THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
BRITISH VIRGIN ISLANDS
BVIHCV CASE NO. 0189 of 2007
FLAGSHIP PROPERTIES LIMITED
Mr. Gerard Farara Q.C. for the Claimant
Mrs. Willa Liburd Tavernier and Mr. Kerry Anderson for the Defendant
2009: October 13
 Joseph – Olivetti J: Businessmen are constantly on the alert for ways to maximize their
profits. In this case both Mr. Betteto Frett and Mr. Gordon Nissen, the owner of Flagship
Properties Ltd, “Flagship”, were bent on doing just that and, no doubt, so too was Ms.
Eleanor Smith through her companies, Melvina Owneco Ltd, “Melvina”, and Turquoise
Waters Ltd “Turquoise”. Melvina and Turquoise held Crown leases of land at Frenchman’s
Cay. Turquoise sold its shares to Mr. Betteto Frett and he operates a marina on Turquoise’
premises. Melvina sublet its neighbouring property to Flagship, which continued to operate 2
docks and a shipyard there. Flagship subsequently changed its mechanism for hauling
boats from a carriage and railway system to a concrete ramp or slipway and hydraulic
machinery and Mr. Frett claims that by so doing Flagship has created a nuisance. Flagship
maintains that the ramp which they built does not constitute a nuisance.
Issue for determination
 The main issue as I see it is whether Flagship’s ramp constitutes an actionable nuisance
entitling Mr. Frett to relief by way of damages and /or an injunction.
 I shall consider the applicable law first. Both parties agree that this is an action in private
nuisance. They relied on the exposition of the principles in Clerk & Lindsell on Tort
“Private nuisance: Just as in issues of public nuisance, modern statutory control
has had an effect in diminishing the role of private nuisance as a regulation of
duties between neighbours. Refusal of planning permission may prevent many
activities which would otherwise be a nuisance, but the tort of nuisance still
provides sanctions against excessive interferences from activities which are
not in themselves unlawful or unpermitted by public control over the use of
property. The acts which constitute public nuisances are all of them unlawful acts.
In private nuisance, on the other hand, the conduct of the defendant which results
in the nuisance is, of itself, not necessarily or usually unlawful. A private nuisance
may be and usually is caused by a person doing, on his own land, something
which he is lawfully entitled to do. His conduct only becomes a nuisance when the
consequences of his act are not confined to his own land but extend to the land of
his neighbour by:
a. causing an encroachment on his neighbour’s land, when it closely resembles
b. causing physical damage to his neighbour’s land or building or works or vegetation
upon it; or
c. Unduly interfering with his neighbour in the comfortable and convenient
enjoyment of his land.
It may be a nuisance when a person does something on his own property which
interferes with his neighbour’s ability to enjoy his property by putting it to profitable
use. It is also a nuisance to interfere with some easement or profit or other right used
or enjoyed with his neighbour’s land.”
 Mr. Farara Q.C., learned counsel for Mr. Frett, submits that the alleged nuisance
complained of falls within the ambit of category “c” above, With respect to this category
Clerk & Lindsell states at para.19-10 :-
“Interference with enjoyment: In nuisance of the third kind, “the personal
inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal
freedom, anything that discomposes or injuriously affects the senses or the
nerves”, there is no absolute standard to be applied. It is always a question of
degree whether the interference with comfort or convenience is sufficiently serious
to constitute a nuisance. The acts complained of as constituting the nuisance,
such as noise, smells or vibration, will usually be lawful acts which only become
wrongful from the circumstances under which they are performed, such as the
time, place, extent or the manner of performance. In organized society everyone
must put up with a certain amount of discomfort and annoyance caused by the
legitimate activities of his neighbours. Ordinary domestic use of premises therefore
cannot constitute a nuisance, even though interference with the enjoyment of
neighboring premises is caused, if that interference results solely from
construction defects for which the defendant is not responsible… the courts in
deciding whether an interference can amount to an actionable nuisance have to
strike a balance between the right of the defendant to use his property for his own
lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his
property. No precise or universal formula is possible, but a useful test is what is
reasonable according to ordinary usages of mankind living in a particular society”.
 And para. 19-22 reads:-“Nuisance primarily a wrong to occupiers of land: a private
nuisance is primarily a wrong to the owner or the occupier of the land affected. The
correctness of this proposition was emphatically reaffirmed by the House of Lords
in 1997 in Hunter v Canary Wharf Ltd2
(1997) A.C. 655.
… Lord Goff of Chieveley considered that
“any…departure from the established law on this subject” would cause uncertainty due to 4
“the problem of defining the category of persons who would have the right to sue”.
Nevertheless, a person who is merely “de facto in exclusive possession” can
 From the authorities cited including Greenidge v Barbados Light & Power Co. Ltd3
Hunter, it is clear that in determining whether Flagship is liable in nuisance I must have
regard to the factual circumstances of the particular case including: (i) the ordinary usage
of persons occupying the vicinity;(ii) the time and place where the construction was carried
out;(iii) the seriousness of the harm caused by the construction;(iv) whether Flagship acted
maliciously or in the reasonable exercise of its rights, and, (v) whether the construction is
transitory or permanent.
 In brief, Mr. Frett has to prove that Flagship’s construction was an unreasonable,
excessive or extravagant use of its property that caused damage to Mr. Frett’s use or
enjoyment of his property.
Discussion and Findings
 From the pleadings, the gravamen of Mr. Frett’s claim is that the structure built by Flagship
on the seabed, in the vicinity of one of his docks, has prevented him from using the
western side of the dock to berth mega-yachts as he had done prior to the construction
and that as a result he has lost and will continue to lose earnings, which is claimed to be a
minimum of $604.80 per day for the use of the western side of the dock.
(1975)27 WIR 22.5
 We heard evidence from Mr. Frett himself and Mr. Nissen, who testified on behalf of
Flagship. In addition, both parties relied on salient extracts from the report of Blok Marine
Construction (“the Blok Report”) which had been commissioned by Flagship in November
2008. It is noted that Blok’s remit was to determine whether the ramp facilities complied
with the plans approved by the building authorities in February, 2008.
 Melvina and Turquoise are both BVI companies. Prior to August 2005 they were both
owned by Ms. Eleanor Smith and family. Turquoise held a 99 year lease from Government
of Parcels No. 120/1 and No.132/1 West End Block 2033B at Frenchman’s Cay and
Melvina had a 99 year lease from the Government of Parcels 116,117 of Block 2034 B and
Parcel 151 of Block 2033B West End.
 On 31 August 2005 Mr. Frett bought all the shares in Turquoise for US$1.5million. Prior to
acquiring Turquoise, Mr. Frett operated a marina and docking facilities on Parcel 132 as a
tenant of Turquoise and continued exclusively to occupy and operate the same business
on the premises after he bought Turquoise. This was not disputed and I find that this gives
Mr. Frett a sufficient proprietary interest in the premises to maintain this action.
 Turquoise operated a shipyard on Parcel 151, which is immediately adjacent to
Turquoise’s premises and to Parcel 132 in particular. It used a system of rails and
carriages to haul out boats (“the railway”). That system was in existence since the 1960’s.
The railway consisted of three rails anchored on the seabed beginning from the edge of
the land straight out to sea. A system of carriages traveling along this railway was used for
hauling boats out of the water. The work on the boats was done at the waters edge whilst 6
the boat was sitting in the carriage. Only one boat could be hauled out at any one time.
The operation was time consuming and lasted several hours.
 Whenever a boat was hauled out Mr. Frett would facilitate his neighbours by temporarily
relocating any vessel which was berthed on the western side of one of his docks which
dock was nearer to Parcel 151, “the Dock”. When the operation was over, Mr. Frett would
return the boat to the original berth. He never complained of this.
 In 2006, Melvina agreed to sublet Parcels 116, 117 and 151 to Flagship and Flagship with
Melvina’s consent, in or about 19 May 2007, began to convert the railway system into a
ramp to be used with hydraulic equipment for hauling out boats, particularly catamarans.
First, in or around May 2007, Flagship moored a barge in an area, which Mr. Frett says
impeded him in the use of the western side of the Dock. He became concerned and spoke
with Mr. Benjamin Nissen, the general manager of Flagship, and also with personnel of the
company, Meridian Construction Company Limited, which was actually engaged in the
construction, in an effort to have them move the barge with no success.
 Mr. Frett alleges that the Dock, which is in the immediate vicinity of the ramp, is a doublesided pier with a capacity to berth 16 vessels – eight on each side, stern to. He also claims
that the agreement for sale with Turquoise provided for the extension of the Dock by the
installation of a “T” section on the end and that Ms. Smith had told him that the necessary
permission for doing so was in place. Ms. Smith was not called and therefore that evidence
is hearsay and no weight can be attributed to it. Further, he did not produce any such
planning authorizations. 7
 Subsequently, Mr. Frett noticed that piles had been driven into the seabed in the vicinity of
the Dock and that they projected up to 20 feet out of the water. In his view these piles
posed a hazard to boat operators. He saw a number of planks on Flagship’s dock which
he thought were placed there in apparent readiness for installation on the extended rails.
He testified that the construction of the rails for the carriage way and the positioning of the
barge in the water obstructed access to the western side of the Dock and that except for
small boats, the western side is now totally unusable by operators of vessels. Mr. Frett
reported the matter to the planning authorities.
 Subsequently, on 9 July 2007 the planning authorities served a Compliance Notice on
Flagship. I accept Mr. Nissen’s evidence that Flagship ceased the work and did not
resume until after planning permission had been obtained, as there is no evidence that the
planning authorities took further action against Flagship, which I am sure they would not
have hesitated to do had Flagship disobeyed the order, as Mr. Frett testified. Flagship
removed the barge from the area 48 hours later.
 Melvina subsequently formally sub-let Parcel 151 to Flagship on 13 July 2007, and
thereafter applied for, and obtained Government’s approval for the use of the seabed
underlying the railway although it did not disclose to Government that they intended to
dismantle the railway and to build a ramp instead. Flagship applied for and obtained
planning permission for the ramp on 16 January 2008 and the requisite building permit was
issued on 20 February 2008. Thereafter Flagship continued construction and completed
the ramp within a short space of time, namely twelve days between mid-March and the
beginning of May 2008. 8
 Mr. Farara took issue with whether or not the Government granted a lease of the seabed
underneath the old railway to Melvina and so whether Flagship had any right to use that
area of the seabed.
 However, It is not necessary in this case to determine whether the head lease legally
effected a grant of the seabed in that area as it is sufficient that the head landlord, the
Government, expressly confirmed that it intended to grant a lease of the seabed and no
doubt if the Government sought to recant from that position it would promptly be met with
issues of estoppel. Suffice it to say that I am satisfied that Flagship, through Melvina, has
permission at least to use the area and that Flagship acted lawfully in exercise of its rights
in removing the railway and substituting it with a ramp instead.
 I accept Mr. Nissen’s evidence that upon enquiry of the planning authorities, Flagship was
of the view that it did not need planning permission and so they began the work without
planning permission. I also accept that Flagship was mindful not to cause any undue
inconvenience to Mr. Frett and commenced work in the off season and that they spoke to
Mr. Frett and obtained his consent to the mooring of the barge. However, Flagship did not
tell Mr. Frett the scope of the works and I find that Mr. Frett did not give permission to
Flagship for the construction of the ramp, not that they needed his permission.
 In any event, Mr. Nissen’s evidence about Mr. Frett granting permission for the
construction of the ramp is hearsay, as he readily admitted that his son, Benjamin, was the
person who spoke to Mr. Frett and Benjamin did not give evidence. I acknowledge the
gallant effort of Ms. Tavernier, counsel for Flagship, to pray in aid sections 69 and 70 of 9
the Evidence Act 2007, which make exceptions to the hearsay rule, but I uphold Mr.
Farara’s submission that the sections do not apply and that in any event counsel for
Flagship did not give the requisite notice of her intention to rely on hearsay which is a precondition to the application of the sections.
 To my mind, it is pertinent to consider closely the nature of the development undertaken by
Flagship in constructing the ramp and how it differed, if at all, from the pre-existing railway
system, in order to determine if Flagship is liable in nuisance, as alleged.
 It is readily apparent that when he swore his witness statement on 14
October 2008, Mr.
Frett did not know exactly what was the nature and scope of development that Flagship
had carried out on its premises and on the seabed. And the scantiness of his knowledge
remained scarcely unchanged at trial. However, Mr. Frett accepted, that Flagship had
removed the carriage and railway system and replaced it with a concrete ramp and
hydraulic machinery. Further, that the piles no longer project 20 feet out of the water but
were driven into the seabed within two weeks of their initial placement to form the support
for the ramp. He also accepts that the barge was moved since in or about July 2007 as its
presence was temporary, being merely to assist in the construction of the ramp.
 Mr. Frett did not give us any reliable evidence as to the dimensions of the railway and how
those differed from the ramp with which it was replaced. He gave no evidence of the
manner in which the western side of the Dock was obstructed save to say that the captains
of the mega-yachts, which he said berthed there prior to the ramp, will be reluctant to drop 10
anchor in the vicinity of the ramp. Of the evidence of those numerous mega-yachts he only
referred to one, “The Talon”, in examination in chief.
 And despite his evidence that the western side of the Dock is unusable by mega-yachts
since the ramp Mr. Frett was forced to concede in cross- examination that the Clan VI was
moored at the western side of the Dock since the construction of the ramp but maintained
that it is not a mega-yacht but a sailing yacht despite the fact that it exceeded 90 ft in
length and he had described a mega-yacht as being in excess of 90 feet.
 In addition, Mr. Frett admitted that he kept records and receipts, yet he did not produce a
single document to establish that mega-yachts used his facilities prior to the construction
of the ramp and, in particular, that the mega-yachts used the western side of the Dock.
Further, Mr. Frett called no evidence from any of the many captains of mega yachts who
he claimed used the Dock prior to the construction of the ramp and who allegedly would
encounter difficulties in using the western side of the Dock now or from any seafarer
familiar with the area.
 Mr. Nissen testified, and I accept that, contrary to first impressions, the railway consisted of
three metal rails anchored to the seabed by means of concrete sleepers and cement bags,
structures and not merely three rails sitting unanchored on the seabed. I find that the rails
extended about 100 feet into the sea straight along the seabed and were placed about 20-
25 feet apart; 6 feet above the seabed. 11
 The ramp, on the other hand, although made of concrete, is 21 feet wide and extends
about 69 feet into the sea, it is about 90 feet shorter than the railway and ends just beyond
the bulkhead of the dock. The ramp has a horizontal clearance of a minimum of 34 feet 3
inches from the western side of the Dock. The railway on the other hand had a ten-foot
clearance. The level of the ramp above the seabed is approximately 3 feet though the
height is not uniformed throughout.
 Further, the Blok Report, states that the change from the railway to the ramp, was
favorable to Mr. Frett, as it angles away from the Dock, whereas the railway angled toward
the Dock; and, in addition, the ramp does not extend as far into the water as the railway
did and the lifting mechanism is mobile, and does not stay in the water permanently. Mr.
Frett appears to have accepted that.
 In addition, on Mr. Frett’s own evidence, the area of the Dock near the bulkhead, which is
closer to the ramp, is only used by small boats or dinghies because of the sea level. How
then can he maintain that the area was used by mega-yachts?
 Having regard to its position, the construction materials and to its dimensions, I find that
the ramp occupies a significantly smaller area of the seabed than did the railway. It poses
no greater interference with Mr. Frett’s use of the western side of the Dock than did the
railway. In fact, in some ways, Mr. Frett can be said to be better off, as he no longer has to
move boats moored at the western side of the Dock to accommodate a haul out. 12
 Mr. Frett also said that the boats dock stern first at the Dock and used anchors, not
mooring balls or other floating devices to secure their bows. He said that the captains of
the vessels would be reluctant to let down their anchors in the vicinity of the ramp.
However, it strikes me that the same fears would have applied to anchoring in the area of
the railway, and this goes against his evidence that mega-yachts berthed on the entire
western side of the Dock.
 Therefore, I find that Mr. Frett has failed to establish that he has eight berths to
accommodate mega-yachts on the western side of the Dock as claimed or that he even
has planning permission for a “T” extension. These, no doubt, are matters to be finally
settled between Mr. Frett and Ms. Smith.
 I note also the existence of a small ramp used by the public between the Dock and the
ramp. This also supports my finding that the western side of the Dock in the vicinity of the
ramp or the pre-existing railway did not accommodate mega-yachts and is more suitable
for small vessels.
 Further, the western side of the Dock is not wholly unusable by mega–yachts as Mr. Frett
claims. Mr. Nissen testified, and I accept his evidence, that he saw the Clan VI there in
January 2009, moored at the far end of the Dock. It is a mega-yacht having regard to its
dimensions as given by Mr. Nissen, and those dimensions were not challenged.
 In my view, in all the circumstances, the construction of the ramp was neither an
unreasonable nor an excessive or extravagant exercise of Flagship’s property rights. 13
Flagship acted reasonably. The law recognizes that a man is entitled to build on his own
land and this right is not restricted by the fact that the building may of itself interfere with
his neighbor’s enjoyment, (see Hunter v Canary Wharf per Lord Goff of Chieveley at
 Also, Flagship did not act unreasonably during the construction phase. Construction
commenced during the slow season. This, according to Mr. Nissen, was deliberate in order
to minimize any possible disruption to activities in the area.
 In conclusion, for the foregoing reasons Mr. Frett has failed to establish that Flagship has
created and is continuing a private nuisance by its construction and use of the ramp.
Accordingly, Mr. Frett’s claim is dismissed. Mr. Frett is to pay Flagship prescribed costs in
accordance with CPR Part 65.5. According to CPR 65.5 (2) (b) (i), in determining the costs,
the value of the claim is to be decided, in the case of a defendant, by the amount claimed
by the claimant in his claim form, and by CR 65.5 (3), the general rule is that the amount of
costs to be paid is to be calculated in accordance with the percentages specified in column
2 of Appendix B against the appropriate value.
 In this case, Mr. Frett claimed damages of $604.80 per day. If Mr. Frett had been
successful the total damages would be calculated from the date, upon which the
construction of the ramp began 19 May 2007, to the date of the trial, 13 October 2009.
Therefore, the total damages claimed is $604.80 x 877 days= US$530,409.60. Therefore
the value of the claim for the purposes of Appendix B is US$530,409.60. 14
 However, the court has a discretion in awarding costs. Costs must be fair and reasonable
having regard to the matters set out in Part 64.6. A costs award is not meant to be a
windfall. In all the circumstances this was not a complex case and I am of the view that it is
reasonable to award only a percentage of the prescribed costs. However, before
exercising this discretion, I would invite counsel for Flagship to submit a schedule for costs
and to serve same on counsel for Mr. Frett, within seven days hereof. The matter will be
considered on submissions on paper if the parties do not settle sooner.
 I thank counsel for their assistance and in particular Ms. Tavernier. The case showcased
her careful preparation, diligence and understanding of the law, and, her demeanor
throughout reflected professional courtesy and competence. She has set a very high
standard for her peers to aspire to and I venture to think that her mentors would be far
from unhappy with her.
Resident High Court Judge
British Virgin Islands