Wollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411
The availability of an injunction for trespass in the absence of damage
Facts
The defendant was a building company involved in a construction project which required the use of a crane. When the crane was erected, in the only position available for it, the jib passed over the claimant’s property when the crane was in use and occasionally when it was not in use. The jib passed some 50 feet above the property and the claimant acknowledged that it caused no damage or risk thereof. The defendant admitted trespass and offered a significant sum of money to be allowed permission to operate the claim. The claimant refused the offer and began proceedings for an interim injunction preventing the trespass.
Issue
The issue on these facts was whether an injunction prohibiting trespass was available where no damage was caused by the defendant and there was no risk of any such damage occurring.
Held
It was held that in circumstances where no damage occurs, the only remedy available to a claimant is an injunction and that on the nature of the claim and the fact that trespass was occurring, an injunction ought to be granted. However, because of the nature of the claim and the surrounding circumstances, the court can exercise its discretion to suspend the injunction. The result on these facts was that the injunction was suspended for a period that allowed the defendant to complete the work that required the use of the crane. This issue of whether this discretion is exercised is necessarily a question of fact in the circumstances of the case.
Updated 21 March 2026
This article accurately summarises the decision in Wollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411. The core legal principles remain good law: trespass to airspace is actionable without proof of damage, and a court may grant but suspend an injunction in appropriate circumstances. Readers should note, however, that the law on airspace trespass has developed further since 1970. In Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479, Griffiths J held that a landowner’s rights in airspace extend only to the height necessary for the ordinary use and enjoyment of the land and structures on it, qualifying any suggestion of unlimited upward ownership. More directly relevant to crane jib cases, the Court of Appeal in Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173 confirmed that oversailing by a crane jib constitutes trespass, consistent with Wollerton, but also noted the discretion point more fully. The article’s description of the remedy as solely an injunction where no damage occurs should be read with care: damages in lieu of an injunction under the court’s equitable jurisdiction (now under s.50 of the Senior Courts Act 1981) remain available, and courts will consider the well-known criteria from Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, as subsequently refined, when deciding whether to award damages instead. The article is broadly accurate as a summary of the 1970 decision itself, but students should be aware of this wider legal context.
