyway. That is not material to this dispute. It is, however, accepted that each has title to part of the alleyway and that there is a common boundary.

The alleyway itself is wide enough for two cars to pass side by side. It runs at 90 degrees from East Street for some distance, then turns 90 degrees to the south west and runs for a similar distance and opens into Commerce Road. At the point where the alleyway turns to the south west, is a building on the far side of the alleyway, which juts out into the alley, reducing its width at that point.

At the rear of 2 and 3 Commerce Road are doorways through which the occupants of those buildings have been able to enjoy access to and egress from the alleyway opposite the defendants building. Fire regulations require these doors to be maintained as part of fire exit routes.

On 5 March 1987, Falcon Pipe Group Ltd transferred to the defendants 4a East Street and part of the alleyway. By deed dated 23 March 1987, between the defendants and Falcon Pipe Group Ltd, Falcon granted to the defendants some limited rights of access to the alleyway.

On 28 August 1997, by deed entered into between Show Presentation Services Ltd (“SPS”) who were owners of 2a East Street, and the defendants, as owners of 4a East Street, the defendants surrendered some rights over the rear part of the alleyway.

In April 1999, SPS transferred numbers 2 and 3 Commerce Road to the claimant under title AGL4087. Paragraph 22 of the charges registrar of title AGL4087 reads as follows:

“The land tinted yellow on the filed plan [i.e. part of the alleyway] is subject to the following rights granted by a deed dated 23 March 1987 made between (1) the Falcon Pipe Group Ltd (grantor) and (2) [the defendants] (grantee):-

The grantor hereby grants to the grantee the right of ingress in the case of emergency only on to over and along the access way … together with the right to enter the said access way from time to time when necessary with or without workmen and apparatus to carry out repairs and maintenance to the [south-western] wall and roof of the property comprised in the above title but not further or otherwise”.

I refer to this as the paragraph 22 rights.

There may be a difference between the parties as to the meaning of paragraph 22. However, there is no issue before this court as to the construction, i.e. the true meaning, of that wording. I make no findings as to that matter. It did, however, become apparent that the defendants are concerned about what they consider to be potential breaches by the claimants of the defendant’s rights to use the alleyway. The claimants acknowledge that the defendants have the rights set out in paragraph 22. The defendants contend that the claimant’s behaviour, actual and threatened, in relation to the defendants’ paragraph 22 rights is relevant to the question whether (if the defendants adverse possession claim fails) the injunction should be made permanent. I deal with that later.

The claimant has leased both 2 and 3 Commerce Road. The leases included grants of rights of way over the front part of the alleyway, but using different wording. Variations in the wording of those grants will have relevance, if at all, to any dispute between the parties as to the scope of the defendants’ paragraph 22 rights but not to the issues in this case.

I heard evidence from the following:

I heard evidence from Mr Toor himself and from Mr Richard Knights, general works manager for the defendants.

The defendants filed a witness statement by Mr Paintal. He was abroad at the time of the trial and did not give evidence. I have read his statement. The evidence which it contains does not add to the evidence given by others. Mr Paintal was not here to be cross-examined. I do not rely on the matters contained in his statement.

Mr Richard Symonds, a solicitor employed by Messrs Addleshaw Goddard the claimant’s solicitors in relation to this matter, did not give evidence. His witness statement deals with the claimant’s title and the events from February 2005 onwards, including the application made by the claimant for an interim injunction in June 2005.

I found all those who gave evidence to be helpful and straight forward in their evidence. It was, however, clear that Mr Toor had a poor recollection of events and at times was incorrect in his recollection, for example as to the dates of some events.

Mr Toor had been in partnership running a motor repair business in Ealing. That partnership was dissolved and Mr Toor decided to acquire 4a East Street and run his motor repair business from there. He took some of the partnership customers with him. He bought 4a East Street from the Falcon Pipe Group, who had used the premises to manufacture pipes for smoking tobacco. The defendants acquired their title in 1987 and began work to the interior of the building to make it suitable for a motor repair business. Initially, Mr Toor worked on his own. He built up the business and began to employ others from 1988.

In January 2004, a fire damaged the building at 4a East Street. The damage was so extensive that complete rebuilding was needed. In January 2004, the claimant offered the defendants alternative premises, on a short-term lease. Nothing came of that proposal.

The defendants applied for planning permission to rebuild the damaged property. Inadvertently, the claimant was not notified of this application.

Work to the defendants’ new building began in October 2004. The defendants demolished the old building and erected a new building in its place. The new building involved deep excavation and construction of a basement. It now appears that the new building has been built on an almost identical footprint to that of the old building. There are issues concerning that, to which I return in due course.

The claimant began to raise concerns about the new building and its design from about the beginning of December 2004. By letter dated 1 December 2004, Mr Vokins wrote to Reddington Ltd, the building contractor engaged by the defendants, complaining about storage of plant without permission on the claimant’s land and alleging that Reddington were trespassing. Vokins asked Reddington immediately to remove all plant and personnel from the claimant’s land. Mr Toor’s evidence is that he did not see that letter. He may well not have done.

Mr North, who assisted the claimant as a party wall surveyor, took some photographs on 15 February 2005. These are of assistance in showing, for example, the detail of those parts of 2 and 3 Commerce Road which are adjacent to the alleyway. I am satisfied that, at all material times, there were, and are still, doors from both 2 and 3 Commerce Road which give on to the alleyway. These are escape routes from 2 and 3 Commerce Road.

Beginning in early March 2005, representatives of the claimant corresponded with the defendants or their representatives with regard to the various concerns which the claimant raised.

Mr Edwards of Vokins wrote to the defendants by letter dated 1 March 2005. Initially, it was said that Mr Toor had not received that letter, then it was said that he did not recall having received it. In giving evidence, he said he had received it. By that letter, Mr Edwards said:

“You are formally advised that … you have been seen to use our client’s land for the purposes of construction without our client’s permission…please note that the nature of the damage to the yard hard standing would suggest that the building of new foundations has created an incursion by you into our client’s property. Subject to further investigation this could result in legal action for damages for the loss of development value as foundation design and construction on our client’s land could be affected…. You should also note that we have been advised that the right of way between your site and the rear of unit 3 Commerce Road is utilised by the occupier of unit 3 as a fire escape and a right of access to their loading door at all times. You are therefore required to remove any plant or temporary buildings that are causing an obstruction to our client or their tenants.”

By letter dated 4 March 2005, the claimant’s solicitors, Messrs Addleshaw Goddard, wrote to Mr Toor, including the following:

“Our client is extremely concerned about the manner in which the new building development you are in the process of procuring on your property is being handled and also its compatibility with the lawful rights which you have been granted…. The following specific points need to be addressed urgently:

1 Our client believes that the footprint and/or rights you appear to be assuming for the servicing of your new building constitute a trespass against its property…

2 the design of the building also appears to be inconsistent with the rights you have. We have been provided with a copy of a drawing …which shows a flank elevation with two roller shutter doors which are designed to give permanent rights over an access way we believe that you have only emergency rights over.

3 Our client believes that neither you nor your advisers have complied with the requirements of applicable party wall and planning legislation in connection with the construction, design and approval of your new building…

Our client requires a considered and detailed response on these matters by no later than 11 March 2005…”

By letter dated 8 March 2005, Messrs Debidins, the defendants’ solicitors, replied to Addleshaw Goddard stating that they were taking preliminary instructions but at that stage refuted any suggestion of trespass by the defendants.

By letter dated 23 March 2005, Addleshaw Goddard wrote to Debidins. They noted that they had had no response to their letter of 4 March. They set out what they described as the current position in relation to each of the claimant’s concerns. They noted that the plans for the defendant’s new building included large doors on the south side and said that they presumed that it was the defendants’ intention to allow vehicular access to the premises via those doors. They noted that such access would pass across the claimant’s land. They said:

“Your client does not have any rights to pass across this land with vehicles. The only rights granted to your client in this regard are rights pedestrian right of access solely for the purpose of carrying out repairs to your client’s premises in the case of an emergency. Access onto our client’s land for any other purpose will constitute a trespass. In order to ensure that no such trespass occurs, our client is constructing a fence on its land in front of these doors which will prevent access to your client’s premises through these doors….”

They went on to say:

“Our client has carried out a detailed site survey of this area. It is clear from this survey that your client’s warehouse is situated on our client’s property. This constitutes an actionable trespass.”

They noted that section 1(2) of the Party Wall Act of 1996 required the defendants to serve a notice and pointed out that no such notice had ever been served on the claimant. This, they contended, was a clear breach of the party wall legislation.

Debidins wrote to Addleshaw Goddard by letter dated 24 March. They indicated that they were obtaining information and instructions and hoped that the claimant would not take any precipitate action in respect of blocking up the access or to erect fences.

A meeting was held on 5 April 2005, attended by Mr Vokins, Mr Pope, Mr North, Mr Stanton and a representative of Addleshaw Goddard, for the claimant, and by Mr Toor, Mr Toor’s solicitor and Mr Menezes (Mr Toor’s structural engineer). At that meeting the claimant raised their concerns about the defendants’ approach to the building work including concerns that the defendant had entered the claimant’s land without permission, that the defendants’ contractors were in breach of health and safety regulations, that it appeared that the building might have been constructed on the claimant’s land and that the defendants had failed to serve party wall act notices. Mr Toor agreed to give the claimant details of his party wall surveyor. (That turned out to be Mr Cox.) It was also agreed that the defendants would apply for a licence to use the claimant’s land for the purposes of building work and, in particular, to erect scaffolding to enable the external cladding to be fixed to the steel frame. The defendants agreed to provide a copy of their health and safety plan; details of their insurance relevant to the building work; evidence that the building had not been constructed on the claimant’s land; confirmation of details of their party wall surveyor; and a method statement showing any intended access onto the claimant’s land to complete the building work.

Addleshaw Goddard wrote to Debidins by letter dated 6 April, referring to the meeting the previous day. They recorded the agreed course of action. They noted that Mr Cox would assist with party wall matters and would make a joint inspection with Mr North. They noted that, prior to that joint inspection, the defendants were to provide plans showing the position of the building prior to the fire and evidence as to the size of the new building. They noted that the defendants had accepted that they would require permission from the claimant to enter onto the claimant’s land to erect scaffolding to complete the cladding work. They recorded that the defendants would make a formal application for a licence to use the claimant’s land for these purposes and that the claimant would consider such request. In that letter, Addleshaw Goddard listed the documentation which they considered should be provided in support of the application for that licence and made it clear that the documentation would have to be provided before the claimant considered the defendants application for a licence to use the claimant’s land. They noted that the defendants had accepted that they had been storing materials on the claimant’s land without consent.

In that letter, Addleshaw Goddard said this:

“Our client raised concerns as to the fact that your client appeared to be under the impression it has a right of access across part of our client’s land with vehicles, in order to access the large door in the south side of your client’s building. As was made clear in the meeting, no such right exists. We provided to you copies of two deeds of release in respect of various rights of way and it was agreed that you would investigate the position and set out your client’s position in this regard. We will address any particular queries you have on receipt of such a report.”

In fact, the defendants did not respond to that suggestion.

Addleshaw Goddard also noted as follows:

“Finally, your clients agreed not to enter onto our client’s premises or to carry out any further works to the building (save for agreed draining works and works to the concrete at the front of your building) until these matters are addressed.”

By letter dated 8 April 2005, Mr Toor wrote to the Borough Planning Officer regarding the claimant’s proposed development at Commerce Road, complaining that he had not been notified of the proposed development pursuant to section 66 of the Town and Country Planning Act 1990 and noting that he would not permit ISIS to develop on his property.

By letter dated 8 April 2005, Debidins wrote to Addleshaw Goddard, making reference to the meeting on the 5 April. Debidins did not answer the detailed points which Addleshaw Goddard had made in their letter of 6 April. Instead, they complained that the claimant had not been able to substantiate its claim that the defendants’ new building encroached on the claimant’s land. Debidins asserted that there had been no encroachment. In that letter, Debidins said:

“It is our client’s contention that he has acquired prescriptive title to [part of] the alleyway this piece of land having been used uninterrupted and without let or hindrance by our client since 1986.”

This was the first indication that the defendants considered that they had acquired title to the claimant’s part of the alleyway.

In mid April 2005, Mr Cox, for the defendants, and Mr North, for the claimant, met on site to consider party wall matters. Mr North wrote to Mr Cox by letter dated 15 April, making detailed reference to various drawings. He recorded that when he and Mr Cox had made measurements on site, they found that the defendants had in fact constructed the new building to a similar footprint to that of the old building. Mr North said:

“We are unable to confirm that the foundations below ground do not project any further than the line of the steel frame above. However, this is unlikely. We agreed that your clients would require access onto my client’s land to the north and south to complete their cladding works. To this end, you are still awaiting the information I requested from your clients when I met them on 5 April 2005.”

Mr North went on to summarise the outstanding information and added

“Until such time as I have received the above information I am unable to advise my clients further on your clients’ requirements for access onto my clients land.”

By letter dated 15 April 2005, Addleshaw Goddard wrote to Debidins referring to a telephone conversation between them. Addleshaw Goddard said: “We confirm our agreement that our clients will undertake to each other in the terms set out in this letter. The undertakings will continue until terminated by two working days’ written notice to be given to our firms on behalf of our clients…” The letter set out the text of the undertakings suggested. However, the defendants did not respond substantively to that.

By letter dated 27 April 2005, Mr Vokins wrote to Mr Toor referring to a meeting held between Mr Vokins, Mr Toor and Mr Pope the previous day. The letter recorded matters discussed. Mr Vokins noted that the prospect that the claimant would grant the defendants any additional rights over the alleyway (such as the vehicular access you are seeking) were “extremely remote, due to their proposed adjoining residential development, which incorporates amenity space.” Mr Vokins noted in that letter that it was unfortunate that the defendants had designed their building with two loading doors requiring access over the claimant’s land. He noted that neither he nor the claimant had been notified by the defendants or their advisers when they designed the building and applied for planning permission that such doors would be incorporated. He commented that that had been a shame, as they could have commented at that early stage, and said:

“My client strongly recommends that you reconsider your building design, so that your business can operate with vehicular access from the front of the building only, whilst you are still at the frame stage.”

Mr Vokins went on to say:

“It was agreed that you would need my client’s agreement to enter their land to erect the cladding to the sides of your building. You understand that my client has absolutely no legal obligation whatsoever to provide this access to you or your contractors. My client confirmed however that they would agree to this access, provided that all the necessary documentation was supplied by you, including the service of party wall notices to Anstey Horne (now long over due – please action without further delay) a copy of the health and safety plan, method statements etc…. My client is seeking to be a good neighbour and is disappointed that these negative issues have arisen. It is hoped that you will redesign your internal layout, whilst at shell stage, so that you are able to function with all vehicular access from the front of the unit, without adverse impact or cost.”

In fact, the defendants did not redesign their building.

By letter dated 28 April 2005, Debidins wrote to Addleshaw Goddard. They challenged the claimant’s account of the meeting on 26 April. They suggested that the claimant was bullying the defendants. They went on to say: “We repeat that the alleyway which appears to be the bone of contention is most definitely in dispute, both as to ownership and usage, and we respectively (sic) suggest that it would be as well for your client to “let the dust settle” for the moment without taking any precipitate or unjustified action, either in relation to fencing, gating or the like. In that regard we refer you again to the penultimate of our letter to you of 28 April 2005 as to the current situation.”

Addleshaw Goddard replied by letter dated 29 April 2005. They said that the claimant’s aim was to try to reach an appropriate agreement on issues whilst respecting each party’s property rights. They said:

“For the avoidance of doubt, however, our client has asked us again to remind you that the strip of land in front of which the gate is to be erected is owned by our client. It is registered in the name of our client and the only rights that have been granted to your client are those emergency rights of access for the purposes of repair.”

They went on to reiterate the claimant’s position, namely that there was no basis upon which the defendants could lay any claim to any further rights over the land and that the defendants had trespassed. They went on to say that the claimant was prepared to grant the defendant a licence to go on to the claimant’s land to finish building “on the condition that [the defendants] resolve all outstanding matters relating to party wall issues and health and safety issues that are set out both in our letter of 6 April 2005 and Mr Vokins letter of 27 April 2005”. They noted that Mr Cox had not yet supplied necessary information to Anstey Horne.

By letter dated 4 May to Debidins, Addleshaw Goddard reminded the defendants of the information still outstanding and which it had been agreed at the meeting on 5 April the defendants provide. They went on to refer to the defendants’ belief that they had unrestricted rights over the alleyway. They referred to the paragraph 22 rights granted in the 23 March 1987 deed noting that that deed had granted to the defendants “emergency rights of access only over the strip for the purposes of carrying out repairs to the building.” In fact, that, like Addleshaw Goddard’s summary in their letter dated 29 April, is an inaccurate summary of the paragraph 22 rights.

Addleshaw Goddard chased Debidins by letter dated 12 May 2005 for a response to their 4 May 2005 letter. However, Debidins did not respond and that is how matters were left as between solicitors.

On 13 May 2005, Mr Cox sent Mr North a “retrospective” party wall act notice. By letter dated 19 May, Mr North replied, formally dissenting to that notice. He pointed out that matters would now have to be formalised by way of an award and asked Mr Cox for a draft and his nomination for a Third Surveyor. In that letter, Mr North noted that Mr Menezes’ sketch did not demonstrate that the temporary works for the foundations for the new building had not encroached on the claimant’s land. Mr North also referred to the defendants’ proposals for completing the cladding, suggesting that the defendants would probably need about two weeks for this work to be carried out.

By letter dated 7 June 2005, Mr Cox sent Mr North a draft award. He went on to say:

“My clients acknowledge that they have trespassed, but they stated to me that they were given consent by British Waterways' local representative nevertheless, we shall include in the access licence for further compensation to allow for the unauthorised previous use.”

(It is not clear how the defendants suggest that such consent was given by the British Waterways representative as is suggested in that letter.) By letter dated 9 June, Mr North wrote to Mr Cox agreeing to Mr Cox’s suggestion as to a Third Surveyor. He noted that he was awaiting information. On 10 June, Mr Cox asked for a draft licence to permit the defendants access. Mr North replied on 13 June to say that the access licence would be drafted by solicitors.

On 21 June 2005, Mr Vokins visited the site. He saw that contractors had begun to erect cladding to the steel frame at the side of the new building adjoining the alleyway. He returned at 05.30 on 22 June and took photographs. He noted that there was a scissor lift in the alleyway. At lunchtime that day, he placed a padlock and chain on the gate at the entrance to the alleyway. One of the contractors challenged him. More of the contractors then arrived. Mr Richard Knights instructed the contractors to remove the lock and chain with an angle grinder. The claimant then arranged for a maintenance contractor to weld the gates shut. Meanwhile, matters were getting out of hand. Mr Vokins called the police who arrived at about 15.00 hours. The contractors removed the scissor lift and left. The police then left. Mr Vokins returned at 4.30. The defendants’ contractors had gone back into the alleyway and were continuing to erect cladding.

Meanwhile, the claimant’s legal team had attended at court seeking an interim injunction to restrain the defendants from trespassing on their land. The injunction was granted by Etherton J during the afternoon of 22 June. The sealed order was faxed to Mr Vokins and the contractors were informed that the order had been made. By the time the order was served in the late afternoon of 22 June 2005, the defendants had completed almost all of the cladding of the wall adjacent to the alleyway.

Since then, the defendants have completed the cladding. Photographs taken during the trial showed that the cladding panels fixed after the grant of the injunction had probably been fixed from the interior of the building, as one can see the points, not the heads, of the fixing screws on the exterior of the building.

By order dated 29 June 2005, Etherton J continued the injunction. On 14 July 2005, by consent, the injunction was continued.

In October 2005, the defendants began to use the new building for their motor repair business.

The defendants’ case is that since the early months of 1987 they have used the alleyway to park vehicles as an integral part of their business operations at 4a East Street and have adversely possessed for a period of in excess of 12 years so that any title of the claimant to the alleyway was extinguished by the end of September 2000. By the term “adversely possessed” the defendants mean that they have used and dealt with the land in question as an occupying owner might have been expected to do and that no one else has done so and with an intention to exclude the world at large including the paper owner and to do all this for the defendants’ own benefit.

The defendants served further particulars of their claim, saying this: “The defendants have since acquiring their premises operated their business on a full time basis, generally six but often seven days a week and generally during and between the hours of 06.00 and 21.00. They employ security guards on a 24-hour basis who remain on the premises every day and night. During all of the period in question the defendants have caused vehicles to have been parked in all parts of the alleyway not only during working hours but overnight and over weekend periods for storage. By way of corroboration, the defendants can aver that on every occasion that an aerial photographic survey was carried out and photograph taken of the locality it has been possible to see vehicles of various descriptions and sizes parked in the alleyway, these being vehicles in the possession and control of the defendants for the above mentioned purposes of their business. At this moment in time the defendants can not of course indicate the identity or ownership of the vehicles which were so parked, stored and being repaired by them in the alleyway, their records having been destroyed in the course of the fire…”.

I have been referred to the decision of the House of Lords and of the European Court of Human Rights in JA Pye (Oxford) Ltd v Graham [2003] 1AC 419. Mr Harris explained that it is accepted on behalf of the defendants that the decision of the European Court in Pye coupled with the decision in Beaulane v Palmer [2005] 3 WLR 554 puts the last date by which adverse possession of 12 years’ duration must be completed as 1 October 2000. That concession was made strictly subject to any prospective appeal by the United Kingdom Government to the Grand Chamber and its result if so made, and the defendants reserve the right to argue, should this matter go further, that the limitation period ends only on the date of coming into force of the Land Registration Act 2002 (namely in October 2003) and not 2 October 2000.

The law is summarised in the headnote to the report of the judgment in Pye, taken from the speech of Lord Browne-Wilkinson:

“To establish factual possession the squatter had to show absence of the paper owner’s consent, a single and exclusive possession and such acts as demonstrated that in the circumstances, in particular the nature of the land and the way it was commonly used, he had dealt with it as an occupying owner might normally be expected to do and that no other person had done so; that the requisite intention was, not to own or acquire ownership, but to possess and on one’s own behalf in one’s own name to exclude the world at large, including the paper title owner, so far as was reasonably possible.”

I have also been taken to the decisions in the following cases.

I deal first with the question whether the defendants have proved factual possession and then deal with the question of intention to possess.

In giving his evidence, Mr Toor explained that, in 1987 when he bought 4a East Street, there was an extension to the rear of Unit 2 Commerce Road, which protruded into the alleyway. He said that that extension had been removed in 1997. He described it as occupying most of the width of the alleyway, leaving a gap of about six foot to walk through. There was, he says, no access to that extension from the alleyway itself, only from the inside of 2 Commerce Road. The existence of such an extension during that period is supported by the aerial photographs of the area.

Mr Warwick submitted that, in those circumstances, the defendants cannot claim for adverse possession of that part of the land occupied by the extension at the rear of 2 Commerce Road, as the defendants could not, themselves, have occupied it until (at the very earliest) 1997 i.e. too late to acquire title by adverse possession. Mr Harris did not dissent from or challenge that submission. It seems to me that Mr Warwick’s submission must be right, with the consequence that we are concerned only with the question of adverse possession of that part of the alleyway between the claimant’s and the defendants’ respective land not occupied by the extension.

The defendants rely on a number of matters. I deal with each. The first is lack of consent by the paper owner. Mr Parnell explained that he had seen cars parked in the alleyway. He had had several cordial meetings with Mr Toor. He had told Mr Toor that the claimant wanted the cars moved eventually, as they would be letting 2 and 3 Commerce Road, and Mr Toor had agreed he would move the cars.

The defendants rely on the use they made of the alleyway. They produced aerial photographs of the area taken in 1987 – 1990, 1992, 1994, 1997, 1999 and 2000. These photographs do, indeed, show intensive parking of cars in the narrow alleyway. Ground level photographs taken in, for example, 2002 show that cars were parked in the alleyway. The evidence of a number of witnesses – Mr Parnell, Mr Vokins, Mr Toor and Mr Knights, indicates that the defendants left cars parked in the alleyway. I accept that the defendants did park cars in the front part of the alleyway until the extension to the rear of 2 Commerce Road was removed in 1997 and in the whole of the alleyway between the defendant’s buildings and the claimant’s buildings once the extension was removed. However, the defendants have not persuaded me, on balance of probabilities, that they, and they alone, parked cars in the alleyway from early 1987. First, as Mr Toor explained, for the first year after he had acquired the premises he was working there alone. He was joined by others abut a year later, that is in about March 1988. It is likely that he was building up his business over a period of time. It must have taken him time to increase the volume of business – as is evident from the fact that it was a year before he engaged others. There may well not have been any need to park cars in the alleyway in, at the least, the first year. The defendants have kept no records to assist with this question. It is not, for example, suggested that such records existed but were destroyed in the fire. To the contrary, Mr Toor simply confirmed that he had not maintained records.

In 1987, the commercial units in the area were occupied and in use. Cars were parked in many locations in the area for example in East Street. It is only in recent years that the area has become run down and less occupied, as the claimant moves forward with its regeneration plans. Until recently, units 2 and 3 have been occupied under lease or licence. It is quite possible that some of those using those buildings parked their cars in the alleyway. Mr Toor accepted that it was possible that they had indeed done so.

I am not persuaded that the defendants were the only people to be parking cars in the alleyway.

Mr Harris points out that there is no evidence of any complaint by others in the area that the alley was clogged or obstructed. That is so, but such absence does not assist me.

Mr Harris submits that the relevant section of the alleyway was in effect a cul de sac because of the presence of part of a building at the 90 degree bend. Although the width of the alleyway is narrowed at that point, it must nevertheless be possible to walk through and the alleyway does not end at the nether end. It continues into Commerce Road. One can see from photographs that parking of cars in the front part of the alleyway would prevent other vehicles driving along it, but would not prevent pedestrians walking through.

In my judgment the defendants have not proved factual possession. That is, they have not proved that they had exclusive possession of the front part of the alleyway by parking cars there from the early months of 1987 until the end of September 2000.

I next deal with the question of intention. I am not persuaded that the defendants had the intention to possess the front part of the alleyway. Mr Toor appears to have held the mistaken belief that he had unlimited rights of way over the alleyway. That may well have led him to believe that he had the right to park cars there. A belief that he had extensive rights of way over the land is inconsistent with an intention to possess the land.

Furthermore, Mr Toor readily accepted that he did not intend to deny the occupants of units 2 and 3 Commerce Road the right to use the rear access doors on to the alleyway. He did not intend to block those rear exits.

The defendants have not persuaded me on balance that they intended to possess the relevant parts of the alleyway or that any dispossession of the claimant occurred.

As I have explained, any parking by the defendants is, in my judgment, unlikely to have begun before about March 1988. If the defendants had been able to prove possession and an intention to possess, the relevant period would therefore have been 12 years from 1 March 1988, ie until the end of February 2000. There is no evidence that the defendants’ use of the alleyway for parking varied in pattern or intensity. In the light of the reservation expressed by Mr Harris, I have considered whether there was any difference in use of the alleyway after 1 October 2000 and up to October 2003. The defendants have adduced no evidence to indicate any difference in the pattern or intensity of use between those dates. There is no evidence to indicate any difference in their intentions as to possession of the alleyway during that later period. It is possible that others were parking cars during that later period. Accordingly, even if the end date is October 2003 rather than October 2000, my conclusion would be no different.

As I have described, the injunction was obtained ex parte on 22 June 2005. Mr Warwick made the application on behalf of the claimant. He does not, now, recall whether he prepared a skeleton for the hearing (though this would generally be expected). The claimant’s solicitors prepared a note of the hearing I shall return to that shortly.

On 16 November 2005, Patten J ordered that the interim injunction should continue and that a speedy trial be held principally (it would seem) so that the defendants’ adverse possession claim could be tried. The order provided as follows: “Until the conclusion of the trial or further order of this court the defendants must not whether by their servants, agents, workmen or any other person enter onto or attempt to enter on to (with or without machinery or equipment) all or any part of the claimant’s land … SAVE THAT the defendants may continue to exercise their right of entry on to part of the claimant’s land, the extent of which right is identified in entry 22 to the charges register in title AGL4087 AND PROVIDED THAT the defendants may access the claimant’s said land between the hours 9 am and 5 pm Monday to Friday, solely for the purpose of erecting guttering on both sides of the defendants’ new building such access to be on two working days’ written notice to the claimant, which notice shall include information as to the length of time that the work will take, a method statement as to the work and a risk assessment.”

I am told that the wording which permits the defendants to have access in order to erect guttering was added at the defendants’ request at the hearing in November. At trial, Mr Toor said that the guttering to the new building had not yet been fitted; no steps have yet been taken by his architect to deal with guttering. I accept Mr Warwick’s submission that, if the injunction is to be continued, there is no present indication that the defendants need express provision for access to erect guttering. Mr Warwick indicated that the claimants would be willing to discuss with the defendants any practical arrangements which might need to be made.

The claimant wishes the injunction to be made permanent. The defendants contend that it should be discharged.

The claimant’s case is that without the injunction, the defendants will not act co-operatively with the claimant. There is a serious risk that the defendants will interfere with the emergency escape routes on to the alleyway. Without the injunction, there is a risk of disruption to the claimant’s own development. The defendants do not come to this hearing with clean hands: they have breached the injunction. The defendants have breached party wall legislation. Unless the injunction is continued, there is a risk of further breaches of the peace. As Mr Toor himself confirmed, he has access to his building at the front.

The defendants’ case is that the building works undertaken by them did not constitute trespass by the builder, by reason of the defendants’ paragraph 22 rights. If there had been trespass by the contractor, that was trespass by an independent contractor for which they are not responsible. There is no need for an injunction if damages would suffice and, here, it is not clear that damages would not suffice. To grant the injunction would lead to uncertainty, and perhaps absurdity, in practice given the defendants’ paragraph 22 rights. There is a difference between the parties with respect to the meaning of the paragraph 22 rights. The claimant is guilty of laches or deliberate manipulation. The claimant was unconcerned by the defendants’ lack of plans and absence of party wall notices until the building work had manifestly been in progress for some months and the defendants had spent a great deal of money on it. The claimant has failed to co-operate with the defendants. They waited until the building was only days from completion before applying for the injunction. The claimant has mis-stated the defendants’ paragraph 22 rights and made false allegations as to the defendants’ behaviour. The claimant failed to reveal to Etherton J the full extent of the defendants’ paragraph 22 rights. The scope of the defendants’ rights over the alleyway are not clear.

I have considered all these points carefully. In my judgment, the claimant’s behaviour towards the defendants has generally been one of co-operation and that of an organisation trying to be a good neighbour. For example, Mr Parnell’s approach to the defendants with regard to the parking of cars in the alleyway was not officious and revealed a tolerant approach.

Analysis of the correspondence between December 2004 and early summer 2005 reveals a picture contrary to that which the defendants seek to paint. The claimant had not been sent details of the defendants proposed new building. I reject the suggestion that the claimants should have gone to the local authority to look at plans. In any event, these may not have revealed the details which caused the claimant concern.

The defendants should have complied with their obligations under the party wall legislation and should have served the appropriate notices. They failed to do so at the appropriate time. Even when prompted by the claimant, the defendants still dragged their feet.

In my judgment, the claimant raised legitimate concerns about the defendants’ proposals to erect a building with two large doors on to the alleyway. The claimant raised these concerns with the defendants at an early stage, bearing in mind that they had not been given details of the defendants’ building plans. The claimant drew their concerns to the defendants’ attention at the stage when the steel frame was being erected. They did so at a time when the defendants might have been able to amend the design to relocate the loading doors. The defendants failed to heed that warning.

The claimant raised understandable concerns about the footprint of the defendants building and whether it might trespass on the claimant’s land. Even though it now appears that there is no trespass, that was not clear during the construction. Mr North’s evidence makes it clear that, even though the completed foundations probably did not encroach onto the claimant’s land (though that cannot be established conclusively without trial holes) it may well be that the temporary works had so encroached.

The claimant, reasonably in my judgment, asked the defendants for information about their construction plans before granting the defendants a licence to use their land to undertake work. The claimant made it quite clear what information they sought. They reiterated their request for information on a number of occasions. The defendants did not provide the information requested. It is inappropriate for the defendants to criticise the claimant for their failure to co-operate when the defendants, themselves, did little and certainly did not provide the information which the claimant had requested before agreeing to grant a licence to the defendants to use their land. The parties had agreed a way forward on 5 April 2005 and the defendants knew what information the claimant was seeking. However, the defendants simply went ahead and asked their contractor to fit the cladding to the building adjacent to the alleyway without first obtaining the claimant’s consent. It is clear that the defendants did so because the contractor was threatening not to complete the work.

The defendants criticise the claimant’s behaviour. That criticism is misplaced. It is the defendants’ behaviour which is to be criticised.

Mr Harris suggests that the defendants should not be considered responsible for the contractor’s behaviour on 22 June when the altercation took place on site. I disagree. It is clear that Mr Knights, employed by the defendants, was there. He did not discourage the contractors from continuing their work.

I accept the criticisms made by the defendants as to the way in which the claimants representatives expressed the defendants rights under paragraph 22. In correspondence, Addleshaw Goddard and Mr Vokins stated these rights incorrectly. In exercising my discretion whether or not to grant a permanent injunction, I take that into account.

I have been referred to the judgment of the Court of Appeal in Patel & Ors v WH Smith (Eziot) Ltd [1987] 1 WLR 853. That was a case involving the parking of vehicles. The court held that a land owner was prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. In his judgment, Balcombe LJ, at page 858F, refers to the judgment of Stamp J in Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411:

“It is in my judgment well established that it is no answer to a claim for an injunction to restrain a trespass that the trespass does no harm to the plaintiff. Indeed, the very fact that no harm is done is a reason for rather than against the granting of an injunction; for if there is no damage done the damage recovered in the action will be nominal and if the injunction is refused the result will be no more nor less than a licence to continue the tort of trespass in return for a nominal payment.”

In my judgment, there are no exceptional circumstances here which would justify the court in refusing to grant a permanent injunction in circumstances where the defendants have trespassed on the claimant’s land. To the contrary, the claimant is entitled to an injunction to give it the protection which any landowner is normally entitled to have to help protect his interest in land, and in particular, here, the claimant needs the injunction to restrain the defendants in the future. The defendants’ behaviour hitherto has been such that the claimant’s concerns as to the defendants’ future conduct are understandable.

The claimant has an unchallengeable right to ownership of part of the alleyway. I accept Mr Warwick’s submission that the court will normally step in and grant an injunction to protect an owner of land. This is clear from Patel. It is not, as Mr Harris has submitted, a question where the damages would suffice. The claimant has rights. The defendants have not recognised these. Indeed, the defendants have sought (unsuccessfully) to deny the claimant’s rights.

I take into account the importance to the claimant of having certainty which the grant of a permanent injunction would bring. They plan to site a public health centre adjacent to the defendants land. I accept their submission that it will be helpful to them to have the protection of a permanent injunction.

It seems to me that the defendants’ concerns centre largely on the questions which may arise as to the scope of their paragraph 22 rights. That is not an issue in this case. As Mr Warwick has pointed out, following the judgment of Jacob LJ in Mortimer v Bailey [2004] EWCA CIV 1514: “Where there is doubt as to whether a restrictive covenant applies or whether consent under restrictive covenant is being unreasonably withheld, the prudent party will get the matter sorted out before starting to build, as could have been done in this case. If he takes a chance, it will require very strong circumstances where, if the chance having been taken and lost, an injunction will be withheld.”

A party who is in doubt as to what his rights are, should get on with the task of sorting those matters. It seems to me it is in the interests of both parties to identify quickly any difficulties which arise with regard to the paragraph 22 rights and to consider how these might be resolved amicably and in a cost-effective way.

Mr Harris suggests that the claimant should offer undertakings with regard to the proposal to build over the alleyway. It became apparent during the evidence that the claimant’s plans, lodged for the purpose of obtaining planning consent, involved building over the alleyway, at first floor level. This, they say, will leave access to the alleyway. It appears that the claimant is intending to support the first floor of that building by means of columns in the alleyway itself. The columns may be secured to a plinth in the surface of the alleyway, alternatively, the columns may be secured below ground level. Either way, the defendants are clearly concerned that the proposed building will affect their rights. Planning consent has not yet been granted and a public inquiry is due to be held on 4 July 2006. It is not necessary, or indeed appropriate, for me to require the claimant to give undertakings in these proceedings. The claimant is aware of the defendants’ paragraph 22 rights. If any difficulties or issues arise as regards the defendants’ rights in consequence of the claimant’s building plans, those difficulties or issues will have to be resolved elsewhere. They are not, in my judgment, a reason to deny the claimants request for a permanent injunction. They do not , in my judgment, fall within the category of exceptional circumstances envisaged in Patel.

The defendants contend that the claimant failed to make full disclosure to Etherton J when making their application for an interim injunction; they failed properly to explain to the learned judge the scope of the defendants’ paragraph 22 rights. Mr Harris submits that the claimant was in breach of its duties pursuant to CPR Part 25 3.5. He contends that the learned judge was not informed clearly of the existence and scope of the defendants’ paragraph 22 rights. The claimant’s solicitors note of the hearing on 22 June make no reference to the paragraph 22 rights. The note records that correspondence was shown to the learned judge (though not in detail which correspondence was shown). However, as we have seen, the claimant’s solicitors and Mr Vokins in their letters failed to describe accurately the scope of the defendants’ rights.

The court takes seriously breach by a party to make full and frank disclosure when applying for relief ex parte. The note of the hearing does not refer to the paragraph 22 rights. I cannot be confident, therefore, that these were properly drawn to the learned judge’s attention, and for that the claimant deserves to be criticised. It does not, however, seem to me that this failure is so serious as to lead me to conclude that, even though the merits indicate that the injunction should be made permanent, that relief should nevertheless be denied to the claimant.

The claimant does not appear to pursue reliance on allegations of breach of the injunction. For the sake of completeness I add that it is not clear that there has been breach by, for example, the fixing of cladding after the injunction: as I have indicated, the photographs show that this fixing had probably been carried out from the inside not the outside.

I balance all of the matters which the parties have raised. In my judgment, it is appropriate for the court to exercise its discretion in favour of the claimant and grant a permanent injunction. The wording should be in the same form as that ordered by Patten J in November 2005, save that the wording permitting the defendants an express right to carry out guttering work should be excluded. I am not persuaded that, to grant such a permanent injunction, will cause difficulty or confusion between the parties in the future.

The claimant claims the cost it says it has incurred in relation to obtaining the injunction and work following the grant of the injunction. The claimant claims these sums as damages. These are fees charged by Messrs Vokins, amounting to £18,252.50, and Anstey Horne’s fees, relating to infringement of the party wall legislation and trespass, amounting to £9,880. These fees are referred to by Mr Pope in his witness statement. There was no real challenge to the claimant’s claims for these sums. However, it became apparent during submissions and on my closer inspection of the fee notes or invoices that there are difficulties and some confusion with regard to these fees. Questions arose as to the extent to which these sums should be considered as damages, and thus appropriately to be the subject of an award of damages, or the extent to which they amount to costs in the litigation and therefore fall to be considered when the question of costs is dealt with. Neither Mr Warwick nor Mr Harris had prepared detailed submissions with respect to this aspect of the matter.

At the hearing, I expressed concern that, as appears from the face of the invoices/fee notes, some of the work claimed for is quite clearly in relation to the court proceedings; in other cases, it is not clear precisely what work has been undertaken by Messrs Vokins or Anstey Horne. It occurs to me that work by Anstey Horne in relation to party wall matters would, no doubt, have had to be carried out in any event. Furthermore, this dispute was not about breach of party wall legislation; questions of breach of the legislation were merely incidental to the issues in this case. It is, therefore, not clear why the claimant should recover as damages any cost they have incurred in relation to compliance with party wall legislation. (It is not clear from Anstey Horne’s invoice which work claimed for relates to compliance with party wall legislation and which work is relevant to the grant of the injunction.)

Mr Warwick submitted that, as the defendants had not challenged this, such arguments should not be available to them. I reject that submission. It is, in my judgment, appropriate for a court to look critically at such matters, at any stage of the proceedings.

I indicated to the parties at the end of the hearing that it was of course open to them to reach agreement as to how the question of damages should be dealt with, failing which I would do my best on the available evidence and on the face of the documents to make an assessment of the damages to which the claimant should be entitled. If I have not heard from the parties before the date on which this judgment is to be handed down that agreement has been reached, I shall, on the handing down of the judgment, give judgment on the level of damages to which the claimant is entitled.