Summary

The carrying out of industrial works on agricultural land over which a claimant enjoyed various sporting, shooting and fishing rights was a substantial interference with those rights. However, the claimant had not exercised its rights for over 60 years and it was unlikely that it had suffered any pecuniary loss. Nominal damages were therefore awarded.

Facts

The claimant sought a declaration, injunctions and damages for substantial interference with its rights over a piece of land by the construction and operation of wind turbines on neighbouring land.

Under a lease, the claimant enjoyed various shooting, fowling, sporting and fishing rights over the land. It had not exercised, or attempted to exercise, the rights for over 60 years. The owners of the land used it for agricultural purposes, including grazing sheep and cattle, and growing crops. Although game was present on the land, the land provided poor quality shooting, and the rights were of low value. The defendant wind farm company obtained planning permission to construct and operate six wind turbines to the north of the land. The permission allowed it to construct access roads and a temporary compound, and to carry out works, on the land. The works were carried out and completed, and the owners carried out restorative works on the land to return the temporary compound to agricultural use. The works included the upgrading of a spur road and splay and the conversion of an existing agricultural track into a surfaced access road. The owners then leased the access road to the wind farm company, with a right to use the road for access to the wind farm.

Held

Interference with claimant's rights - The claimant had to show that there had been an interference with the reasonable exercise of its rights, namely a fundamental change in the character of the land, Peech v Best [1931] 1 K.B. 1 applied, Wellbarn Shoot Ltd v Shackleton [2003] EWCA Civ 2 followed. It was not essential to show actual loss to succeed in obtaining an award of damages or an injunction, Nicholls v Ely Beet Sugar Factory Ltd (No.2) [1936] Ch. 343 followed. The works carried out on the land taken as a whole had constituted a substantial interference with the claimant's rights. They had been industrial in nature and had had nothing to do with agriculture, so they had amounted to a fundamental change in the character of the land, albeit only a small part. They had had the effect of excluding the compound, the splay, the spur road and the access road from the exercise of the claimant's rights. Although the field in which the compound had been placed was likely to have been grazed if the works had not been carried out, so as to preclude shooting, it was not just the effect of exclusion which had to be taken into account, but also the effect of noise and dust on the surrounding areas. Dust reduction measures had been put in place during the works, but it was likely that in the summer months particularly significant amounts of dust had been generated. The reinstatement work had been completed before or shortly after the start of the shooting season in respect of some species of game bird. However, the claimant's rights were not restricted to those birds, and heavy plant had continued to use the access road frequently, and commissioning work, trackside drainage and redressing of the access road had also continued. After the completion of the works, the substantial interference had ceased. The lease of the access road to the wind farm company was not likely to lead to substantial interference in the foreseeable future (see paras 22, 27, 29-31 of judgment).

Appropriate remedy - The claimant was entitled to the declaration sought and to damages for the substantial interference to its rights. It was unlikely that the claimant had suffered any pecuniary loss, so damages would be nominal. It was not appropriate to award negotiating damages to reflect what the claimant might have negotiated with the defendant to allow the works. The claimant had been in a very weak bargaining position, and the economic value of the right breached on a temporary basis where the right had not been exercised for decades was such that nominal damages were a sufficient remedy, Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 followed. Injunctive relief was not appropriate because the works had already taken place and there was no substantial interference continuing, or likely in the foreseeable future. Damages of £100 would be awarded (paras 32-37).

Declaration granted, nominal damages awarded