Dispute Resolution Team
Bad Smells, Bad Neighbours and Basement Excavations
Matthew Hearsum
Solicitor & Arbitrator
Matthew.hearsum@morrlaw.com
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Legal Roundup of 2011
• Seeff - v - Ho [2011] EWCA 186
• Hirose Electrical - v - Peak Ingrediants[2011] EWCA 987
• Jones & Lovegrove - v - Ruth & Ruth [2011] EWCA 804
• Williams v Taylor – Moot
• Some lessons from the coalface
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Seeff - v - Ho
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
314 & 316 Whitchurch Street, Edgware
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Is informal consent sufficient?
Thomas L.J.:“31.
Plainly when a neighbor seeks to do work that affects another
neighbor, informal conversations as to what is proposed are
highly desirable. However an informal discussion over the
garden fence cannot, in my view, be taken objectively as a
simple consent to proceed with the work without more. A
neighbour who has given the consent would obviously expect
that, if planning permission was required or consent under the
Party Wall Act was needed, the processes would be put in train
and the obligations imposed by the planning authorities or
under the Party Wall Act observed as a condition of consent.”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Is informal consent sufficient?
Thomas L.J.:“36.
…The [1996] Act makes it mandatory to give notice in respect
of work defined in the Act.
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Injunction -v- Damages
Shelfer v City of London Electric Lighting Co Ltd
1. If the injury to the injured party’s legal rights is small;
2. If the injury is capable of being estimated in money;
3. If the injury can be adequately compensated by a small money
payment; and
4. If it would be oppressive to the infringing party to grant an injunction.
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Measure of Damages
Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798
“representing such a sum of money as might reasonably have been
demanded by the claimant from the defendant as a quid pro quo for
permitting the invasion of the claimant’s right.”
X
HHJ Copley: £200
Court of Appeal: £500
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Conclusions
1. Informal consent is not sufficient – follow the Act!
2. Act quickly for an injunction – delay will leave you with damages only
3. Damages are assessed on a Wrotham Park basis – and unlikely to
be substantial
4. Damages should be resolved by surveyors – more on that later…
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Hirose Electrical - v - Peak Ingredients
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
20 & 22, Crownhill Industrial Estate
No. 20
2002 Peak moves in
No. 22
1993 Hirose moves in
2008 Hirose moves out
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Nuisance – the Basics
1. Claimant must have proprietory or possessory interest in the land
2. Substantial interference with Claimant’s use or enjoyment of land
3. The interference must be unreasonable
(a) Abnormal Sensitivity of Claimant
(b) Time and duration of interfearance
(c) Conduct of Defendant
(d) Nature of the Locality
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Nuisance – the Basics
Sturges v Bridgman
“what would be a nuisance in Belgrave Square would not necessarily
be so in Bermondsey .”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Judgment
N Strauss QC (sitting as Deputy Judge of the High Court)
“115.
…I do not think that the reasonable user by an occupier of
industrial premises on an industrial estate becomes a nuisance
because of inadequacies in the party wall dividing its premises
from its neighbour for which it is not responsible”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Grounds of Appeal
1 & 2.
Failed to consider whetehr, having regard to the pourus wall,
Peak could ever have been a reasonable user
3.
Whole estate being “light undustrial” does not means Units 20
and 22 were suitable for Peak’s activities
4.
Wrong to say smells were not a nuisance
X
X
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Judgment
Mummery L.J.:“42.
The porous nature of the party wall was relevant to the penetration
of the smell into Unit 20 and as a subject of remedial work, but no
blame on that point could be allocated to the parties or to the
landlord. It is a matter for regret that the parties and the landlord
were unable to make progress on insulation measures…”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Conclusions
1. Decision is inconsistant with earlier authorities e.g. Bradburn v
Lindsay and Brace v South East Regional Housing
(a) But were not drawn to the attention of the Court of Appeal
(b) Not safe to rely on pre-1996 Act decisions
2. Liability for nuisance ony is breach of positive obligation to repair.
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Jones & Lovegrove - v - Ruth & Ruth
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
101 – 105 Lower Thrift Street
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
101 – 105 Lower Thrift Street
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
101 – 105 Lower Thrift Street
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Complaints
1. Excessive and perisitent noise and vibration
2. Cracking to walls of 105
3. Trespassed by cutting in holes and inserting purlins
4. Trespassed by erecting scaffolding & storing building materials
5. Boundary wall part damage and part demolished
6. Anti-social behaviour and lesbophobic remarks
7. Personal Injury – Back pain caused by anxiety and depression
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Negligence
1. A duty of care
2. Breach of that duty
3. Breach causes the harm
4. Type of injury was reasonably forseeable
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Protection from Harassment Act 997
1. “Course of Conduct” i.e. two or more occasions
2. That causes “Harrassment” i.e. Alarm or distress
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Judgment
H.H.J Wilcox.:“It is a feature of this sad case that Mr Ruth throughout has failed to be
open and transparent in relation to the scope and timescale of his
building activities both at 101 and 103 Lower Thrift Street. He took the
view that 103 was his house and he could do whatever he liked to it,
and in it, at anytime that he chose convenient to the operation of his
business and his development activities. He is clearly a hardworking
and industrious man who is intolerant of criticism
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Damages
1. Trespass: £45,000
2. Nuisance: £30,000
2. Personal Injury: £0.00
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Appeal
1. Jones & Lovegrove
(a) Forseeability of Injury not a requirement of Harrassment
(b) General Damages: £28,750
(b) Loss of Earnings: £115,000
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Cross-Appeal
1. Wrotham Park – 5% of increase in value as the result of the unlawful
works
2. Adjusted for:(a) Reluctance on behalf of Ajoining Owner to allow infringment
(a) Desire by Building Owner to undertake works
3. On this case, one third of the increase in value: £15,000
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Conclusions
1. Building Owners that:
(a) Unreasonably prolong works
(a) Cause Alarm or Distress of Adjoining Owners
Can be held liable for substantial damages – in this case £158.750!
Plus legal costs!
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Conclusions
1. How to assess damages for unlawful works
(a)
Starting point: 5% of increase in value as the result
of unlawful works
(b)
Adjust for:
(i) Building Owner’s enthusiasm for the right to
infringe
(ii) Adjoining
Owners’
infringement
Reluctance
to
allow
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Williams - v - Taylor
(Moot)
Judgment not yeat avaliable – Sorry!
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Result
1. Concept of “raising downwards” is incorrect
(a)
Standard Bank v Stokes is not authority for the idea
(b)
Rights to increase the Party Wall are set out in s.
2(2) of the 1996 Act:
Increase in Height:
“Raise”
Increase in Width:
“Thicken”
Increase in Depth
“Underpin”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Result
1. A reinforced foundation is a reinforced foundation
(a)
Does not cease to be a special foundation because
also used as a wall
(b)
Casting mass concrete or similar blinding
underneath does not stop it being a special
foundation
“a five-pronged instrument used for digging earth is a fork, no matter
how much the parties insist it is a spade”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Result
1. Duty on surveyors to consider future development rights of Adjoining
Owners
2. Indemnity in s. 7(2) is very wide
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Lessons from the Coalface
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Lesson 1 – Correspondence
Assume that every letter you write will be seen by a Judge
“I am sure many of the surveyors that have had the misfortune to
cross your path for the first time dismiss you as a poorly informed
windbag”
“If we didn’t have a third surveyor in place I would catagorise what
you do as criminal”
“I am wondering whetehr you are operating from a position of being
entirely balanced and rational”
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Lesson 2 – Ten Day Notices
Make them :
Specific:
Give a date by which they must act, as “ten days is
ambiguous – Ten days from when?
Measurable:
Set out clearly what it is you are asking them to do
Attainable:
Make sure you are not asking them to do the impossible e.g.
act outside jurisdiction
Do not give them the ammunition to challenge the validity of your request!
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Lesson 3 – Take early Legal Advice
1. The day before the Appeal deadline expires is too late!
2. If complex issues with notices e.g. deceased owners, trust
corporations, complex arrangement of leaseholds and freeholds
3. Injunctions are easier to obtain if you act fast
BUT injunctions are not the only option
REDHILL | WOKING | WIMBLEDON | CAMBERLEY
Thank you
Notes are published on my blog:
partywallsolicitor.wordpress.com
REDHILL | WOKING | WIMBLEDON | CAMBERLEY