Laiqat v Majid & Ors

A structure projecting from one property into the airspace immediately above neighbouring land constitutes trespass. The claimant need not prove substantial interference with ordinary activities in the garden. The relevant question is whether the structure invades airspace in which the landowner has possessory rights. The law distinguishes such structures from high-flying aircraft, which may pass through airspace at a height that does not interfere with the ordinary use and enjoyment of the land. The grant of an injunction remains discretionary and depends on the circumstances, including whether damages provide an adequate remedy.

The claimant owned premises adjoining property occupied by the defendants. An extractor fan fixed to the defendants’ wall projected 750 millimetres into the airspace above the claimant’s rear yard. The Bradford County Court dismissed claims in trespass and nuisance, holding that the projection did not interfere with normal activity in the garden.

The claimant appealed only the trespass decision. The central issues were whether the projection constituted an actionable trespass and, if so, whether injunctive or other relief should be granted.

1. Appeal allowed in part. Permission to appeal was granted. The extractor fan constituted an actionable trespass, and the claimant was entitled to a declaration to that effect.
2. Trespass is an interference with possession or the right to possession of land. A landowner is entitled to possess the airspace immediately above the land to the extent necessary for its ordinary use and enjoyment.
3. The correct test was not whether the projection interfered with normal activity in the garden. The authorities, including Kelsen v Imperial Tobacco Company (of Great Britain and Ireland) Ltd [1957] 2 QB 334 and Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd (1987) 38 Building Law Reports 82, established that a structure intruding into the claimant’s immediate airspace constituted trespass. No balancing of neighbouring interests was required to establish liability.
4. The limitation recognised in Bernstein v Skyviews General Ltd [1978] QB 479 concerned aircraft flying at a height that did not affect the use of the land. It did not justify applying a normal-activity test to a structure projecting over neighbouring land.
5. The remedy was remitted to Judge Hawkesworth QC. Whether an injunction should be granted, or damages accepted as an adequate remedy, depended on the evidence and the circumstances, including the alleged delay, the claimed de minimis character of the trespass and the condition of the claimant’s property.
6. The defendants were ordered to pay the claimant’s costs of the action and appeal, subject to detailed assessment if not agreed.

1. High Court (Queen's Bench Division): Appeal from the order of His Honour Judge Hawksworth QC dated 17 December 2004. The appeal was allowed to the extent that the extractor fan was declared to constitute trespass. The question of injunctive or other relief was remitted to the Bradford County Court.
2. Bradford County Court: His Honour Judge Hawksworth QC dismissed the claims in trespass and nuisance.