Factual and Procedural Background
The Plaintiff is the freehold owner of a property located at 194-196 Towngate, Wyke, Bradford (the Plaintiff’s premises). The Defendants occupy the adjacent property at 198-200 Towngate, Wyke, Bradford (the Defendants’ premises), owned by the first Defendant, who is the father of the other Defendants. The Defendants’ premises include a dwelling and a hot-food takeaway shop known as Khyber House. The parties are related but have longstanding ill feeling between their respective family branches.
The Defendants installed an extractor fan that protrudes through the side wall separating the two properties, extending partially over the Plaintiff’s rear yard. The Plaintiff commenced proceedings alleging that the extractor fan constituted a trespass and nuisance. The Plaintiff sought an injunction to remove or reposition the fan and damages. The Defendants contested the claims, arguing, among other things, that the Plaintiff’s father had consented to the installation on two occasions.
At first instance, His Honour Judge Hawksworth QC dismissed all claims for trespass and nuisance. The Plaintiff appealed solely against the finding that the extractor fan did not trespass on the Plaintiff’s property. Permission to appeal was granted, and the appeal was heard before Mr Justice Silber.
Legal Issues Presented
- Whether the positioning of the Defendants’ extractor fan above the Plaintiff’s rear yard constituted a trespass to the Plaintiff’s property.
- In the event trespass is established, what remedy is appropriate—whether an injunction requiring removal or repositioning of the extractor fan or damages.
Arguments of the Parties
Appellant's Arguments
- The learned judge erred by requiring the Plaintiff to prove substantial interference with the use of the land to establish trespass.
- The extractor fan constitutes a permanent intrusion into the Plaintiff’s airspace a few metres above the ground, which should be actionable as trespass.
- The correct legal test does not depend on interference with normal garden activities but on whether the airspace above the land is invaded.
- An injunction should be granted to require removal or repositioning of the extractor fan.
Respondents' Arguments
- The judge was entitled to find no trespass due to the fan’s elevated position above the Plaintiff’s land.
- If trespass were found, damages would be a more appropriate remedy than an injunction.
- The claim is de minimis, and the Plaintiff had not objected for many years until family disputes arose.
- The Plaintiff’s property is derelict, which may affect the appropriateness of injunctive relief.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334 |
Establishes that intrusion into airspace above land, such as an advertising sign projecting a few inches, constitutes trespass. |
Used to support that any permanent physical intrusion into airspace immediately above land constitutes trespass, regardless of interference with normal activities. |
| Wandsworth District Board Works v United Telephone Co Ltd (1884) 13 QBD 904 |
Telephone lines above a street can constitute trespass against the landowner. |
Reinforces that physical intrusion into airspace is actionable as trespass. |
| Gifford v Dent [1926] W.N. 336 |
Projection of a sign several feet above premises constitutes trespass. |
Supports the principle that intrusion into airspace is trespass without need to prove interference with land use. |
| Graham v KD Morris and Sons Pty Ltd (1974) Queensland Rep 1 |
Oversailing boom of a tower crane held to be trespass over land it overhung. |
Demonstrates that intrusion by structures into airspace is trespass, even at height. |
| Bernstein v Skyviews General Ltd [1978] QB 479 |
Overflying aircraft taking aerial photographs does not constitute trespass; landowner’s rights in airspace limited to height necessary for ordinary use. |
Distinguished from cases of physical structures; supports limitation of trespass to airspace necessary for ordinary use and enjoyment. |
| Anchor Brewhouse Developments Ltd & Others v Berkley House (Docklands Developments) Ltd (1987) 38 BLR 82 |
Oversailing tower cranes constitute trespass to landowners’ airspace without need to prove damage or interference with normal use. |
Key authority relied upon to reject the trial judge’s requirement of interference with normal garden activities; establishes certainty that physical intrusion into airspace is trespass. |
Court's Reasoning and Analysis
The court analysed whether the intrusion of the extractor fan into the Plaintiff’s airspace constituted trespass. The trial judge held that trespass required interference with normal use of the land, which the court found to be a misdirection. The court reviewed established authorities, including Kelsen and Anchor Brewhouse, which consistently affirm that physical intrusion into the airspace immediately above land, even at height, constitutes trespass regardless of whether it interferes with normal activities on the land.
The court distinguished cases involving overflying aircraft (Bernstein), where trespass does not extend to high-altitude airspace unnecessary for ordinary use, from cases involving permanent physical structures projecting into airspace. It found that the extractor fan, positioned approximately 4.5 to 6 metres above the Plaintiff’s rear yard and projecting 750 millimetres into her airspace, constituted a permanent physical intrusion amounting to trespass.
The court concluded that the trial judge’s test was incorrect and that the positioning of the extractor fan amounted to actionable trespass. However, the court did not determine the appropriate remedy, noting that the trial judge had not considered whether an injunction or damages was appropriate. Given the complexity of factors relevant to relief, including the history of the dispute and the condition of the Plaintiff’s property, the court remitted the matter to the trial judge for determination of the remedy.
Holding and Implications
The court granted permission to appeal and allowed the appeal in part. It held that the positioning of the extractor fan by the Defendants constitutes trespass to the Plaintiff’s land.
The question of appropriate relief—whether an injunction requiring removal or repositioning of the extractor fan or damages—is remitted to the trial judge for further consideration. The Defendants are ordered to pay the Plaintiff’s costs of the action and appeal on a standard basis, subject to detailed assessment if necessary.
This decision clarifies that physical intrusion into airspace immediately above land, even at height, constitutes trespass without the need to prove interference with normal use of the land. No new precedent was set beyond applying established principles, but the ruling corrects the trial judge’s misapplication of the law on trespass.