Ipsofactoj.com: International Cases [2001] Part 7 Case 15 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Rees

- vs -

Skerrett

LORD JUSTICE WALLER

MR JUSTICE LLOYD

23 MAY 2001


Judgment

Mr Justice Lloyd

  1. Mr Rees owns a property whose address is 14 Hastings Street, Plymouth. With his wife, who has died since the judgment below, he rented it first, and then bought it in 1983. At that time it was a terraced property, adjoined by another on each side. In February 1990, however, the property on one side, known as number 14A, was demolished. That is the origin of the litigation in which this appeal is brought.

  2. Mr Rees claims to have suffered damage to his property as a result of the demolition. With his wife he sued Mr Skerrett, the First Defendant, who was the owner at the time of the demolition, and also Mr Solomon, who later became the owner, of 14A. In the county court they satisfied His Honour Judge Overend that they were entitled to a right of support from 14A, but not that they had suffered any damage as a result of the withdrawal of that support, nor that Mr Skerrett was liable in either negligence or nuisance apart from the withdrawal of support. They were awarded part of their costs against each Defendant, but no damages.

  3. They brought this appeal against both Defendants, but as against the Second Defendant, Mr Solomon, the appeal has been compromised. Thus we are now only concerned with Mr Rees as Appellant and Mr Skerrett as Respondent. Mr Skerrett is a solicitor. He served a decidedly pugnacious Defence and Counterclaim, but he appeared at the trial only to ask for an adjournment on the grounds, we are told, of ill health. The judge refused that application and Mr Skerrett then withdrew and took no further part in the proceedings. He has not appeared nor been represented on the appeal.

  4. The judge’s conclusion that a right of support existed in favour of 14 over 14A has not been challenged. The questions on the appeal are whether the judge was right to hold that none of the damage which has been suffered is attributable to the withdrawal of the support to which Mr Rees has a legal right, and whether he was right to hold that Mr Skerrett was not otherwise liable in negligence or nuisance for that damage.

    THE FACTS

  5. The precise circumstances in which the two adjoining properties were built are not clear and do not matter. Both had existed for around a hundred years by 1990. At the front, facing Hastings Street, number 14 is a 3 storey building (though a fourth floor has now been created out of the loft) as was 14A, effectively of the same height as 14. At the back, each of the two properties extended further back than some other houses in the terrace. Number 14 has a 2 storey extension at the back, with a conservatory on top. Number 14A had a substantial 3 storey building at the back, though the top storey was of wood. The dividing wall between the two properties was one common wall, though it had not been the subject of any party wall award or agreement. It seems to have been assumed that half of the wall belonged to each property. When the demolition took place the whole of the common wall was left in place.

  6. Mr Skerrett bought 14A on 16 January 1990. A dangerous structure notice had been served by the local authority, and planning permission seems already to have been granted for a new building, consisting of flats, to be built on the site. On 18 January 1990 Plymouth City Council served a demolition order under the Housing Act 1957, together with a notice to the owner under the Building Act 1984. The latter notice required him, within 30 days after starting the demolition work, among other things, to shore up any adjoining building, and to weatherproof any surfaces of any adjacent building which were exposed by the demolition.

  7. The demolition work was carried out during February 1990. The work seems to have been done in a thoroughly inconsiderate and unsatisfactory way, and the site was left in a poor state. Only token gestures were made as regards support for number 14 and weatherproofing the exposed wall. Nothing was done as regards implementing the planning permission for a new building, so the flank wall of number 14 remained exposed and, in effect, unsupported. Mr Rees later obtained a visual improvement grant from the local authority with which he was able to have some rendering done to the flank wall. This makes it look better, and may have had some beneficial effect, but Mr Rees’ expert, Mr Cooper, did not consider that the work was very effective. Mr Skerrett sold 14A to a company which later went into liquidation. In 1994 the mortgagees sold 14A to Mr Solomon, the Second Defendant.

  8. This action was started in 1995. In April 1996 Mr Rees got an expert report from a structural engineer, Mr Cooper. According to this report, the flank wall had suffered considerable damp penetration since the demolition of 14A, directly attributable to the inadequate precautions taken at the time of the demolition. Mr Cooper expressed the opinion that there had been some structural movement since the demolition, that the wall was by then not adequately supported, as it had been before the demolition, and that a scheme of remedial works was needed in order to redress the fact that the flank wall was not properly restrained as regards lateral movement, and to deal with, and prevent for the future, damp penetration. With this advice, Mr Rees amended his Particulars of Claim. Mr Skerrett had served a Defence and Counterclaim in October 1995. Apart from matters which are not now in issue, he denied negligence in the demolition and denied that number 14 was left unsupported or exposed. Mr Rees served a Reply and Defence to Counterclaim, but I do not need to mention any particular point from that pleading.

  9. At the trial, evidence was given by Mr Cooper, and by another expert, Mr Hancock, for the Second Defendant. The judge preferred Mr Cooper’s evidence where they were in conflict, but Counsel for the Second Defendant was able to cross-examine Mr Cooper in a way which led the judge to say this:

    Crack damage was observed by Mr Cooper. His view was that this damage was probably more likely to have been caused by the effect of wind, in particular suction to part of the gable wall, rather than by failure to provide lateral support. He agreed that the lateral support provided was minimal.

  10. I will set out some of the material from Mr Cooper’s second report which provided the basis for this, and which enables the point to be understood somewhat more fully. But before I do so, I should quote from Mr Cooper’s first report as to the condition of the property, and in particular the flank wall. His opinion can be seen from three paragraphs, as follows:

    7.2

    In addition to damp penetration problems it is also clear that the flank / gable wall has undergone some structural movement since the demolition of the adjoining property. The writer’s investigation has revealed that the wall is effectively free-standing with no adequate restraint from any of the intermediate floors or the roof structure over the entire terraced section of the property.

    7.3

    Bearing in mind the substantial window and door openings in the front elevation immediately adjacent to the flank wall and the even larger opening in the rear elevation wall of the terraced section of the property which permits the passage of the staircase, the wall is effectively a 12m high by 11m long free-standing panel of masonry of approximately 550mm thickness. BS5628: Part 1: 1978, being the relevant British Standard Design Code of Practice for the masonry walls, in clause 36.3 limits the height of a free-standing wall to 12 times the thickness. The height of this wall is almost 22 times the thickness and without any lateral restraint it can only be described as unstable.

    7.5

    Any competent engineer asked to advise on the demolition works is likely to have recommended that buttressing be provided to the wall prior to the demolition works being carried out and that this buttressing should have extended over the entire height of the building and been maintained in position until such time as alternative measures such as the redevelopment of the site were complete. Likewise the design for any redevelopment should have taken full account of the need to provide restraint to the existing wall and the new structure should have been designed to carry the loads required to ensure its stability.

  11. His second report, dated 25 June 1997, was written in answer to a report from a Mr Bird, I assume prepared on behalf of the First Defendant, which we do not have, and whom the judge did not see. The contents of that report are therefore a matter of inference from Mr Cooper’s comments. This is somewhat unsatisfactory, since we can understand the context only from what Mr Cooper does say by way of comment on, and prompted by, the other report. Clearly Mr Bird had commented on wind loading on the wall, and had done so in ways which suggested that this was not a serious factor. On this aspect, Mr Cooper said that Mr Bird had applied inappropriate factors, and that "the wind loading to be applied to the wall is significantly greater than Mr Bird has assumed". He went on:

    4.2.

    3

    Furthermore, the wall is effectively partially buttressed against positive wind pressures on the party wall in that the floors will restrain movement in the inward direction. The critical case for wind loading is therefore the suction case where the wind attempts to pull the wall on to the site of 14A Hastings Street. Mr Bird has given no consideration whatsoever to this load case nor to the additional effect of internal positive pressures which may occur within the building of number 14 and worsen the situation. Consequently the bending movement calculated as existing within the wall has been greatly underestimated.

    11

    Mr Bird then proceeds into pure fantasy choosing to ignore totally the advice and recommendations of British Standard CP3: Chapter 5: Part 2: 1972 being the code of basic data for the design of buildings, Chapter 5 relating to loading and Part 2 specifically to wind loads. He suggests that eddies will form resulting in zones of suction and pressure if the wind were to blow away from the gable wall. He further suggests that it is not possible to ascertain the loading on to the wall in this circumstance other than by the production of a detailed model analysis using coloured smoke traces in a wind tunnel.

    12

    This is absurd as such model analyses have been undertaken and a great wealth of information is available to the designer to accurately predict the forces which might be applied to the gable. This wealth of information indicates that there is undoubtedly an overall suction on the gable wall in the event of the wind blowing away from the wall. Moreover a far more severe loading case would occur when the wind blows parallel to the gable-wall, in either direction. The same wealth of information indicates that in this case the suction will be 2 to 2.5 times as much.

    13

    Incidentally in comparison with the positive pressure due to wind blowing on the face, the value of the suction in the circumstances of wind blowing parallel to the face is likely to be in the regions of 0.7 to 1.0 times the positive pressure. This is both significant and critical.

    5.1.

    The primary reason for concern over the stability of the party wall to number 14 Hastings Street after the demolition of the property known as 14A Hastings Street is that this wall has now become subjected to wind load from which it would have been sheltered previously. Additionally the structure of 14A would also have provided lateral restraint to the wall with the floors arresting any outward movement of the wall which might occur.

  12. Thus, Mr Cooper’s opinion, taking the two reports together, was that the wall was unstable, as a result of the withdrawal of the lateral support which 14A formerly provided, and that, because of its lack of stability, when the wind blows either along the front of the terrace, from the direction of number 14 and past the empty site of the former 14A, or in either direction along the flank wall, it is exposed to, and has suffered damage through, structural movement and therefore cracking which is distinct from movement attributable to the sheer weight of the roof and the upper parts of the structure bearing down on the lower parts and forcing the unsupported and unrestrained wall outwards.

  13. The judge found that the crack damage was more likely to be attributable to suction damage by the wind. He found that 14A had provided some (though minimal) lateral support to 14, though not to the conservatory, and that an easement of support was established. He found that 14A had protected 14 from the weather for as long as it had provided support. He said that there had been a breach of the easement of support by reason of the demolition of 14A but that damage had not yet been suffered as a result of the withdrawal of the support. If and when damage was suffered in future an action would lie: see Midland Bank plc v Bardgrove Property Services Ltd (1992) 65 P&CR 153. But he refused to accept that the damage already suffered by 14 was attributable to the withdrawal of support, and he also refused to accept that Mr Skerrett had been under a common law duty of care to do anything by way of providing protection against the risk of the damage that in fact occurred.

  14. Mr Rees’ claim at trial was for damages amounting to some £40,000 (plus VAT), of which £23,000 was for structural work, £15,000 for damp-proofing work and £2,000 for related professional fees. As Mr Spens put it to us, part of the work is justifiable on his submission as to the right of support, but part has to be justified by reference to negligence or nuisance. I will therefore consider the two aspects of the case separately.

    THE CLAIM IN NUISANCE, BASED ON THE EASEMENT OF SUPPORT

  15. Mr Spens submits that the judge’s error on this aspect of the case lay in distinguishing between support given against the downward pressure exerted by the weight of the roof and structure of a building, which he called weight support, and support given against the effect, on an inadequately supported side wall, of the wind, not blowing directly on the wall, but blowing along the front of the house, or along the wall itself in either direction, which he called wind support. The judge made that distinction, and accepted a submission for the Second Defendant that wind support was not within the scope of the right of support; he said that this followed as a consequence of the Court of Appeal’s decision in Phipps v Pears [1965] 1 QB 76. I will come to that case shortly, but will start from earlier authority.

  16. Dalton v Angus (1881) 6 App Cas 740 is not the first case on rights of support but is the farthest back that it is necessary to go for present purposes. It was concerned with support to a building from adjacent land, rather than from an adjacent building. The Plaintiff’s building had collapsed after the Defendant’s contractors had dug down to create cellars next door. The very existence of the right of support was put in issue, one of the principal factors relied on against such a right being that, unlike all other easements, it was not generally possible for the servient owner to take any reasonable steps to prevent the acquisition of the right. If he has an adjoining building, he would have to demolish his own building and dig down, before the building next door had been standing for 20 years, to prevent it from relying on support from his property. Despite objection of that sort, the House of Lords held that a right could be, and had been, acquired, in the nature of an easement. Lord Selborne LC said this, at page 793:

    What is support? The force of gravity causes the superincumbent land, or building, to press downward upon what is below it, whether artificial or natural; and it also has a tendency to thrust outwards, laterally, any loose or yielding substance such as earth or clay, until it meets with adequate resistance. Using the language of the law of easements, I say that, in the case alike of vertical and of lateral support, both to land and to buildings, the dominant tenement imposes on the servient a positive and a constant burden, the sustenance of which, by the servient tenement, is necessary for the safety and stability of the dominant.

  17. Sixty years later, in Bond v Nottingham Corporation [1940] Ch 429 at 438-9, Sir Wilfred Greene MR said this:

    The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into decay. If it does so and support is removed, the owner of the dominant tenement has no cause for complaint. On the other hand, the owner of the dominant tenement is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour’s building. He is entitled to enter and take the necessary steps to ensure that the support continues by effecting repairs, and so forth, to the part of the building which gives the support. But what the owner of the servient tenement is not entitled to do is, by an act of his own, to remove the support without providing an equivalent.

  18. So far as both the court and Mr Spens are aware, in no previous case has the distinction drawn by the judge in the present case been made. This may be because the point has never been taken or has never arisen on the evidence. Mr Spens submits that what was at issue in Phipps v Pears was something quite different, and in particular a point which arose where no right of support had been found, and he says that the point at issue in the present case was not raised or argued. He therefore submits that the decision of the Court of Appeal in that case is no obstacle to his success, as the judge below thought it was.

  19. In Phipps v Pears, two houses had stood adjacent to each other since 1930. They did not share a wall, but their respective flank walls were flat up against each other. One got into disrepair, was the subject of a demolition notice by the local authority, and was then demolished. The flank wall of the surviving property had not been rendered or plastered, and was not so treated at that stage, so rain got in and froze, causing cracks and damage. The owner of the surviving property sued for damages for withdrawal of support, but the judge held that the two houses had not in fact supported each other but rather had been free-standing. The judge also rejected an argument that the surviving property had acquired a right of protection against the elements from the demolished property. That was the point at issue on the appeal. Mr Spens asks us to note that the damage alleged was from penetration of rain, rather than from the suction effect of the wind, and says that this is a material distinction, quite apart from the non-existence in that case of a right of support. Lord Denning MR gave the principal judgment. At [1965] Ch. 82-3 he said this:

    The case, so put, raises the question whether there is a right known to the law to be protected - by your neighbour’s house - from the weather. Is there an easement of protection?

    There are two kinds of easements known to the law: positive easements, such as a right of way, which give to the owner of land a right himself to do something on or to his neighbour’s land: and negative easements, which give him a right to stop his neighbour doing something on his (the neighbour’s) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards but also sideways on to the adjoining building or the adjoining land, and is thus doing something to the neighbour’s land, exerting a thrust on it: see Dalton v Angus. But a right to protection for the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution. Because the law has always been very chary of creating any new negative easements.

  20. He then drew analogies with the absence of a right to a view, and the absence of any right to the flow of wind, for example to a wind-mill, otherwise than through defined channels or to a defined aperture. He continued:

    The reason underlying these instances is that if such an easement were to be permitted it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development: see Dalton v Angus. Likewise here, if we were to stop a man pulling down his house, we would put a brake upon desirable improvement. Every man is entitled to pull down his house if he likes. If he exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun: see Cochrane v Verner. There is no such easement known to the law as an easement to be protected from the weather. The only way for an owner to protect himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees. Such a covenant would be binding on him in contract, and it would be binding on any successors who took with notice of it.

  21. Thus clearly Mr Rees cannot establish a right to damages as a result of penetration of rain into his flank wall by virtue of a separate easement. But Mr Spens says his case is different: he does have a right of support, and he claims that an aspect of that is the right to be protected against instability of number 14 resulting from the flow of wind which may cause the flank wall to be pulled away from the rest of the structure of number 14. The absence of this support has led to cracks, and the existence of those cracks has led to damp penetration, but that is different from the ordinary case, at issue in Phipps v Pears, of rain falling on the exposed wall, penetrating the un-rendered wall and causing cracking when it freezes. There is no indication that this separate cause of damage had been experienced in Phipps v Pears. Maybe the two houses were relatively sheltered from the wind, perhaps because Warwick, far inland, was less exposed to wind than Plymouth, by the sea. Phipps v Pears is not authority as to the scope of the right of support, but underlying the decision there is a policy that it is wrong to require too much of one of two adjoining owners as a consequence of or condition upon his entitlement to demolish his property.

  22. Phipps v Pears was considered in two later cases: Marchant v Capital and Counties Property Co Ltd, [1982] 2 EGLR 152 and Bradburn v Lindsay [1983] 2 All ER 408; I will come to the latter in the context of negligence. In Marchant the owner of the surviving property had a right of support from the demolished property, but the support had not been withdrawn. Her property suffered from the penetration of damp through the party wall, and she sued the owner of the demolished property. Sir Douglas Frank Q.C. rejected her claim, relying on Phipps v Pears. The case was then taken to the Court of Appeal, and is reported at [1983] 2 EGLR 156; there Mrs Marchant won, but on the basis of a party wall award, which had been before the judge only in an incomplete copy. The Court of Appeal held that the adjoining owner was in breach of the terms of the award as regards weatherproofing.

  23. The evidence before the court in the present case is not in the most satisfactory state, with Mr Cooper’s second report having been written in response to another which was not before the judge and which we do not have. Moreover, the tape of the proceedings was, regrettably, lost before being transcribed. We have a note of the judgment prepared by the Plaintiffs’ Counsel and solicitors, which has been seen, and not dissented from, by the Second Defendant’s Counsel and the judge, but it does not seem to be a full verbatim account. Also, we do not have any record of the oral evidence, so that we are limited to the expert’s reports, and what the judge said about them as recorded in the note of his judgment. Moreover, despite Mr Spens’ clear and fair submissions, I would have preferred, on novel points such as arise in this case, to have had the benefit of submissions from advocates on both sides.

  24. Nevertheless, considering the matter on the basis of the note we have of the judge’s judgment and what we do have of the evidence before him, I have come to the conclusion that what Mr Spens calls wind support is properly to be regarded as an aspect of the support which one of two adjoining buildings provides to the other. It is true that the cracking damage experienced in this case is not, on the judge’s findings, part of the consequences of the pressure exerted on the flank wall, vertically or laterally, by the weight of the other parts of the structure, and so it is not within the terms in which judges have previously spoken of the right of support, as quoted in paragraphs 16 and 17 above. But it is a respect in which the building is unstable, it is so because of the demolition of the structure which did provide support, and because the flank wall itself is subject to outward lateral pressures to which it would not have been subject while 14A was in place. It is also true that, whereas weight pressures operate on the structure continuously, being kept in equilibrium by the adjoining structure, the pressure from the effects of the weather is something to which, while the adjoining structure is in place, the dominant tenement is just not exposed. From that point of view, it occurred to me that the right which Mr Rees claims might more properly be called a right of protection from these particular effects of the weather than a right of support for anything. But on reflection it seems to me that it is correctly to be regarded as an aspect of support, even if what one is considering is the effect of the unsupported weight, largely if not exclusively, of the wall itself. As Mr Cooper said in his first report, the flank wall is too high and too long to be stable as a free-standing structure. Before the demolition it was supported and was therefore stable. Afterwards it is not supported and therefore it is not stable. Why is it not stable? Because it is too big, and therefore too heavy, to stand without additional support. It is the effect of the wind suction that has made the instability manifest by cracking in the wall, but it does not seem to me that it matters what particular circumstances produce the actual cracking which is the symptom and result of the instability caused by the withdrawal of support.

  25. It could be objected that for Mr Rees to be able to recover for this type of damage, caused by the withdrawal of support, would be anomalous when Mr Phipps might have suffered exactly the same damage, but could not recover. However the distinction is that Mr Phipps’ property had not been supported by the adjoining house, and it must therefore be presumed to have been stable as a free-standing structure, and not subject to this particular risk.

  26. For these reasons I have come to the conclusion that the judge was wrong to hold that the particular type of damage suffered in this case as a result of wind suction was not within the scope of the right of support. It may be that it was somewhat misleading to categorise it as something other than part of the destabilising effect of the pressure of the weight of the structure itself. As I see it, it is an effect of weight pressure, though of the weight of the wall itself, and is accordingly within the protection afforded by the right of support.

    DUTY OF CARE IN RELATION TO THE DEMOLITION OF ONE OF TWO ADJOINING PROPERTIES

  27. The finding that cracking damage to the flank wall was due to withdrawal of support does not establish that Mr Rees is entitled to the whole of the damages that he claims. That is because, as Mr Spens accepted, some of the damp penetration is likely to have been due to rain falling on the wall before it was rendered, and permeating through because of its unprotected state rather than penetrating into cracks caused by the loss of support already discussed. The evidence does not distinguish between damage resulting from one and from the other cause. Accordingly, Mr Spens seeks to show that Mr Skerrett was at fault not only in withdrawing support but also in failing to take steps to weatherproof the wall after the demolition. That is a proposition which he cannot base on his client’s property rights, because of Phipps v Pears. He therefore relies instead on showing that Mr Skerrett was under a common law duty to take these steps, and caused the loss by breach of the duty. No such duty was alleged in Phipps v Pears, so it is not authority against the existence of such a duty. Mr Spens submits that developments in the law since then show that such a duty is incumbent on an owner in the position of Mr Skerrett.

  28. He relies first on Leakey v National Trust [1980] QB 485. That case was concerned with a situation different from the present, because the Defendant had done nothing itself to cause or exacerbate the situation on its land which had led to damage to that of the Plaintiff. It established the proposition that an occupier of land owes a general duty of care to a neighbouring occupier, in relation to a hazard occurring on his land, whether natural or man-made, that duty being to take such steps as were reasonable in all the circumstances to prevent or minimise the risk of any injury or damage to the neighbour or his property of which the occupier knew or ought to have known, and that what is reasonable in all the circumstances will depend, among other things, on the cost of the steps which might usefully be taken and, viewed broadly, the resources available to the occupier and the neighbour.

  29. Leakey had already been decided when Mrs Marchant’s case came on for trial (see paragraph 22 above). However, there is no reference to Leakey in the judgment of Sir Douglas Frank Q.C., and Mrs Marchant appeared in person at the trial, so it can be assumed that the implications of the Court of Appeal’s then recent decision were not considered at all. Though the case went to the Court of Appeal, the basis on which it was argued there meant that the court did not have to consider any other possible basis of liability than the party wall award. That decision is therefore of no assistance either way.

  30. Leakey was, however, applied in a situation close to, though not quite the same as, the present by Blackett-Ord VC in Bradburn v Lindsay [1983] 2 All ER 408. There, one of two adjoining houses, whose dividing wall was a party wall, had fallen into disrepair, to such an extent that it had dry rot, which had spread to the next house. The local authority made a demolition order and, the Defendant not having complied with it, entered and demolished the property, leaving the whole of the party wall standing but unsupported. The Plaintiff sued the owner of the demolished house. She was held liable for the loss caused by the dry rot having spread to the Plaintiff’s house, on the basis that she had known of the existence of dry rot in her property, that she should reasonably have appreciated that there was a danger that it would spread to the next door house and that there were steps that she could reasonably have taken to prevent that happening. However, the judge went on to hold that she was also liable for the consequences of the demolition of her house, the party wall having been left unsupported and not weatherproofed. He distinguished Phipps v Pears on the basis that in that case there was no question of an interference with a right of support. He held that the Plaintiff was, in principle, entitled to have the party wall both supported by buttresses and finished or rendered on the outside so as to make it weatherproof (and likewise the roof as well) as well as having protection on the inside to prevent any further risk of the spread of dry rot. He did say that there had to be a cap on the damages, by reference to the difference between the present value of the Plaintiff’s property and the value that it would have had at the time with the next door property still in place but not amounting to a nuisance. The detailed circumstances of that case are such that one should not become too concerned with the details of the relief allowed, but it is clear that the judge gave the Plaintiff damages which were by no means limited to the loss of support, nor to the consequences of the presence and spread of the dry rot. He therefore applied the principle of Leakey to a situation which had been created by the Defendant’s own omissions, namely the neglect leading to the presence of dry rot, and also acts, namely the demolition without proper remedial work. Mr Spens submits that, leaving aside the dry rot aspect, that case is closely analogous to the present.

  31. Leakey was also considered, in the context of support, in Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 W.L.R. 1396, and had in the meantime also been considered in Bar-Gur v Bruton (unreported, 29 July 1993, Court of Appeal transcript 981 of 1993), the circumstances of which sufficiently appear from the judgment in the Holbeck Hall Hotel case (see paragraphs 37 and 38). The latter case concerned support by land of buildings, and arose from the fall of a cliff which led to the hotel being damaged and having to be demolished. The complaint against the Defendant was not that it had done something negligently, but that it had failed to take steps to maintain the support, or prevent it from being withdrawn by a fall of the cliff. The Court of Appeal rejected the submission for the Defendants that, if they were to be made liable, there had to be something that they had done, rather than mere omissions. They therefore held that the statement in Bond v Nottingham Corporation, that the servient owner can with impunity stand by and let his property fall into decay, and thereby withdraw support, (the second, third and fourth sentences in the passage quoted at paragraph 17 above) is no longer good law in the light of Leakey. In fact, both in the Holbeck Hall Hotel case, and in Bar-Gur v Bruton (there by a majority), the court held that the Defendant was not liable on the facts, but the decisions show that the duty of the owner of the supporting land or building has now to be seen as extending, in some circumstances, to a duty to take positive steps to maintain and continue support.

  32. The point now at issue, however, is not concerned with support. Mr Spens submits that one of two adjoining owners who demolishes his property can generally foresee, and that Mr Skerrett certainly could in the present case, that, if the previously internal dividing wall is left exposed to the elements, it will suffer as a result, in particular through rain permeating the unprotected wall, then freezing and thus causing cracks, and so can foresee that his neighbour will suffer loss and damage, and that he therefore owes the neighbour a duty to take reasonable steps to protect the wall against this danger, so that, if he fails to do so, he is liable in damages for the consequences. He submits that Mr Skerrett had sufficient knowledge of the risk from the terms of the notice served under the Building Act, referred to in paragraph 6 above, with its requirement to weatherproof any surfaces of an adjacent building which are exposed by the demolition. The judge found that Mr Skerrett did know of the risk, by reason of this notice, but held that the notice itself did not give rise to anything other than a statutory obligation, and Mr Rees’ action was not based on that obligation. He held that at common law there was no such duty to weatherproof, that this was established by Phipps v Pears, and was not altered by Leakey, and that the duties of Mr Skerrett in this respect were limited to those defined in respect of the law of nuisance.

  33. With the benefit of fuller reference to authority, and in particular of the Holbeck Hall Hotel case which was decided after the judgment in the present case, it can be seen that the judge’s view of the legal principle was too narrow. The principle in Leakey can apply in a case such as this, it can require the Defendant to take positive steps, and it can therefore certainly require him to take positive steps at the time of, or consequential upon, his act of demolishing his own property. Reference to Leakey itself makes it clear that it matters not whether the action is regarded as lying in nuisance or in negligence, since the ingredients would be the same: see [1980] QB 514F to 515B. The duty found to exist in Leakey is to do that which is reasonable in all the circumstances to prevent or minimise the known risk of damage to the neighbouring property: see [1980] QB 524E to H, where Megaw LJ deals in some detail with the sort of circumstances which may be taken into account in deciding what is reasonable.

  34. Though it is not relevant on the facts to the present case, it is worth noting that the carrying out of works such as those undertaken by Mr Skerrett would now be governed by the provisions of the Party Wall etc. Act 1996. By section 2(2)(n) of that Act a building owner has the right to expose a party wall hitherto enclosed subject to providing adequate weathering. Though an owner who is subject to a demolition notice does not have to serve a party structure notice under section 3 (see s. 3(3)(b)) he is still liable to compensate his neighbour for loss or damage resulting from the work done under section 7. Accordingly, circumstances of the kind at issue in this action which arise now would be likely to be dealt with under that statutory regime. The application of common law liability to a new, and far from uncommon, set of circumstances which Mr Spens invites us to make may, therefore, be of less far-reaching significance than it would be if the point had not in the meantime been affected, in practical terms, by this statutory provision. Nevertheless, his proposition does involve recognising a liability as a matter of general law, which does not depend on any unusual facts and is of potentially wide significance, and one which would attach to those in the position of Mr Skerrett a duty that has not previously been asserted but might involve significant extra expenditure, and would, in practice, reduce substantially the continuing significance of the decision of this court in Phipps v Pears.

  35. That case remains authority that there is no absolute duty to provide weatherproofing, whereas in a case where a right of support exists there is an absolute liability for loss caused by the withdrawal of that support. The liability which Mr Spens seeks to establish is dependent on showing first that the Defendant knew or ought to have known of the risk of damage likely to result from his demolition works, if not accompanied by weatherproofing, and secondly that the damage suffered would have been prevented by work which it would have been reasonable, in all the circumstances, for him to carry out. Unlike Leakey itself and the Holbeck Hall Hotel case, but like Bradburn v Lindsay, liability is sought to be established here for the consequences of action, rather than omissions, by the Defendant; this may be easier to establish on the facts.

  36. Lord Denning in Phipps v Pears, in the passage cited at paragraph 20 above, identifies a policy as underlying the denial of a right of protection, namely that to recognise the right which Mr Phipps asserted would stop a man pulling down his house and would put a brake on desirable development. Such a policy is no doubt relevant, especially as regards the establishment (or not) of property rights, the infringement of which carries absolute liability. As regards the law of negligence and nuisance, developments since 1965, especially Leakey, show that the balance between the position of those who are neighbours (both in fact and in law) is now to be drawn differently in these areas of law. Moreover, it is not a question of preventing a man from pulling down his house altogether, any more than a right of support prevents demolition. Here Mr Skerrett was obliged to pull down his house. Rather, it is a question of requiring him, if and when he does demolish the house, to provide substitute protection, to the extent that this can be done by works which, in all the circumstances, it is reasonable to expect him to undertake.

  37. Having considered the matter in the light of Leakey and the cases since, especially the Holbeck Hall Hotel case, it seems to me that it would be right to hold that Mr Skerrett was under a duty, in February 1990, to take reasonable steps to provide weatherproofing for the dividing wall once it was exposed to the elements as a result of the demolition of number 14A. No issue was taken (or not effectively) by Mr Skerrett on the question whether the damage from rain penetration (as opposed to the damage from withdrawal of support) could only have been prevented by works more onerous than it would have been reasonable in the circumstances to expect Mr Skerrett to carry out. We therefore do not have to consider any such point.

  38. On that basis, I am satisfied that the judge was wrong to reject Mr Rees’ claim against Mr Skerrett based on a duty of care requiring him to weatherproof the dividing wall after the demolition of 14A.

    CONCLUSION

  39. For those reasons, I would allow Mr Rees’ appeal as against Mr Skerrett. In place of paragraph 1 of the judge’s order, dismissing the claim for damages, I would give judgment in favour of Mr Rees against Mr Skerrett for £47,000 damages. For the purposes of the Practice Direction (Citation of Authorities) [2001] 1 W.L.R. 1001, this judgment may be cited despite the hearing having been attended by only one party, since it is intended to extend the present law.

    Lord Justice Waller

  40. I agree. I have nothing to add on the easement of support aspect.

  41. As regards the liability for damage on the basis of breach of duty, I ought to add a short word. I have some anxiety, which is shared by Lloyd J, that to give judgment on this aspect in favour of the Claimant involves an extension of the law. It certainly could be said to be inconsistent with Phipps v Pears, although as Lloyd J points out no argument was presented in that case on the basis that a liability in negligence or nuisance could be established.

  42. Such anxiety as I have is, however, dispelled by the following. If someone can owe a duty to take reasonable steps to prevent damage to his neighbour’s property resulting from something naturally on his land (Leakey v National Trust) or placed on his land by trespassers (Sedleigh-Denfield v O’Callaghan [1940] AC 880), it would seem strange that he should not owe some duty when he pulls down the house which he appreciates protects the wall of the neighbouring house. The only suggestion is that a duty be imposed which is reasonable having regard to the position and resources of the two house owners. That does not seem extreme. In this case, furthermore, a notice had been served by the local authority, requiring weatherproofing to be done. It could thus scarcely be said either that it was not obvious that weatherproofing would be necessary if the house was demolished, or that it was unreasonable as between the Claimant and the First Defendant to require the First Defendant to carry out that weatherproofing.


Cases

Midland Bank plc v Bardgrove Property Services Ltd (1992) 65 P&CR 153; Phipps v Pears [1965] 1 QB 76; Dalton v Angus (1881) 6 App Cas 740; Bond v Nottingham Corporation [1940] Ch 429; Marchant v Capital and Counties Property Co Ltd, [1982] 2 EGLR 152; Bradburn v Lindsay [1983] 2 All ER 408; Leakey v National Trust [1980] QB 485; Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 W.L.R. 1396; Bar-Gur v Bruton (unreported, 29 July 1993, CA transcript 981/93); Sedleigh-Denfield v O’Callaghan [1940] AC 880

Legislations

Party Wall etc. Act 1996, s.2(2)(n), s.3(3)(b), s.7

Authors and other references

Practice Direction (Citation of Authorities) [2001] 1 W.L.R. 1001

Representations

David Spens for the Appellant (instructed by Elliotts).

The First Respondent did not appear and was not represented.

The appeal was not pursued against the Second Respondent.


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