Excavations on boundary — Interference with adjoining property — Claims for damages for loss of support, negligence, nuisance and breach of restrictive covenant — Claims by plaintiffs dismissed
The plaintiffs have been the owners of 117A Brighton Road, Hooley, Coulsdon, Surrey, since 1979; the defendant company are the owners of the “Happy Eater” on the adjoining property. Between August 6 and 13 1982 the defendants carried out excavation on their side of the boundary with the intention of enlarging their car park. The plaintiffs issued proceedings claiming compensatory damages for loss of support, negligence, nuisance and breach of a restrictive covenant on the grounds that an area of their garden was in danger of collapse.
When tunnels and cuttings for the Brighton railway were constructed in 1841 and 1897 the chalk spoil was spread on the land where the defendants excavated their car park; in 1947 the plaintiffs’ property was constructed on top of the bank of spoil. The restrictive covenant affected part of the defendants’ land and restrained excavations or use other than private residential only. When further works and remedial operations were proposed in October 1984 the plaintiffs obtained an order restraining the same. Throughout the plaintiffs relied on the reports and professional advice of Professor Crockett. The injunction was discharged in November 1984. Remedial works were carried out in May 1985, which the plaintiffs accepted were successful.
Held The claims were dismissed.
The expert evidence of Professor Hanna and Mr Stephens adduced on behalf of the defendants was preferred to that of Professor Crockett on behalf of the plaintiffs; there never was any damage to the plaintiffs’ property nor, by reason of the chalk material, any danger of imminent collapse of the plaintiffs’ garden. In the absence of damage to the plaintiffs’ land there was no interference with their natural right at law to support. On the evidence there was no danger of collapse and consequent unsafety and therefore the claim in nuisance failed. The claim in negligence failed, inter alia, because there was no damage to their property. The claim for breach of the restrictive covenant had not been pleaded and leave was refused to amend the statement of claim as the claim was statute-barred.
Alan Wilkie (instructed by SJ Oliver & Co) appeared for the plaintiffs; and Hugh Bennett QC and Oliver Wise (instructed by Tuck & Mann, of Epsom) appeared for the defendants.
