Handy Cross Dev Co Ltd v Vanni Properties Ltd
Gavin Bennison successful in obtaining mandatory injunctive relief and indemnity costs in commercial boundary dispute.
- On Friday 24 January 2025, His Honour Judge Gerald, sitting in the County Court in Central London, gave judgment in Handy Cross Dev Co Ltd v Vanni Properties Ltd, following the five-day trial of a boundary dispute between adjoining commercial premises: a ‘Hampton by Hilton’ hotel and self-storage facility in High Wycombe.
- The case was unusual in that the disputed boundary was only recently created, by a conveyance in December 2018. The conveyance involved the subdivision of a parcel of land into two without any pre-existing physical features lying along the line of the boundary, nor any pegging out of the boundary having taken place following its sub-division. Ascertaining the precise location of the boundary was therefore difficult.
- The claimant, the owner of the hotel, claimed that the defendant had trespassed upon its site by, amongst other things, erecting a wooden hoarding alongside the access road to the hotel and driving metal stakes into the ground which, it claimed, had ruptured the hotel’s gas supply on two occasions.
- The defendant said that the acts complained of in fact took place on its side of the boundary, and counterclaimed that part of the hotel’s access road and adjoining landscaping had been built in the wrong place, partly onto the defendant’s side of where the boundary lay.
- Each side relied on evidence from both boundary and valuation surveyors. The evidence relied upon by the respective boundary surveyors as suggestive of the position of the boundary varied considerably, albeit both sides placed some reliance upon the boundary skirting the ‘root protection area’ of a large oak tree, the radius of which was disputed. The defendant’s expert also relied upon scaling from a drainage plan including in the originating conveyance, which included GPS-referenced gridlines and so which enabled, the defendant claimed, the boundary to be positioned with absolute accuracy.
- HHJ Gerald rejected the claimant’s case, which had been subject to complete revision in closing submissions, in forthright terms. He found that the position of the boundary was precisely as the defendant had contended it to be all along. He held that the boundary position contended for by the claimant’s expert was “wholly fictitious” , adding that this was a “quite astonishing case where the claimant has come to court using an expert’s report to seek a declaration as to the true position of the boundary which the claimant itself not only did not need but did not believe in” at the time of the events in question.
- The judge also rejected the claimant’s argument that the defendant had acquiesced in the position of the boundary whilst the access road was being laid down, finding that in the context of a brownfield site being redeveloped, there was nothing at the relevant time which would have put the defendant on notice that its land was being built on.
- On the question of remedy, the parties were at odds as to whether mandatory injunctive relief should be granted requiring the claimant to remove the kerb and road surface of the part of the access road which was trespassing (around 1-1.5 metres of roadway over a distance of perhaps 15 to 20 metres). The claimant claimed that this would be oppressive in circumstances where the defendant did not allege that its use of its own land was impeded as a result of the incorrect positioning of the roadway. It argued, albeit without any supporting evidence, that ordering the roadway to be removed would force the hotel to close temporarily and carry a risk of enforcement by the local planning authority.
- The judge accepted the submissions of the defendant that, given the claimant’s deplorable conduct (both pre-action and during the course of the proceedings), the Court should exercise the discretion recognised in Coventry v Lawrence [2014] UKSC 13 in the defendant’s favour and order the removal of the trespassing part of the road. The judge accepted that the prima facie position was that an injunction should be granted, and that the burden lay on the claimant to establish otherwise. He identified that case as falling into a category of case cited in Coventry, where the trespasser had acted in a “high-handed manner” or attempted to “steal a march” on the other party, by contending for a boundary position which was inconsistent with, and more advantageous than, where their own documents (which were not disclosed to the defendant) showed it to be. The claimant was held to have engaged in “sharp practice”, justifying the grant of mandatory injunctive relief against it. HHJ Gerald also rejected the suggestion that the extent of the trespass was de minimis, or could be adequately compensated by a small money payment (per Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287), adding that the clamant had adduced “no evidence at all” to substantiate its contentions as to the allegedly oppressive nature of the relief sought.
- The trespassing part of the access road and adjacent landscaping were therefore ordered to be removed within three months.
- Finally, the judge accepted the defendant’s submission that costs should be awarded on the indemnity basis. Applying the guidance given by Tomlinson J in Three Rivers DC v The Governor of the Bank of England [2006] EWHC 816 (Comm) at [25], that the paying party’s conduct should be both unreasonable and out of the norm, he held that that was indeed the case in view of the claimant having advanced a case that was “not [just] weak or opportunistic: [but] without foundation”. He ordered the claimant to pay a sum on account of the defendant’s costs of the proceedings which exceeded the total of the defendant’s costs budget, remarking that he was not surprised that the defendant’s costs had exceeded the budget: the case had been “extremely hard-fought” and establishing the claimant’s true view as to the location of the boundary “would have taken a lot of time and trouble” on the part of the defendant’s legal representatives.
- Gavin Bennison, instructed by James Souter and Emma Preece of Charles Russell Speechlys LLP, acted for the successful defendant at trial.
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