Clochfaen Estate Ltd v Bryn Blaen Wind Farm Ltd & Ors

Interference with sporting rights is substantial where works fundamentally change the character of the servient land, even if they affect only part of it. The court must assess both exclusion from the affected area and consequential effects such as noise and dust. Actual pecuniary loss is unnecessary to establish the interference or obtain relief. However, negotiating damages are not automatically available. They depend on whether the economic value of the breached right represents the claimant’s loss. Where the interference was temporary, the right had not been exercised for decades, the claimant had weak bargaining power and there was no continuing or foreseeable interference, a declaration and nominal damages may be sufficient. An injunction is inappropriate once the works are complete and no substantial interference continues.

The claimant held exclusive shooting, fishing and fowling rights over approximately 4,000 acres, including agricultural land used for a windfarm access road, temporary compound and associated construction works. The defendants accepted the existence of the rights but disputed substantial interference.

The court considered whether the construction and related activity fundamentally changed the character of part of the servient land, whether damages should be assessed by reference to a hypothetical negotiation, and whether declaratory or injunctive relief was appropriate after the works had ended.

1. Substantial interference. The works carried out between May 2017 and April 2018 constituted substantial interference with the sporting rights. Their industrial character, exclusion of the compound, splay, spur road and access road, and the effects of construction noise and dust amounted to a fundamental change in the character of part of the servient land. The fact that the affected area was small, and that some parts would otherwise have been used for grazing, did not alter that conclusion (paras [22]-[30]).
2. The interference ceased after April 2018. The continuing and foreseeable use of the roads for windfarm and agricultural purposes was not shown likely to cause substantial interference, particularly because the former track provided little food or cover for game and the windfarm had another access route (paras [30]-[31]).
3. Actual pecuniary loss was not required. The claimant was entitled to a declaration and damages for the temporary interference, but the evidence established that pecuniary loss was unlikely. Nominal damages of £100 were therefore awarded against the defendants jointly and severally (paras [27], [32]).
4. Negotiating damages were refused. One Step (Support) Ltd v Morris-Garner [2018] UKSC 20 established that the economic value of a breached right may in some circumstances represent compensable loss, with hypothetical negotiation serving as a valuation tool. Here the right had not been exercised for decades, related to low-value agricultural land, and placed the claimant in a weak bargaining position. Nominal damages were sufficient (paras [33]-[35]).
5. An injunction was inappropriate. The works were complete, there was no continuing substantial interference, and the temporary nature of the trespass, together with the sufficiency of declaratory and nominal relief, meant that the usual approach to continuing trespass did not require an injunction (paras [35]-[37]).