An injunction designed to prevent private estate homeowners from trespassing and “committing a nuisance” on their neighbour’s land has been upheld in the Supreme Court.

Simon and Deirdre Storey applied to quash the order, related to Samuel Andrew Banks’s property at Inglewood Lane in Paget.

But Puisne Judge Larry Mussenden found the injunction was properly granted by him based on the risk of “imminent” damage to the neighbouring site.

In a ruling published online, he said that the Storeys owned their Inglewood Lane property — next to that of Mr Banks — since 2012 and undertook work on damaged steps in 2016, then in 2018 made repairs to their kitchen patio.

Mr Justice Mussenden added that the pair were formally advised by the Department of Planning in December 2021 that they should have sought planning permission before the improvements were carried out.

He wrote that Mr Banks — the husband of former United Bermuda Party premier Dame Pamela Gordon Banks — first became aware in June 2021 that his neighbours “had undertaken extensive works” on his property.

The judge said that these included the removal of “numerous mature trees and other vegetation”.

He also listed excavation of a roadway over the Storeys’ property — a portion of which extended on to Mr Banks’s land and was referenced in the ruling as the “disputed roadway” — as well as construction of an extension to the Storeys’ house, which was partly on the neighbouring plot.

Mr Justice Mussenden wrote that a planning application was lodged by the Storeys in March and that they posted a site notice of their intention to develop land.

A description said that the works related to the proposed replacement of damaged landscape stairs and patio regrading but indicated that the application was “retroactive”.

Mr Justice Mussenden said that Mr Banks "considered that the planning application contemplated further unauthorised encroachments on to his land as well as the likely use of the disputed roadway”.

The ruling outlined a string of correspondence between legal teams on March 31 and April 1, 2022 before a court hearing that afternoon when the application for injunction was granted.

Mr Justice Mussenden wrote that lawyers for the Storeys said they could not attend the hearing and make submissions in line with their professional duties.

He explained that in their appeal to have the injunction dropped, the Storeys argued it should be discharged because, among other things, Mr Banks "did not satisfy the urgency requirements“ to make an ex parte application, which is made on behalf of only one party.

It also was claimed that Mr Banks provided incorrect information to the court.

The judgment said that Jeffrey Elkinson, for Mr Banks, argued the injunction was “properly obtained” and that his client had a right to seek it.

Mr Justice Mussenden wrote: “As background, I granted the injunction on the basis that the plaintiff had an apprehension that work could start soon after the date of the notices being posted; that although the application was for retroactive work, some work may still be required to be performed so that the defendants were in compliance with planning requirements; and there was a likelihood of immediate trespass onto the disputed roadway to perform further work.

“Also, as background, I note that the plaintiff had at the forefront on his mind, just prior to the grant of the injunction, the previous conduct of the defendants trespassing on the plaintiff’s property including the excavation and use of the disputed roadway, and the allegations of construction on part of the plaintiff’s property, the dumping of mulch on the property, the removal of vegetation, the replanting and maintenance of other vegetation.”

He said that, based on the evidence, the need for an injunction was urgent.

Mr Justice Mussenden found that Mr Banks “gave full and frank disclosure” to the court.

He added: “I granted the injunction based on the quia timet basis, namely that the plaintiff held the apprehension that there was going to be trespass and damage to his property.”

The judge said: “The important link that I make between the notice and the likelihood of imminent work is that it is clear that the defendants have continuously acted over a period of years to conduct construction or landscaping work on their property and the plaintiff’s property.

“The activity is a long list, some of which was clearly without planning permission, which is not disputed, starting with the stair repairs, then the patio repairs, the removal of numerous mature trees and other vegetation, the replanting of vegetation, the excavation of the roadway which includes the disputed roadway, the placement of the shipping container, the works connected to the shipping container including the boring of an extraction well, the presence of a backhoe and other construction equipment on their property and some other works referred to in the evidence.

“The defendants strike me as property owners who are active, determined and wish to move on with such projects.

“Thus, the posting of the notice persuades me that the defendants had a focus on and were continuing in their construction activity and, as such, further work and damage as described below was imminent.”

Future potential developments listed in a letter to the planning department included an electric access gate and new driveway surfacing.

Mr Justice Mussenden found that retroactive planning applications made by the Storeys showed they were “not opposed to carry out works first and then seek planning permission later”.

He added: “Thus, in my view, there was a substantial likelihood of damage to the plaintiff’s property, namely the continued and extensive use of the disputed roadway that, according to the plaintiff, did not exist previously on the plaintiff’s property and which has turned an area of vegetation into a roadway capable of handling heavy construction machinery.”

The judge found that the injunction was properly granted in a quia timet context and there was "no present need to discharge it“.

He added: “The injunction serves to prevent trespass by the defendants on the plaintiff’s property whilst still allowing the defendants to lawfully perform any works on their property as necessary.”

Mr Justice Mussenden refused the Storeys’ application.

Lawyers for Mr Banks filed a writ of summons last August that sought a permanent injunction to restrain the Storeys “from trespassing or creating a nuisance” on his property.

He claimed for damages, an order for demolition of “any construction wrongfully erected or placed” on his land and a mandatory injunction requiring the Storeys to restore Mr Banks’s property “to its original state as existed prior to the defendants’ wrongful acts”.

The writ alleged that the Storeys trespassed on Mr Banks’s property and the removal of trees and vegetation resulted in “consequential destruction of the natural habitats for birds and other wildlife”.

It claimed that the defendants would have known that area of their neighbour’s property was zoned as Coastal and Woodland Reserve Conservation Area in line with the Bermuda Plan.

In notes used for earlier hearings, Mr Elkinson said that the Storeys “sought to surreptitiously acquire” about 6,000 to 7,000sq ft of property.

The wider case, in the Supreme Court’s civil and commercial jurisdiction, is expected to go to trial later.

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