Cases - Bracewell v Appleby
Record details
- Name
- Bracewell v Appleby
- Date
- [1975]
- Citation
- Ch. 408
- Legislation
- Keywords
- Easements - rights of light
- Summary
-
The defendant owned one of six houses which had a right of way over a private road. He built another house on an adjoining plot. The plaintiffs, who were owners of other houses in the road, began proceedings for a declaration that the defendant had no right of way for the new house and for an injunction restraining the defendant from using the road to reach it.
The judge held that although the defendant did not have a right of way over the private road to the adjoining land, the plaintiffs were not entitled to an injunction as a result of their delay in taking action and assessed damages instead. The judge held that the defendant was liable to pay an amount of damages which, so far as it could be estimated, was equivalent to a proper and fair price which would be payable for the acquisition of the right of way. The plaintiffs were to be treated as being willing to accept a fair price for the right of way and not as if they were in the extremely powerful bargaining position which an interim injunction would have given them. The judge assessed the notional profit that the defendant had made on the new house as £5,000. He went on to say that the proper approach to damages was to arrive at a fair figure which the parties would have arrived at to compensate the plaintiffs for loss of amenity and increased use of the road and, at the same time, which would not be so high as to deter the defendant from building at all. He took into consideration that it was a time of increasing property prices, that the defendant was not a speculative builder and that he had built the new house to live in (and did live in it, having sold the old house). The judge held the defendant would have paid a relatively large proportion of the notional profit to get the right of way and achieve the building of his new home and assessed the figure at £2,000 (i.e. 40% of the notional profit). The plaintiffs were entitled to one-fifth each of this sum as damages.