Khosa v Ganesarayan - Property Dispute Appeal

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  Khosa & Anor v Ganesarayan & Anor [2026] EWHC 662 (Ch) (20 March 2026)

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[2026] EWHC 662 (Ch) | | |
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| | | Neutral Citation Number: [2026] EWHC 662 (Ch) |
| | | Case No: CH-2025-000140 |
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS
On appeal from the County Court at Central London (Recorder Midwinter KC)

| | | Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL |
| | | 20 March 2026 |
B e f o r e :

MR DAVID HALPERN KC SITTING AS A HIGH COURT JUDGE

Between:
| | (1) HARBRINDER SINGH KHOSA
(2) JASBIR KAUR KHOSA
(3) RAJINDER SINGH KHOSA | Claimants |
| | - and - | |
| | (1) MANMATHARAYAN GANESARAYAN
(2) SIVANANTHY GANESARAYAN | Defendants |

**Mr Daniel Dovar (instructed by Lincoln & Rowe) for the Appellants
Ms Stephanie Wookey (instructed by Sriharans Solicitors) for the Respondents

Hearing date: 5 March 2026
(Draft judgment circulated 13 March 2026)**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 20 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. DAVID HALPERN KC SITTING AS A HIGH COURT JUDGE
8. - - - - - - - - - - - - - - - - - - - - -
10. Mr David Halpern KC :
12. This is an appeal, brought with the permission of Trower J, from a decision of Recorder Midwinter KC (the " Judge ") sitting in the county court at Central London. Mr Daniel Dovar appears for the Appellants and Ms Stephanie Wookey for the Respondents. The same counsel appeared before the Judge.
15. The facts
16. Prior to 5 June 1998 the Appellants were the owners of both 99 and 101 Whitton Road, Twickenham. (The members of the Appellants' family who owned the land in 1998 are slightly different from the current owners of the retained land, but nothing turns on this and it is convenient to refer to them as the "Appellants".) No 101 comprises a ground-floor shop and two upper floors which are in residential occupation. At the rear of the shop is a single-storey extension of approximately 6 metres by 5.5 metres (the " Extension "). In front of the shop there is a small forecourt and behind it there is a small yard, with a path beyond the yard leading to a rear gate.
18. On 5 June 1998 the Appellants transferred part of No. 101 to the Defendants. The transfer (the " Transfer ") defined the property transferred as " the part of the Vendor's Land known as 101 Whitton Road Twickenham and edged red on the attached plan (being ground floor level only as to the area hatched red on the said plan " (the " Property "). The land edged red on the plan is the building; the area hatched red is the Extension.
20. The Transfer includes easements and covenants both over and in favour of the Retained Land, which is defined as " the remainder of the Vendor's land edged brown and green on the [attached] plan ". The brown land is the forecourt, whilst the green land is the rear yard and the path. Accordingly the term "Retained Land" does not expressly include the subsoil below, or the airspace above, the Extension.
22. I was told (and it is not disputed, albeit that there is no evidence before me) that the Respondents granted a lease-back to the Appellants of the upper floors, which the Appellants let to short-term residential tenants.
24. The dispute relates to the airspace above the Extension. The Judge found that two units (described in the pleadings as air-conditioning units, but said by the Judge to be refrigeration units: the " Units ") were first installed on the roof of the Extension in 2001, but were then moved to the rear wall of the Extension following objections by the Appellants. There was a fire in one of the Units, following which they were moved back to the roof of the Extension on or about 23 December 2021. It appears from photographs that the roof of the Extension is not of uniform height. The section of the roof nearest to the main building is somewhat higher than the section closest to the rear yard. The Units are on the lower section of the roof. However, it is not clear from the photographs whether the Units project above the higher part of the roof.
26. The Appellants' Particulars of Claim allege that the Units constitute a trespass, as well as being a breach of an express covenant not to obstruct the Retained Land, and they seek a mandatory injunction for their removal, together with damages at the rate of ?100 a week pending removal.
28. The Respondents' Defence alleges that the Transfer includes the airspace above the Extension. The Defence also pleads that there was a National Lottery satellite receiver on the Extension roof at the time of the Transfer. The allegation about the satellite dish was included in relation to an issue which was ordered to be struck out from the Defence, but the presence of the satellite dish continued to feature in the Respondents' witness statements.
31. The Judgment below
32. The Judge gave an extempore judgment at the conclusion of the trial on 7 May 2025. Firstly, he concluded at [23]:
34. "In conclusion on the primary argument, I find that the transfer was of the building which, for the main part of the building, included the airspace to the heavens, but in relation to the area occupied by the rear extension, was of the ground floor level only. It did not include the airspace above ground floor level."
35. Secondly, he dealt with what he described as " the defendant's alternative case ", which required him to decide what was meant by " ground floor level only ". He rejected the Appellants' argument that this meant the height of the Extension roof as at the date of the Transfer (the height is in fact the same today) and he said at [28]:
37. "In my judgment, the ordinary and natural meaning of "ground floor level" when defining property in horizontal slices in space is a fixed area extending from the ground to the point at which the ground floor meets what would notionally be the first floor. In other words, it is a fixed three-dimensional block of space with straight sides. Whilst I am not able based on the evidence before me to identify the precise height at which the "ground floor level" ends in the present case in metres and centimetres, it seems to me that it must extend at least to the height of the roof of the rear extension at its highest point, which no one suggested had changed since 1998."
38. He gave six reasons for this conclusion:
40. i) As a matter of language, the words naturally referred to a fixed three-dimensional area.
41. ii) He thought that this was how they would be interpreted by a reasonable reader.
42. iii) He was influenced by the fact that the Extension roof was not flat but had changes of level (although he had no evidence of the exact changes in level save for the photographs which were inconclusive) and that the Extension might in the future be replaced by a new building with a roof of a different height.
43. iv) The Respondents' neighbouring property at No 99 has a rear extension with a roof which is slightly higher, but it is still properly called a ground-floor extension.
44. v) There is nothing wrong in dividing airspace horizontally, but the question remains: Where is the boundary?
45. vi) The term " ground floor level " envisaged things being placed on the roof " at least up to a certain height ". If a ball were kicked onto the roof of the Extension, " it would be an unnatural use of language to say that it had been placed on the first-floor level."
46. He also took into account two other factors:
48. i) His construction was consistent with the presence of the satellite dish on the roof. He acknowledged that one could say there was an express or implied licence to keep the satellite dish but it was more straightforward to say that this part of the airspace was included.
49. ii) His construction would enable the Respondents to access the roof for repairs and " other purposes connected with the use of the rear extension ". He did not say what those other purposes were.
50. He concluded at [41]:
52. "In summary, I find:
53. a. The transfer to the defendants, in so far as it related to the area occupied by the rear extension, was of the "ground floor level" only. The claimants own the airspace above "ground floor level".
54. b. The "ground floor level" constitutes the area up to the level of the roof of the rear extension at its highest point in 1998 and today which I take to be the level of the roof as it emerges from the building on the left-hand side when looking at the building from the rear.
55. c. On that basis, I am not satisfied that the compression units are trespassing on the claimant's land or that they are doing so to more than a de minimis extent that would not justify relief and the result is that the claim must fail."
56. Thirdly, he said that, if he had found that there was a trespass, he would have refused to grant an injunction but would have awarded damages in lieu. He referred to Coventry v Lawrence [2014] AC 822 and summarised the test as follows:
58. "(a) the starting point is that injunctive relief should be granted for trespass and the burden would be on the defendants to show a reason why an injunction should not be granted. (b) where defendants provide a reason, the court should adopt a broad, evaluative approach to the question of whether damages in lieu would be more appropriate than injunctive relief, without having any predisposition one way or the other and that is a question on which previous authority is generally not a useful guide. Though it is not a balance of convenience test, the court will inevitably be engaged in weighing the harm that the injunction would cause to the defendants against the harm that the trespass causes to the claimants and the sufficiency or otherwise of damages as an alternative remedy to injunctive relief."
59. He was satisfied on the evidence that the Respondents needed the Units in order to run their business of a convenience store and that it was not practicable to put the Units inside the Property.
61. As against this, he attached little weight to the reasons advanced by the Appellants as to why they would suffer hardship if an injunction were refused:
63. i) Fire risk: the Units had been on the roof or rear wall of the Extension continuously since 2001 and there had only been one fire. The risk was minimal, and in any event the consequences of a fire would be more serious if the Units were located indoors.
64. ii) Tenants' complaints: The Appellants said that the residential tenants upstairs had complained, but the written evidence was limited to one email, and in any event any tenant of a unit above a convenience store should expect a certain amount of noise. If in the future the Respondents' activities constituted a nuisance, the tenants would have appropriate remedies.
65. iii) Development: The Appellants claimed that the Units might present an impediment to future development of the airspace above the ground floor. The Judge held that, if there were to be development, the question of moving the Units would be a minor part of a much more serious discussion as to what was to be done with the Extension.
66. He therefore held that he would have awarded damages in lieu of an injunction, had he found there to be a trespass. The Particulars of Claim sought damages of ?100 a week pending removal, and he held that he would have ordered damages in this sum on a weekly basis.
68. Grounds of appeal
69. There are three grounds of appeal:
71. i) Procedural irregularity: The Judge's finding on the Respondents' alternative case was one which had not been pleaded or raised at any time before closing submissions. Further, it was unfair to decide the case on the basis that the Appellants had produced no evidence of trespass, given that the alternative case had not been pleaded.
72. ii) Construction of the transfer: the Judge should have concluded that the Property did not extend into the airspace above the Extension as built.
73. iii) Damages in lieu: The Judge should not have concluded that, if he was wrong, he would have exercised his discretion against granting an injunction.
74. It is convenient to deal with Ground Two before Ground One.
77. Ground Two: construction of the Transfer
78. There is no respondent's notice challenging the Judge's conclusion that the words " ground floor level only " in the Transfer exclude the airspace above the Extension up to the heavens. In any event, I agree with his conclusion. The courts will not readily find that parties have created a flying freehold, in view of the difficult issues which arise in relation to easements and covenants. Nevertheless, if the language of the transfer is sufficiently clear, the courts must give effect to it. The only contrary indication is that the definition of Retained Land does not expressly include the subsoil or the airspace, but in my judgment that is insufficient to outweigh the very clear words transferring the ground floor " only ".
80. Having reached that conclusion, the Judge nevertheless held that part of the airspace was included within the definition of " the ground floor level only ". He was influenced by the fact that the roof of the Extension is not of uniform height, albeit that there was no clear evidence as to the different heights. He was also troubled by the possibility that the Extension might subsequently be re-roofed at a different height.
82. Whilst I share these concerns, they are consequences which flow from the creation of this particular flying freehold. A transfer must be construed by reference to the factual matrix at the date it was executed. The Transfer refers to the Extension, and that must mean the actual Extension with its actual roof as at 5 June 1998. In principle, it is possible to have an undulating horizontal boundary, just as it is possible to have an undulating vertical boundary on the ground. I agree that there will be further complications if the current Extension is demolished and rebuilt, but that, too, is an inevitable consequence of the way that the parties (or their conveyancers) chose to express the Transfer. It would have been sensible to have included a section drawing, just as it is sensible to have a scaled plan when a property is subdivided vertically.
84. I can see no necessity for implying a term that the boundary must be a straight horizontal line, nor that it should be at the height of the upper part of the roof. As for the Judge's other reasons:
86. i) The fact that the neighbouring property has a roof which is even higher than the upper part of the Extension roof is irrelevant, and in any event he did not conclude that the boundary is at the height of the neighbour's roof.
87. ii) The presence of the satellite dish is also irrelevant. Since this was in place at the date of the Transfer, the right to retain and maintain it on the roof presumably passed under section 62 of the Law of Property Act 1925 and/or the rule in Wheeldon v Burrows.
88. iii) The owners of the Extension would have a right to go onto the roof in order to repair it, either by virtue of the rights granted over the Retained Land (if that includes the airspace above the roof) or pursuant to the Access to Neighbouring Land Act 1992. I do not understand what is meant by other uses to which the roof might be put; none are contemplated in the Transfer.
89. It follows that the Units plainly constitute a trespass.
92. Ground One: alleged procedural errors
93. I find this ground of appeal much more difficult to deal with. The law has recently been restated by Falk LJ in Phones 4U Ltd v EE Ltd [2025] EWCA Civ 869 at [199]:
95. "Drawing the threads together, I would summarise the position as follows:
96. a) The starting point is that a judge is not entitled to decide a case on a basis that has neither been pleaded nor canvassed before him. His function is limited to deciding the issues put before him.
97. b) Where, as in Al-Medenni and Satyam, a "theory" advanced by the judge is outside the scope of the pleaded issues (in the sense of the facts necessary to establish a claim or defence: Shagang Shipping at [98]), that will generally be a clear indication that reliance on that theory is impermissible.
98. c) However, the key point is the interests of justice and, in particular, the question of prejudice to the losing party.
99. d) This may mean that, even if an uncanvassed "theory" is not outside the scope of the pleaded issues, it would be unfair in all the circumstances of the case for the judge to rely on it. Conversely, in some cases it might not be unfair for the judge to depart from the scope of the pleaded issues, although generally only if this was fully addressed at trial."
100. In order to decide whether there has been procedural unfairness, it would be necessary not merely to review the pleadings, but also the witness statements and the transcript of the hearing. This would be disproportionately time-consuming in respect of this appeal which has been listed for half a day. It is for this reason that I have dealt with Ground Two first and have reached a conclusion which makes it unnecessary to consider Ground One in that regard.
102. However, the question remains whether there has been procedural unfairness in relation to the issues which arise under Ground Three, viz. did the Judge err in concluding that, if he had found in the Appellants' favour, he would have held:
104. i) That the Respondents had produced sufficient evidence to rebut the presumption that an injunction should be granted;
105. ii) That the factors in favour of granting an injunction were outweighed by the factors in favour of refusal; and
106. iii) That damages should be quantified at ?100 a week?
107. I shall consider these issues in the course of discussing Ground Three.
110. Ground Three: Refusal of an injunction
111. Both counsel agreed the Judge's summary of the law (which I quote at paragraph 14 above), save that Mr Dovar added that Coventry v Lawrence was a case involving nuisance and that there is a stronger presumption in favour of an injunction in a case involving trespass: Higson v Guenault [2014] EWCA Civ 701 at [51].
113. The decision whether or not to grant an injunction therefore involves two stages:
115. i) Stage One is whether there is sufficient evidence to rebut the presumption that an injunction should be granted where there has been a trespass. This is a question of fact. The evidence does not need to be the entirety of the evidence relied on at Stage Two, but merely sufficient to rebut the presumption.
116. ii) If the presumption is rebutted, Stage Two is whether or not to grant an injunction. This requires the judge to make an evaluative assessment, which an appeal court should not interfere with unless it is irrational in the Wednesbury sense: Henderson v Foxworth [2014] 1 WLR 2600 at [62] per Lord Reed PSC.
117. As regards Stage One, the Defence merely pleads that the Respondents carry on the business of a newsagent and off-licence from the Property. The Defence does not explain why the Defendants need the Units. However, the First Respondent's witness statement states:
119. "34. I wish to state that most of our products that we sell require 24 hour refrigeration which requires compressors to be placed outside the shop. These food products are worth ?6000 at any point in time and without such refrigeration, we run a risk of spoiling those food and beverage products. I refer to the photographs of the food refrigeration which are marked in Exhibit H. We have no other space except to put the refrigeration compressor units on the airspace which belongs to us.
120. 35. I wish to state that this property and the shop therein is the only source of livelihood for me and my wife. We have been continuously running this shop since 1998."
121. Exhibit H includes photographs showing two substantial refrigerated cabinets, one for groceries and the other for beer and white whine.
122. The witness statement is dated 13 December 2024, which was nearly five months before the trial. At the trial Mr Dovar cross-examined the First Respondent about the need for the Units. He replied that the stock which was kept in the refrigerated cabinets that were served by the Units amounted to some 60-70% of his stock. Mr Dovar complains that this evidence was not foreshadowed by any pleading or disclosure, as it should have been. It might be said against him that he need not have asked the question. I am satisfied that the witness statement showed that the Units were necessary for the refrigerator cabinets which were necessary for the storage of goods forming a substantial part of the business carried on at the Property. Although this had not been (but should have been) pleaded in the Defence, sufficient warning was given in the witness statement. No objection to this part of the witness statement was taken before or at the trial. I therefore conclude that there was no procedural unfairness in relation to Stage One and that the Judge did not err in his finding of fact that the presumption had been rebutted.
124. Turning to Stage Two, Mr Dovar did not take issue with the Judge's conclusion that there were three principal factors in the Appellant's favour, nor with his conclusion that the first factor (risk of fire) was not significant. He did take issue with the Judge's dismissal of the second factor (i.e. complaints by tenants) but I am satisfied that the Judge did not err in his conclusion on the evidence before him.
126. This leaves the third factor (i.e. the impact on any subsequent development of the airspace), which Mr Dovar understandably relied on as by far the most important factor. It is on this issue that I consider he has a stronger point in relation to procedural unfairness. It can be said against him that it was always up to the Appellants to satisfy the court that the discretion to grant an injunction should be exercised in their favour. Nevertheless the grounds on which the Respondents oppose the grant of an injunction were never properly canvassed at any stage before the trial. It is therefore understandable that there was very little evidence from the Appellants as to the prospects of obtaining planning permission. I have to say that I have serious doubts as to whether permission will ever be granted to build on top of the Extension, not least because no such permission has been granted in the 27 years since the Transfer. However, this issue was never properly explored in evidence at the trial and hence I cannot rule out the possibility.
128. The Judge held that the prejudice to the Respondents if an injunction were granted outweighed any prejudice to the Appellants. If one leaves aside the possibility of development, his conclusion was not only rational but clearly correct. However, if one finds that there is a real possibility of development, then the picture changes. If planning permission were obtained but could not be implemented because of the presence of the Units on the roof, it seems to me that the prejudice to the Appellants would far outweigh the prejudice to the Respondents. In that event the existence of an injunction would give the Respondents a potential "ransom" which would be entirely unjustified.
130. I could remit the case to the county court in order to consider the chance of obtaining planning permission and to reconsider the exercise of discretion in the light of that finding. I am reluctant to do so, firstly because of the expense involved, and secondly because the judge who heard the issue would be left with a difficult decision if he or she found that there was a chance of planning permission but not a probability.
132. It occurred to me during the hearing of the appeal that the fairest way to deal with the situation would be to grant an injunction but suspend it unless and until planning permission is obtained. This would avoid the need to remit the case to the county court and would also solve the conundrum that a real possibility of planning permission might not outweigh the prejudice to the Respondents, whereas a certainty of planning permission would do so. The court's inherent jurisdiction to suspend a final injunction was confirmed by the Court of Appeal in Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 at 182, 192 and 194.
134. However, as the point was raised by me for the first time at the hearing, I gave the parties the opportunity to make further written submissions on it. In her written submission dated 11 March 2026 Ms Wookey accepts that I have jurisdiction but submits that I should not exercise it. She relies on two authorities.
136. First, she relies on Newham London Borough Council v Ali [2014] 1 WLR 2743 at [37] per Lord Dyson MR:
138. "I would emphasise at once that the power to suspend a section 106(5) injunction should be exercised sparingly. Otherwise, the planning purpose achieved by a section 106 planning obligation will be frustrated. But, as I have said, it does not follow from the fact that the existence of an impending planning appeal is not a good reason for refusing an injunction that its existence may not justify suspending the injunction pending the appeal. The grant of an injunction to enforce a planning obligation reflects the courts view that a party should normally be held to its bargain. But there may be circumstances in which it is fair, just and reasonable to suspend the injunction."
139. The statement that the discretion to suspend should be exercised " sparingly " was made in the context of an injunction under s.106(5) of the Town & Country Planning Act 1990 and was not intended to be applicable to every case in which the court considers suspension. In Ali the court held that an injunction should be granted to enforce a s.106 agreement, but the question was whether it should nevertheless be suspended. I note that the court in fact concluded that there were sufficient reasons for suspending it. By contrast, in the present case I have concluded that the Defendants have adduced sufficient evidence to displace the presumption in favour of an injunction, so that the court has to exercise a discretion without any presumption one way or the other. In those circumstances, I do not accept that the power should only be exercised sparingly. However, if I am wrong about that, I am satisfied that there are strong reasons for exercising that discretion, as set out in paragraphs 34 to 36 above.
141. Secondly, Ms Wookey submits that where an injunction is suspended, this is usually only for a limited period of time. She refers to the judgment of Lord Reed PSC and Lord Hodge DPSC in Manchester Ship Canal Co Ltd v. United Utilities Water plc [2025] AC 761 at [50]:
143. "(14) The courts have consistently affirmed the importance of injunctions as a remedy for nuisance caused by the pollution of watercourses: see, in particular, Pride of Derby. ?
144. (15) At the same time, the courts have taken account of the public interest in preserving the effective removal of sewage from commercial and domestic properties, and the difficulties which may be faced by the authorities responsible for sewerage services if they cannot readily remove the nuisance. They have generally done so by granting injunctions whose effect was suspended so as to allow the authorities a reasonable time to alter the sewerage network to prevent further pollution ?"
145. No doubt there are many cases in which a temporary suspension is all that is needed. I also accept that an indefinite suspension has the disadvantage of delaying closure between the parties. However, this factor carries less weight in the present case, given that the parties (or their successors in title) are already locked into a permanent relationship as a result of the creation of the flying freehold. I therefore conclude that it is right to suspend the injunction.
147. After I had circulated my draft judgment Ms Wookey made a further (unsolicited) submission, reminding me that in her written submission after the hearing she had proposed that the parties seek to agree undertakings in lieu of an injunction. She requested that I provide reasons for granting a suspended injunction in the face of that offer. I decline to do so, for the following reasons:
149. i) The purported request for clarification is an attempt to re-argue the matter, which is to be deprecated: see the cases cited in Kyndryl UK Ltd v Jaguar Land Rover Ltd [2025] EWHC 1354 (TCC) at [46-48]. I gave the parties two opportunities to address me on the question of suspending the injunction, firstly at the hearing itself and second by allowing a week for further written submissions. There has to be finality to this process, not least because it would be disproportionate to spend yet more resources on an appeal which was listed for half a day.
150. ii) If the Respondents had offered undertakings in the form of the injunction which I now order, the court would doubtless have accepted those undertakings. However, it is wrong to seek to draw the court into negotiations between the parties as to what undertakings would be acceptable to the court.
151. I now turn to the quantum of damages in lieu of an injunction. It is well established that damages for trespass may comprise an award of negotiating damages. As Lord Reed JSC said in One Step (Support) Ltd v. Morris-Garner [2019] AC 649 at [95]:
153. "(1) Damages assessed by reference to the value of the use wrongfully made of property (sometimes termed "user damages") are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass). The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment. ?
154. (3) Damages can be awarded under Lord Cairns' Act in substitution for specific performance or an injunction, where the court had jurisdiction to entertain an application for such relief at the time when the proceedings were commenced. Such damages are a monetary substitute for what is lost by the withholding of such relief.
155. (4) One possible method of quantifying damages under this head is on the basis of the economic value of the right which the court has declined to enforce, and which it has consequently rendered worthless. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded as a quid pro quo for the relaxation of the obligation in question. The rationale is that, since the withholding of specific relief has the same practical effect as requiring the claimant to permit the infringement of his rights, his loss can be measured by reference to the economic value of such permission.
156. (5) That is not, however, the only approach to assessing damages under Lord Cairns' Act. It is for the court to judge what method of quantification, in the circumstances of the case before it, will give a fair equivalent for what is lost by the refusal of the injunction. ?"
157. If the Judge had found that there was a trespass, he would have awarded damages at the rate of ?100 a week, which was the sum claimed in the Particulars of Claim pending the grant of an injunction. Mr Dovar submitted that he never intended that to amount to full negotiating damages. However there was no evidence of any different sum, and I am satisfied that the Judge was entitled to conclude that this was a reasonable amount.
159. The Judge's order does not specify an end date. Presumably he intended the damages to run for so long as the Units remain in place, which might be in perpetuity. In my judgment the rate of damages awarded by the Judge is reasonable, but ought to be embodied in a capitalised sum. Both counsel agreed that I should perform that exercise, in order to avoid having to remit this case to the county court, albeit that this would inevitably be a rough-and-ready exercise in the absence of factual or expert evidence. Doing the best I can, I hold that the appropriate capital sum is ?50,000, which is approximately equal to 10 years at ?100 per week. I consider it to be fair to both parties as the price for being allowed to retain the Units on the roof. For the avoidance of doubt, this single sum represents the entire damages from the date of the trespass on 23 December 2021.
161. This sum has been calculated without reference to the possibility of planning permission. If planning permission is ever granted for development of the airspace above the Extension and if it cannot reasonably be implemented without the removal of the Units, then the suspension of the injunction which I am imposing will be lifted, conditional upon the Appellants repaying to the Respondents a proportion of the capital sum of ?50,000. The appropriate proportion will be arrived at by deducting damages at the rate of ?100 a week from 23 December 2021 to the date of the planning permission. There will be general liberty to apply, in particular in case of any dispute (i) as to whether the planning permission can reasonably be implemented without an injunction and (ii) as to the amount of damages to be repaid.
164. Costs
165. In written submissions following circulation of my draft judgment, the Appellants ask for their costs of the trial and the appeal on the standard basis, The Respondents submit that the order should be limited to half the costs. In my judgment the right order is that the Appellants should have two thirds of their costs of the trial and the appeal. Although the Appellants have succeeded on the appeal, they have failed to achieve their primary goal, which was an immediate injunction.
167. The Respondents oppose the making of an order for payment on account, but have not provided any sufficient reason for departing from the presumption in CPR r. 44.2(8) in favour of such an order. I order a payment on account in the sum of ?60,000, to be paid by 17 April 2026.
170. Diposal
171. For the reasons set out above, I allow the appeal on the following basis:
173. i) I hold that the Transfer does not extend to any airspace above the Extension and accordingly that the Units on the roof of the Extension constitute a trespass.
174. ii) I uphold the Judge's conclusion that, if he had found a trespass, he would have awarded damages in lieu of an injunction at the rate of ?100 per week but I substitute the sum of ?50,000 as the capitalised value of the damages.
175. iii) I impose an injunction requiring the Respondents to remove the Units, but I suspend this so that it will not take effect unless the Appellants obtain planning permission for development of the airspace above the Extension, which permission cannot reasonably be implemented whilst the Units remain on the roof. I also make the lifting of the suspension conditional upon the Appellants repaying a proportionate part of the damages as explained in this judgment.

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