This was an appeal from a decision of Mr Michael Wheeler QC, sitting as a deputy judge of the High Court, on a claim based on nuisance and negligence brought by the owner of a house against the owners of an adjoining house (a housing association) and a member of their committee of management — The demolition of the adjoining house, which converted what had been a party wall into a flank wall, deprived the house of the plaintiff (present respondent) of support — The removal of the adjoining house caused a shrinkage in the subjacent clay, the moisture having dried out, and cracks in walls and ceilings of the respondent’s house indicated subsidence — The deputy judge decided that neither of the defendants was liable in negligence, but that the housing association was liable in nuisance for the damage caused by interference with the respondent’s easement of support — The judge gave judgment in favour of the respondent for £17,500 in respect of diminution in the value of her property and £1,000 in respect of the ‘aggravation’ suffered — The appellants challenged this decision on three main grounds; (1) that, by entering into a party wall agreement the respondent had abandoned her other rights, (2) that she was really complaining about interference with a supposed right, which did not exist, to have the subsoil under her house protected from the atmosphere, and (3) that she was complaining about the removal of underground water from the clay, which the authorities showed was damnum sine injuria — The Court of Appeal, after considering a number of cases cited by the appellants, rejected all three submissions — There was no indication that the respondent intended to surrender her common law rights — The respondent was not asserting a non-existent right to have her subsoil protected from the atmosphere, but a right of support which was impaired by the condition of the clay; it was immaterial by what precise causal mechanism her right had been interfered with — The authorities which allow immunity to a defendant who draws off percolating water to which a plaintiff has no proprietary right had no relevance to actions which disturbed a right of support — Appeal dismissed
This was an
appeal from a decision of deputy judge Michael Wheeler QC, who gave judgment
for the plaintiff, the present respondent, Mrs Daisy Kathleen Brace, against
the appellants, South East Regional Housing Association Ltd, and their
surveyor, Mr E G Buckle, on the issue of nuisance by interference with the right
of support to the respondent’s house at 19 Stroud Gate, Harrow, Middlesex.
J Parker QC
and H Picarda (instructed by Male & Wagland) appeared on behalf of the
first appellant (the association); C Braham (instructed by Allan Jay & Co)
represented the second appellant (Mr E G Buckle); P Mottershead QC and P
Sinclair (instructed by Hanney & Co) represented the respondent.
Giving
judgment, EVELEIGH LJ said: I shall take the facts in this matter almost
verbatim from the very helpful skeleton argument provided by the appellants.
Mrs Brace is
the owner of a dwelling-house, 19 Stroud Gate, Harrow, Middlesex, in which she
has lived since 1964. The house was built in the 1930s as one of a terrace of
houses. The adjoining house to the west (20 Stroud Gate) formed the western end
of the terrace. In 1969 the association, the defendants, the appellants, was
planning to develop land to the rear of the terrace, that is roughly speaking
to the south. This development involved the demolition of no 20 as part of the
plans to provide an access road to the land at the
Each party (that is to say Mrs Brace and the association) instructed solicitors
and surveyors to act in their respective interests in relation to the proposed
demolition and to the necessary remedial works to no 19. Mrs Brace’s surveyor
was a Mr Holland. The association’s surveyor was Mr E G Buckle, who became the
second defendant. On May 6 1970 an agreement was signed by the respective surveyors.
It was entitled ‘Party Structure Agreement Concerning the Party Wall Separating
Nos 19 and 20 Stroud Gate, Harrow, Middlesex’. It set out in a schedule the
remedial works. The agreement itself contained a provision for reference of
disputes to an independent surveyor, and imposed various obligations on the
association in relation to the carrying out of the specified works. It was
provided in the agreement that the whole of the works should be carried out to
the reasonable satisfaction of Mr Holland within three months.
Demolition
began on May 7 1970 and was quickly completed. The time-limit of three months
was not kept because there were recurring problems of damp patches appearing on
Mrs Brace’s side of the flank wall. But ultimately Mr Holland, on December 3
1976, confirmed to Mrs Brace’s solicitors that according to his records the
party structural agreement works were carried out in accordance with the terms
of the agreement and were completed in 1974. During the spring of 1976 Mrs
Brace noticed cracks in the walls of no 19 and she called in a surveyor, and
structural engineers were also consulted. She wrote to her insurance company,
who disclaimed any liability, contending that the damage to her property was
not the result of subsidence which was within the terms of the policy and told
her that she must look elsewhere for reimbursement. On November 8 1978 Mrs
Brace issued a writ against the association and against Mr Buckle.
The amended
statement of claim alleged that the association and Mr Buckle wrongfully
deprived Mrs Brace of the support to her house afforded by the adjoining house,
whereby the walls and structure of her house were weakened or damaged, and that
they thereby caused or permitted a nuisance. It was alleged ‘Further or
alternatively, that the association, in failing to take steps to avoid such
damage, was in breach of the party structure agreement‘ and it was
further alleged ‘that both the association and Mr Buckle were negligent‘.
The association denied liability. They contended that the carrying out of the
works and the removal of the house no 20 was governed exclusively by the terms
of the agreement. A great deal of evidence was heard as to the cause of the
damage to the walls of Mrs Brace’s property and the learned deputy judge, Mr
Wheeler QC, accepted the evidence of the plaintiff’s structural engineer. He
said that the subsidence had been caused by the shrinking of underlying clay,
which was caused in turn by reduction in moisture content of that clay, and
that reduction in moisture content had been brought about because the house no
20 had been removed and thus the land underlying the wall had been subjected to
atmospheric conditions to a degree that it would not have been had the house
remained there. He said that the drying out that subsequently occurred was
inevitable once given the removal of no 20. It amounts to this, in effect, that
the effect of the rays of the sun could penetrate more quickly through the soil
to the clay and cause the clay to shrink, and furthermore any evaporation from
the water or moisture in the clay would not be retained by the presence of the
house and its underlying concrete flooring which one commonly finds beneath the
floor-boards of houses.
Of course such
a change in conditions can operate both ways. By the house not being there,
rainwater can more readily reach the clay. In this case we are concerned only
with the action of the evaporation of the water and the shrinkage of the clay.
Very dry weather in 1976 accelerated this process but was not the root cause of
it: it accelerated what was going to happen anyway. The ultimate shrinkage of
the clay, according to Mr Grant, the surveyor, was inevitable. The learned
deputy judge found no negligence against the defendants. He did, however, find
that there had been an unlawful interference with the right of support that had
been acquired by prescription by the plaintiff against the defendants’ land,
and before us it has been accepted that no 19 had acquired a right of support
by prescription. Whether or not such a right of support could have been
established upon any other basis, seeing that these houses were apparently
built at the same time by the same builder, matters not: we have dealt with the
case all along on the basis of an easement of support acquired by prescription.
We have been
concerned with that flank wall of no 19, which of course was the former party
wall between the two properties. The first submission related to the agreement
and it was said on behalf of the appellants that in effect the plaintiff had
abandoned all other rights against the defendants in relation to matters
arising from the demolition of the house other than those contained in the
agreement. The London Building Acts (Amendment) Act 1939, which gives the owner
of a property certain rights as against his neighbour in relation to the party
wall, does not apply to this property, and it is said — and the learned judge
so found — that that was the background to the agreement which was made. It was
no doubt a factor that prompted the parties to put their heads together to
avoid subsequent arguments as to responsibility for work that was being done
and the manner in which it was being done. Although the plaintiff had no rights
under the 1939 Act she would of course have been able to apply to the court for
an injunction, and might have been granted one had she proved the necessary
matters in support to prevent the defendants from pulling down the house, at
least to prevent them from doing so unless certain precautions towards the
maintaining of the support and maintaining the condition of the exposed flank
wall and a variety of other matters that one can envisage were complied with.
Therefore, one can see that very sensibly the parties put their heads together
in an attempt to avoid conflict and, one must assume, to avoid delay. But when
one looks at the terms of that agreement and sees the obligations that are
imposed upon the defendants, one finds no indication whatsoever that the
plaintiff is giving up any of her rights to support, and one notes that among
the terms of the agreement we find, by paragraph (b), the following: ‘The
Building Owner shall be at liberty at his own cost to pull down no 20 Stroud
Gate and to strengthen, repair or underpin’ and I emphasise the word
‘underpin’, ‘the party wall and generally to carry out the various works
described in the attached schedule marked ‘A”. I refrain from reading all the
terms of it, but it does not seem to me that that agreement can be read as an
undertaking by the plaintiff to abandon her rights, and there are no grounds
whatsoever for implying such a term. This is not a case where terms are
necessary to give business efficacy to it, and if a party wishes to rely upon a
term in a contract it is for that party to establish it, and that has not been
done in this case. So, I would reject the argument that Mrs Brace’s rights are
restricted to such as can be found in the agreement.
One now turns
to the question of liability in nuisance for the interference with a right to
support. We start with its being accepted that a right of support had been
acquired and that, in those circumstances, it is clear law that a defendant who
interferes with the right of support does so at his peril. But to that rule it
is submitted by the appellants that there is an exception, namely that a
defendant may draw off water from his own property with impunity and if that
results in water being taken from the dominant tenement and a subsequent
withdrawal of support in consequence the defendant is not liable. Secondly, it
is said that the support that is claimed, when the facts of this case are
properly analysed, is a right of support against water, and it is submitted
that no such right exists in law and it cannot be prescribed for. It is said
that the right to draw off water and the absence of the ability to prescribe
for support against water is well established in those cases which deal with
the right of support to land in its natural state against neighbouring land. We
were referred to Clerk and Lindsell, 15th ed, at p 1177 where it reads:
There is no
right to have land supported by water and such a right cannot be acquired by
prescription. Therefore one who by draining his own land withdraws from an
adjoining owner the support of water theretofore lying beneath the land of that
owner and thereby causes the surface of that land to subside is not liable for
the damage inflicted
and for that
authority is quoted, namely Popplewell v Hodkinson (1869) LR4 Ex
248, English v Metropolitan Water Board [1907] 1 KB 588 and Langbrook
Properties Ltd v Surrey County Council [1970] 1 WLR 161. The first
and last of those cases this court has been referred to in detail and in
particular to the history of the law in relation to withdrawing water set out
by Plowman J.
The passage in
Clerk and Lindsell goes on to say:
To this rule
an exception is created by statute in certain cases of subsidence caused by
brine pumping operations. This rule does not apply to cases in which the
withdrawal of support, by oozing out of wet sand, silt or other partially
liquid substance, results in a subsidence of the adjacent surface
and that
qualification was made in view of the decision in Jordeson v Sutton,
Southcoates and Drypool Gas Co [1899] 2 Ch 217.
Mr Parker has
argued that the decisions which deal with this matter, applying in case of the
dominant tenement unencumbered by buildings and its claim to support from
adjacent land, apply also in the case where a right has been acquired by
prescription. The right in relation to land unencumbered by buildings has been
referred to as a natural right in land, but, says Mr Parker, the cases show
that the courts regard the acquired right as being the same, and he has
referred us to the case of Dalton v Angus (1881) LR 6 App Cas
740. In particular he referred to the speech of Lord Blackburn, where at p 809
he said:
And I think
that the decision of this House in Backhouse v Bonomi (1861) 9HL
CAS 503 also conclusively settles this, that though the right of support to a
building is not of common right and must be acquired, yet, when it is acquired,
the right of the owner of the building to support for it is precisely the same
as that of the owner of land to support for it.
He also
referred us to the case of Greenwell v Low Beechburn Coal Co
[1897] 2 QB 165, and to the judgment of Bruce J. At p 170 Bruce J said:
Here it is
necessary to observe that although the right of the owner of a surface, and the
right of the owner of the buildings on the surface, not to have the land or
buildings interfered with by underground working on the part of the owner of
the minerals, stand upon different footings as to the mode of acquiring them,
yet the right as regards buildings when once acquired is in character the same
as the right of the owner of a surface.
There are
other similar statements in Dalton v Angus to the effect that the
rights were of the same character.
No direct
authority, however, has been produced and we are told that none can be found to
say that the prescribed right of support is in all respects equal to that of
the natural right. It is one thing, in my opinion, to say that rights are of
the same character but it is another thing to say that they are the same. In
this regard, the words of Rigby LJ in the case of Jordeson v Sutton,
Southcoates and Drypool Gas Co [1899] 2 ChD 217 at p 243 show that, as I
see it, this question is open. Rigby LJ there refers to the leading case of Popplewell
v Hodkinson, and he says:
It is against
this extreme logical result that I am disposed to consider the decision in Popplewell
v Hodkinson . . . to be directed. Having come to the conclusion that in
such a case as that before the court there was no natural right on the part of
the plaintiff to prevent his neighbour from draining his land for ordinary uses
that might be foreseen (including, under the circumstances of the particular
case, the obtaining of a proper foundation for substantial buildings), although
the result might be to let down the plaintiff’s surface in its natural
condition — the conclusion was not altered by the fact that, two or three years
before action, the plaintiff had chosen to build small houses on the insecure
foundation of his own swampy soil. The court recognised the possibility of such
a right as that claimed by the plaintiff being conferred by grant express or
implied, which in my judgment involves the conclusion that, when support to
buildings from water is enjoyed for 20 years, the right to it becomes absolute.
In the
present case the houses damaged had been built for considerably more than 20
years when the support was withdrawn from them, and, according to the
principles enunciated by the court in Popplewell v Hodkinson . .
., the defendants would not have been acting within their right even if their
operations had been confined to surface drainage of water.
In that case, Jordeson
v Sutton Gas Co, the houses had been erected for longer than the
prescription period, it would appear, and damage had been caused when water had
been drawn off. But the majority of the Court of Appeal, the Master of the
Rolls and Rigby LJ, found as a fact that the water had taken away with it sand
or silt and thus weakened the foundations of the building and consequently the
defendant was liable. There had been argument, it would seem, as to whether or
not there was a prescriptive right to support of water but it was, on that
majority finding, unnecessary to decide the point. Vaughan Williams LJ came to
the conclusion that in fact there had been no support from the silt or sand but
only from water, so that it was a case of drawing off water, but for myself I
do not find it clearly stated by him that no right of support to water can be
prescribed for. He certainly found in that case that there was no liability,
but it is not clear, as I read his judgment, whether he found this upon the
simple principle that no action would lie for the support of land against land
that was reduced by the withdrawal of water or whether he was directing his
attention to the existence of a prescriptive right. It does not clearly appear.
I refer to that case not for the purpose of arriving at any concluded opinion
on the subject but to show, as I see it, that the matter still remains to be
decided.
However, in
considering this case I will proceed upon the assumption that there is no
prescriptive right to support from water itself, and further upon the
assumption that where a right of support has been acquired against a neighbour’s
land that neighbour is not liable for a weakening of support which is
attributable only to the withdrawal of water.
As I see it,
in this case the plaintiff had acquired a right of support; it was support that
was, on the facts of the case, afforded by the party wall belonging to the
defendants, the appellants, and that wall itself depended, to a substantial
degree, for support from the clay soil. It is important to bear in mind that
the plaintiff has not acquired any right to the continued existence of moisture
in the clay, to the continued presence of the clay or indeed to the continued
presence of the wall: the right that had been acquired was a right of support,
and the defendants could remove the particular means to support that existed
provided that they replaced it with equally efficient support. It does not
matter from a plaintiff’s point of view how that support is provided or upon
what mechanism it depends, but the plaintiff is entitled to have her right
against the defendants’ land protected against interference. On the facts of
this case the defendants had changed their land in a way that in fact weakened
the support. The chain of causation passed through a stage where the moisture
in the clay was dried out, but that does not alter the fact, as I see it, that
the defendants acted in such a way as to interfere with the support that had
been provided, and they interfered with it not, as I see it, by draining off
water but by altering the conditions which operated to afford the support.
As to the submission
that there is no liability for removing water — it is to percolating water that
the authorities seem to refer. A plaintiff has no right to the percolating
water and he has no right, or no proprietary right, in it that enables him to
stop a defendant removing water or drawing it off from under or from over his
own land. We have been referred to the case of Chasemore v Richards
(1859) 7 HLC 349, in which the reasons for the immunity of a defendant who
draws off water from his land are set out — and there is no need in this
judgment to go into them: they are referred to yet again in the case of Jordeson
v Sutton Gas Co, to which I have already referred. But it does seem to
me, considering those cases, that the court was dealing with a situation where
the defendant is draining off water and dealing with water in manageable
quantities and, furthermore, dealing with it for purposes where water in
quantity can be used: drinking, husbandry, preserving the condition of land for
agricultural purposes, and so on. I just cannot equate in my mind the drying
out of clay through atmospheric conditions, in particular by heat, as bearing
any resemblance to the kind of activity that is granted immunity in the cases
to which we have been referred.
It seems to me
that there is a world of difference in the action of a defendant who takes
water in some quantity from land where it is found to be percolating and the
action of someone who dries out the moisture content of a mineral, namely clay
in this case. If I dry out a piece of wood or I dry out a twig I cannot regard
myself as taking water from it in any ordinary sense of that term, and it seems
to me that it is straining the language of the cases to equate the action
referred to in them with that of evaporating moisture from clay or from
anything else. Therefore I could not accept that the defendants were entitled
to do what they did on the authority of the cases dealing with the removal of
water.
There remains
a third argument, which I can deal with briefly. It was said that the plaintiff
was in effect claiming a right to protection from the elements and from
atmospheric conditions, and reference was made to the case of Phipps v Pears
[1965] 1 QB 76, where at p 83 Lord Denning MR said:
Every man is
entitled to pull down his house if he likes. If it exposes your house to the
weather, that is your misfortune. It is no wrong on his part.
But in that
case the plaintiff had not acquired a right of support against the adjacent
property: it was a case where the plaintiff was asserting an independent right
to protection from the circumstance that the neighbour had built in close
proximity to the plaintiff’s property and thus had afforded some protection
from the elements, and it was that protection that was removed. I do not find that
case to be of any relevance to the case which we have to consider. I therefore
would dismiss this appeal.
Agreeing,
DILLON LJ said: In their notice of appeal and the supplementary notice the
appellants put forward a wide range of
but in the event the argument on the hearing of this appeal has been limited to
three points only, one at least of which does not seem to have figured in the
argument before the learned deputy judge. I would summarise the three points
taken, which are the only points we have to consider, as follows: (1) that what
the plaintiff has complained of is on a true analysis not an infringement of
her right to support if, despite the party wall agreement, she still had a
right to support, but an infringement of a supposed right, which in law is not
a right at all, to have the subsoil under her house protected from the
atmosphere; (2) alternatively, that what the plaintiff has complained of is on
a true analysis merely the removal of underground water from the clay under her
house, and that can never be actionable even if she has, as she claims, a right
of support for that house; and (3) in the further alternative that the party
wall agreement provided comprehensively for what was to be done, and the
plaintiff accepted her rights under the party wall agreement, which have not
been infringed, in substitution for her right of support and all other relevant
previous rights.
I can deal
fairly shortly with each of these three points in the circumstances of this
case.
(1) The plaintiff’s right of support, which she
had admittedly acquired before the party wall agreement was made, entitled her
to have her house, no 19, supported by the adjoining house, no 20, and the subsoil
under no 20. The settlement which occurred in no 19 in late 1975 and 1976 by
the shrinkage of the clay under the party wall and on the site of no 20
involved a removal of support under the party wall which was, on the evidence
of Mr Grant, which the learned deputy judge accepted, the inevitable
consequence of the demolition by the appellants of no 20. The plaintiff was
entitled to the support as actually enjoyed previously, and it is irrelevant to
seek to categorise it as lateral rather than vertical support. It is equally
irrelevant to draw a distinction between the support enjoyed directly because
the walls of no 19 and no 20 were built into each other and support enjoyed
indirectly because the presence of the building no 20 kept the clay under the party
wall in position and in a satisfactorily moist condition. The support provided
by the condition of the clay subsoil was part of the support enjoyed by the
plaintiff and to which she was entitled, and as a matter of causation that
support has been impaired by the appellants by their demolition of no 20.
(2) The short answer to this point is that what
the plaintiff complains of is not merely that the appellants have extracted
underground water: she complains of the demolition of no 20, which was the
cause of all the trouble. There are, however, as it seems to me, yet further
fallacies in the appellants’ argument.
The argument
starts with the proposition that no person can have as a natural right or can
acquire by prescription a right to receive underground water, not flowing in a
defined channel from his neighbour’s land. Therefore, it is said, no person can
complain if his neighbour extracts or diverts such underground water even if
the would-be complainant has buildings on his land which are entitled to a
right of support and even though that support has been impaired by the
extraction or diversion of the underground water.
The starting
proposition is supported by authorities, but with the exception of the case of Jordeson
v Sutton Gas Co which my lord has mentioned they are all authorities
where the plaintiff had no right of support for his own buildings as against
the defendant’s land; indeed in most of the cases no buildings were in question
at all. It was said that where a plaintiff complained that the surface of his
unbuilt-on land had been disrupted or lowered by the defendant’s act in cutting
off the passage of underground water to the plaintiff’s land, the plaintiff had
no right known to the law which could override or cut down the defendant’s right
inherent in his ownership of his own land to drain or excavate that land as he
wished for his own purposes. That situation is conveniently summed-up by
Vaughan Williams LJ in Jordeson v Sutton Gas Co at p 254 as
follows:
In the case of
withdrawal of water-support of the surface of one property by dealing with
subterranean water subjacent to another property, the owner so dealing with
water under his own land is, apart from some obligation to afford support to
adjoining land — apart, that is, from some natural or conventional servitude —
entitled to excavate his own land in the manner in which he deems most
convenient and beneficial to himself, although the natural consequence may be
that some prejudice will accrue to the owner of the adjoining land.
It is an
incident of the ownership of land that the owner should be entitled to dig it,
even though digging it may prejudice his neighbour’s land. To limit this right
there must be imposed upon the land either some natural servitude, or
circumstances raising an inference of a grant to the owner of other land of a
right restricting the full use by the grantor of his own land.
Where the
plaintiff has a building on his land in respect of which he is entitled to a
right of support as against the defendant’s land, the plaintiff has a right
known to the law which palpably does cut down the defendant’s right to deal
with his own land as he wishes. In particular, it cuts down the defendant’s
right to dig in his own land or to excavate if thereby he will remove the
support. I can, for my part, see no reason in law or sense why the right of
support should be curtailed where what has impaired the support is the removal
by the dominant owner by some act on his own land of water in the clay subsoil
under the plaintiff’s building.
In support of
his argument that a right to support for a building gives no right to complain
if the support is impaired by the extraction of underground water, Mr Parker
referred to the statement by Lord Blackburn in Dalton v Angus at
p 809, which my lord has read. Furthermore, in the same case Lord Selborne, at
p 792, approved a statement of Willes J in the earlier case of Backhouse
v Bonomi as follows:
The right to
support of land and the right to support of buildings stand upon different
footings, as to the mode of acquiring them, the former being prima
facie a right of property analogous to the flow of a natural river, or of
air, though there may be cases in which it would be sustained as a matter of
grant . . . whilst the latter must be founded upon prescription or grant,
express or implied; but the character of the rights, when acquired, is in
each case the same.
Their
Lordships in Dalton v Angus, however, were directing their
attention merely to the juristic nature or character of the right of support if
acquired, particularly in considering whether it was of the nature of an
easement which could be acquired by prescription. Their observations were in no
way concerned with underground water and must not be taken out of context. I do
not find in them any support for Mr Parker’s submissions in the present case.
Mr Parker does indeed find support for his submissions in the conclusion of
Vaughan Williams LJ in Jordeson’s case, that the plaintiff in that case
had no cause of action. That judgment of Vaughan Williams LJ was, however, a
dissenting judgment, and with every respect to him I have been unable to
discern from the judgment how he gets over the difficulty, which he had indeed
almost adverted to in the passage I have already read, that the plaintiff there
had acquired by prescription a right of support for his buildings which was a
conventional servitude or right limiting the full use by the defendants of
their own land.
I prefer the
view expressed by Rigby LJ at p 244 in the same case in the passage which my
lord has already read, given that Rigby LJ was dealing with a case such as the
present where a right of support to buildings has been acquired. In any event,
however, as I have already mentioned, what has happened in the present case and
what is the root cause of the plaintiff’s trouble is not the mere extraction of
underground water but the demolition by the appellants of their building no 20,
which was providing support for the plaintiff’s building.
I now turn to
the appellants’ submission no 3. This argument depends on the construction of a
particular party wall agreement which was entered into. It is common ground
that at the time the plaintiff was entitled to a right of support for no 19 as
against no 20. The agreement authorises the appellants to demolish no 20, but
it is plain that the intention was that no 19 was to be supported and was not
to collapse from the removal of no 20. How this was to be achieved was left to
the appellants. Para (b) of the agreement, which my lord has read, gives the
appellants liberty at their own cost to pull down no 20 and to strengthen,
repair or underpin the party wall and generally to carry out the various works
described in the attached schedule ‘A’. Para (c) provided that ‘During the
progress of the works mentioned in the Schedule marked ‘A’ the Building Owner’,
that is the appellants, ‘shall adequately shore, uphold, maintain and protect
the Adjoining Owner’s premises and shall erect, maintain and move from time to
time as may be required weatherproof and dust sheets for the protection and
security of the Adjoining Owner’s premises’. The appellants were thus
authorised to underpin no 19 if they decided that that was appropriate, and it
is fundamental to the agreement that the plaintiff retained and did not abandon
her right of support. The appellants were not entitled to remove the existing
support provided by no 20 without providing
have failed to do, and consequently they are liable to the plaintiff as the
learned deputy judge held.
Also agreeing,
PARKER LJ said: I can express my reasons extremely shortly. So far as the
agreement is concerned, there being no express term and no means of construing
the words so as to exclude Mrs Brace’s right the argument must rest upon the
implication of some term. In order to imply a term the appellants would have to
satisfy one or other of the many tests which have been adumbrated in the
authorities from time to time. At one time, Mr Parker sought to raise an
argument based on the London Building Acts, but it was pointed out that that
argument was not open in view of the terms of the Act. There was then nothing
left. If one applies the officious bystander test and suppose that in the
course of negotiations someone had said: ‘What is to happen if the wall bulges
and falls down the day after the completion of the works provided for by the
agreement?’ I cannot contemplate that
both sides would have at once answered: ‘Well, of course there can be no
remedy’. That is too plain for argument and we need not bother to say it.
Certainly Mrs Brace and her advisers would, in my view, have given no such
answer and I very much doubt whether Mr Buckle would either. Therefore, I would
reject the argument based on the agreement.
So far as the
argument based on support is concerned, rights of support appear to be of three
characters: for land from land, which is a natural right of support; for
buildings from land, which is artificial; and for buildings from buildings,
which is doubly artificial. This case concerns support for buildings from
buildings. It is common ground that no 19 enjoyed and was entitled, at all
events by prescription, to support from no 20. It is common ground that the
owners of no 20 were nevertheless entitled to demolish it so long as they
provided equivalent support; that is support as good as that previously
provided by no 20. It is common ground that if they removed no 20 without providing
equivalent support and no 19 was thereby damaged action lies. It is common
ground that prior to the removal of no 20 no 19 was adequately supported but
after the removal of no 20 it was not adequately supported. Prima facie,
therefore, it would seem that equivalent support had not been provided, and if
one supposes that at the particular time somebody had asked Mr Grant the
question: ‘What must we do in order to provide equivalent support?’ he would have said: ‘Since you have removed
the concrete it is plain that the clay will dry out and it is therefore plain
that the wall will subside and therefore to provide equivalent support you must
underpin’. That was not done.
The fallacy of
the argument which is presented the other way appears to me to be this: to
assume that support can be divided into various categories. If one considers
the natural support afforded by the front wall of no 20, the degree of support
which it provides depends itself on its foundations because if the foundations
are not adequate that wall will not provide the support but will fall away from
no 19 and perhaps drag it down too. It therefore also follows that when one is
considering the adequacy of this support one must bear in mind the nature of
the foundations as they stand, and if they happen to be good foundations,
because of the manner in which nos 19 and 20 are constructed that is all part
of the support which is provided by the lateral wall and part of the lateral
support which it provides. Here part of the support provided by no 20 was the
protection of the foundations of no 19 which it provided.
The question
appears to me in the end not to be dependent upon any principle of law or any
of the authorities. It is a simple question: was adequate alternative support
provided? To that question there can, in
my judgment, be only one answer: ‘No’. I therefore would also dismiss this
appeal.
The appeal of
the first defendant, the association, was dismissed with costs. The appeal of
the second defendant, Mr E G Buckle, was stood out generally. Leave to appeal
to the House of Lords was refused.
