The defendants installed an extractor fan on their property which protruded through the side of the wall into the claimant’s rear garden. The claimant commenced legal proceedings arguing that the extractor fan trespassed into her garden and that it also constituted a nuisance. The claimant sought an injunction requiring the defendants to remove or reposition the extractor fan as well as damages.
The defendants contested these claims on a number of grounds including that the claimant’s father helped to install the fan and that he gave his consent to their use on two occasions.
The judge at first instance dismissed all the claims for trespass and nuisance.
The claimant appealed on the basis that the judge at first instance had misdirected himself into believing that in order to establish a trespass the claimant had to prove substantial interference with the use of the land and that the trespass would have to interfere with any normal activity in the garden.
Reference
The court held that if a defendant interferes with a claimant’s airspace, this would amount to a trespass unless it was at such great height that it did not interfere with the claimant’s airspace. In the present case the overhanging by the defendant’s was approximately 4.5 m above ground and so amounted to trespass.
The court further held that there was nothing in the legal authorities to support the approach of the judge at first instance that a trespass only occurs if the offending activity interferes with any normal activity in the garden.
*Full case details
22 June 2005, High Court, QBD, Mr. Justice Silber [2005] EWHC 1305 (QB)
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Postscript
This case is interesting because it illustrates strict application by the courts of the legal rules relating to trespass. Nonetheless in light of the fact that the fan projected into the claimant’s garden by 750 mm and was 4.5 m above ground one may be forgiven for sympathising with the judge at first instance, whose decision perhaps appears to be one of common sense.
