Carter & Anor v Cole & Anor [2009] EWCA Civ 410 (20 May 2009)

Carter & Anor v Cole & Anor [2009] EWCA Civ 410 (20 May 2009)

The Coles' interference with the visibility splay constituted a derogation from the grant of a right of way, justifying a mandatory injunction to restore the splay and an award of damages, though the quantum was reduced to £20,000 based on a rough assessment of loss of commercial use.

Citation
[2009] EWCA Civ 410
Parties
Claimant/respondent: Terence John Carter; Claimant/respondent: Jane Frances Carter; Defendant/appellant: Jeffrey Mark Cole; Defendant/appellant: Jacqueline Pamela Cole
Jurisdiction
England and Wales
Judgment Date
20 May 2009
Procedural Posture
Civil Appeal / Appeal From Central London County Court Decision
Outcome
Appeal dismissed except as to quantum of damages, which is reduced.
Legal Topics
Derogation From Grant, Right of Way, Injunctions, Damages, Planning Permission
Property Law Land Law Derogation From Grant Right of Way Injunctions Damages Planning Permission

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Parties

Terence John Carter

Claimant/respondent

Jane Frances Carter

Claimant/respondent

Jeffrey Mark Cole

Defendant/appellant

Jacqueline Pamela Cole

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Central London County Court Decision

Legal Issues

  1. 1 Whether the defendants derogated from the grant of a right of way by interfering with the visibility splay
  2. 2 Whether a mandatory injunction should be granted to restore the visibility splay
  3. 3 Whether the calculation of damages was correct

Ratio Decidendi

The Coles' interference with the visibility splay constituted a derogation from the grant of a right of way, justifying a mandatory injunction to restore the splay and an award of damages, though the quantum was reduced to £20,000 based on a rough assessment of loss of commercial use.

Court Disposition

Appeal dismissed except as to quantum of damages, which is reduced.

Orders

  • Mandatory injunction requiring restoration of the visibility splay upheld.
  • Damages awarded reduced to £20,000.