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Trespass
Court of Appeal
13 May 2004
Potter and Jonathan Parker LJJ and Sir Swinton Thomas
[2004] EWCA Civ 570
[2004] 26 EG 194
Trespass - Water main - Damages - Undertaker laying water main in land without serving notice under section 159 of Water Industry Act 1991 - Claim for damages - Whether damages loss of development value or restitutionary damages based on value of benefit to undertaker - Whether damages based on compensation payable under section 180 of and Schedule 12 to Water Industry Act 1991
In 1991, the appellant water undertaker served statutory entry notices, under section 159 of the Water Industry Act 1991, to all owners and occupiers believed to be affected by its proposal to lay a new 28km water main. It subsequently laid approximately 20m of the main over land owned by the respondent. Since the respondent had not been served with a notice of entry, this action constituted a trespass, for which the respondent brought proceedings. He claimed as damages loss of development value, based upon the loss of two development plots at £50,000 each and additional development costs. In the alternative, he claimed restitutionary damages representing the value to the appellant of the water main on the basis of a fair price for the benefit obtained from its wrongful use of the respondent's land; namely 5% of £210,527, being the annual charging rate in the respect the main. In its defence, the appellant contended that the appropriate measure of damages was the compensation that would have been payable under Schedule 12 to the 1991 Act, a sum that was agreed at £110. In the court below, the respondent was awarded £2,170, consisting of the £110 compensation that would have been payable, £500 for loss of an opportunity to negotiate a higher sum and £1,560 as restitutionary damages. The restitutionary damages, which reflected the trespass of passing of water through the respondent's land without authority, was based upon £520 pa for three years from the date upon which the trespass commenced to the date at which the matter ought to have been compromised. The appellant appealed against the second and third elements of the award of damages.
Held: The appeal was allowed in part, and the...