Court finds Vreed-en-Hoop business trespassing into neighbour’s property

…orders demolition, awards $1.75M in damages, costs

A Vreed-en-Hoop, West Bank Demerara (WBD) resident has won a lawsuit against the owners of a popular business, whose building is trespassing onto the neighbouring property.
This was the ruling of High Court judge, Justice Priya Sewnarine-Beharry, who delivered the written decision on Friday.

The case was filed by Vreed-en-Hoop resident, Dian Balram – the claimant, against Samuel Chandool and Chitralekha Chandool – owners of the three-storey building that houses Amanda’s Bridal.
In her ruling, the High Court judge found that the defendants’ building is trespassing onto Balram’s property and ordered that they demolish those parts of the building, which should be four feet away from the boundary line. She also ordered the defendants to pay Balram some $1.75 million in damages and costs.
According to the court documents, the three-storey building in question was constructed in 2015. However, in 2019, the defendants extended the building westward onto the concrete fence, which borders Balram’s property.
In the process of that construction, the defendants broke the fence at intervals, placed steel upright at these intervals and extended their building so that its western wall is in line with and incorporates the fence and uprights. They also built a large, concrete platform without any drainage extending from their building which rests on the fence and overhung onto the claimant’s property.
The court document further states that no building permission was given to the defendants under the provisions of the Public Health Ordinance or otherwise to undertake the construction, which encroaches within four feet of the boundary in breach of the provisions of the Ordinance and its Regulations.
Additionally, the weight of the construction caused the sinking of Balram’s eastern gatepost, which is now seven inches lower than the western gatepost. The land is also now more prone to flooding since the construction as there is no drainage on the western side of the building for water to run off.

It was noted too that there were pipes emanating from the defendants’ property where rainwater was directed from their building and property onto Balram’s property, and other pipes where smoke was directed onto her property as well.
During the trial, the court was tasked with determining whether the defendants trespassed upon Balram’s land, and whether her cause of action lies in public or private nuisance, or both.

Trespassed
In the determination of the first issue, Justice Sewnarine-Beharry found that the location of defendants’ building on the fence necessitated trespass by the personnel and equipment of the electricity utility onto Balram’s property and the running of electric wires over her land. The court also found that during their construction, the defendants trespassed upon Balram’s land and broke her gate and deposited debris on her property as well as destroyed the plants growing along the border.
“This court finds that the claimant has proved that the defendants trespassed upon her property on a balance of probabilities,” the High Court Judge ruled.

Nuisance
On the issue of whether Balram’s case is a public or private nuisance, the Judge cited legal definitions of the two matters.
It was explained that a nuisance which interferes with a person’s use or enjoyment of land or of some right connected with land, but which does not cause damage or inconvenience to the public, it is a private nuisance and as such an actionable tort (37 Halsbury’s Laws (3rd ed 121)
It was also noted that a nuisance which inflicts damage, injury or inconvenience on the public or a class of the public which comes within its sphere of operation, constitutes an indictable misdemeanour known as common or public nuisance. However, if a private individual can show that he/she has suffered some particular direct and substantial damage to person or property over and above that sustained by the community at large, he/she has a right of action in tort for that nuisance. (37 Halsbury’s Laws 3rd ed 122).
Citing Clerk & Lindsell, Justice Sewnarine-Beharry surmised that “…it appears that if the claimant suffers in a way greater than the general public, that may give rise to a cause of action in tort for both public and private nuisance.”
She further pointed to Lord Cooke in Hunter v. Canary [1997] A.C. 665 at pg. 721, which states: “I see no reason why neighbours prejudicially affected should not be able to sue in nuisance if a building does exceed height, bulk or location restrictions. For then the developer is not making either a lawful or a reasonable use of landowning rights. This is to treat planning measures not as creating rights of action for breach of statutory duty but as denoting a standard of what is acceptable in the community.”
To this end, the High Court Judge said “The defendant’s actions and omissions in causing water runoff and debris unto the claimant’s property, subsidence of the gatepost and encroachment unto her property by the construction of a concrete platform which overhangs the claimant’s property by two feet has substantially interfered with her use and enjoyment of the land.”
Further, the court also found that it is undisputed that the defendants criminally breached the Public Health Ordinance Chapter 145, its By-Laws, Building Regulations by failing to obtain building permission and undertaking construction which encroached four feet of the boundary.
“It is noteworthy that though injury to the claimant is occasioned by a contravention of these provisions, her cause of action is not rooted in a violation of the Ordinance and its Regulations but in the tort of public nuisance as she suffered particular damage over and above the general inconvenience suffered by the public, evident by the dimensions of the building, its connection to the fence and boundary and the overhang over her property… In this regard the acts of the defendants are an actionable public nuisance,” the Judge ruled.
In the circumstances, Justice Sewnarine-Beharry declared in her written decision, that the defendants are bound by the Public Health Ordinance and its Building Regulations, which prohibits the construction of any building within four feet of a boundary of their property.
She also ordered “a mandatory injunction directed to the defendants and each of their servants and/or agents to demolish and remove all and any part of the building… which may lie within four feet of its western boundary… [adjacent to the property] owned by the claimant…”
The High Court Judge also granted Orders for the defendants pay Balram damages in the sum of $750,000 for trespass and another $750,000 in damages for nuisance. The claimant was also awarded costs in the sum of $250,000 to be paid by the defendants on or before August 31, 2023.