Trespass — Encroachment — Breaches of London Building Acts — Intrusion of swinging crane into neighbour’s airspace — Complaint by plaintiffs about activities of neighbouring landowners — Unusual mandatory orders made at interlocutory stage
between adjoining owners of areas of old London wharves — Defendants found by
judge to have unlawfully encroached on plaintiffs’ property by developments
extending over the latter’s boundary — Defendants were also guilty of breaches
of the London Building Acts 1930-39 by placing structures on the site of a
former party wall which had been demolished without the knowledge of the
plaintiffs — Further complaints proved against the defendants were that a
public footpath on the plaintiffs’ side of the boundary had been in part built
over and that a crane on the defendants’ land swung round into the airspace
above the plaintiffs’ property, so that a trespass was thereby committed
motion sought unusual interlocutory relief in the action commenced by the
plaintiffs — The judge decided that the defendants’ activities amounted to
‘high-handed expropriation of rights in defiance of the law’ and merited
summary measures — The main orders of a mandatory nature made by the judge were
the following: (1) an order for the removal of structures which admittedly
constituted a trespass on the plaintiffs’ undoubted land; (2) an order for
removal of structures on the site of the demolished party wall which
constituted breaches of the London Building Acts; (3) the continuation, if
necessary by order, of an undertaking by defendants to prevent a crane from
swinging over the plaintiffs’ land; (4) the restoration of the public footpath
destroyed by the defendants; and (5) various matters of ancillary or incidental
relief — The judge, however, refused an order for the erection of a chain link
fence between the plaintiffs’ land and the surface dedicated to the public for
passage; the plaintiffs could take the necessary steps themselves and charge
the defendants
judge’s view this was a case which justified the unusual course of making these
mandatory orders interlocutory without any trial — It was not a question of
discretion but of right; there was no question of an arguable case or balance
of convenience so far as the trespasses were concerned — Orders in terms of the
notice of motion so far as defined by the judge
No cases are
referred to in this report.
This was a
notice of motion by the London & Manchester Assurance Co Ltd, plaintiffs in
an action commenced by writ against the defendants, O & H Construction Co
Ltd and Petmoor Developments Ltd. The plaintiffs were the owners of the Thames
riverside area in Battersea formerly known as Albion Wharf. The defendants were
concerned with the neighbouring area known as Albert Wharf.
John Burke QC
and Roy Lemon (instructed by Clarksons, of Exeter) appeared on behalf of the
plaintiffs; Peter Crawford QC and Roger Ellis (instructed by Julian Holy)
represented the defendants.
Giving
judgment, HARMAN J said: I have before me a motion by notice dated March 3 1988
in a somewhat unusual action. The writ was issued on February 25 1988 by the
London & Manchester Assurance Co Ltd. The defendants are O & H
Construction Ltd and Petmoor Developments Ltd. The matter concerns property on
the south side of the Thames between Battersea Bridge and Albert Bridge, where
the plaintiffs are the owners of an area formerly known as Albion Wharf. The
premises have ceased some good many years ago to be a wharf, in the sense of a
place used for the transhipment of goods arriving by river, and are now
occupied, in part at least, by purpose-built (about 1980-81, I think) warehouse
buildings partly used for commercial purposes and by other similar structures.
The defendants
recently acquired the next-door premises known as Albert Wharf. Again, these
premises have for many years ceased to be used as a wharf in any proper sense
of that word. The defendants have given no summary of, and have not deigned to
put in evidence, their title, so one has no means of knowing precisely when or
from whom they acquired their premises.
The plaintiffs
have put in evidence and have shown that their predecessors in title in 1979
were informed by a vendor of the property that a wall along the eastern edge of
Albion Wharf, on the apparent boundary between Albion and Albert Wharves, was a
party wall. There are put in evidence before me a considerable number of
photographs showing that wall, which was plainly a very substantial brick wall.
In particular, there is a plan by the defendants, with exhibit no RC1, showing
that the former wall was 0.6 of a metre in width — that is, pretty nearly two
ft. That wall was treated beyond any question by the immediate predecessors in
title of the plaintiffs, and a predecessors in title of the defendants (that
is, a former owner, but how far back in their chain is not known) as an
undoubted party wall. It was, on the evidence, plainly and beyond any question
or doubt needing any further proof whatever, used in part to support buildings
formerly on the land now owned by the plaintiffs. There were steel girders or
beams — what are sometimes, I think, called ‘I’ beams — keyed into the wall so
as to support structures on the land now belonging to the plaintiffs. Those
beams were removed by the plaintiffs’ predecessors in title in accordance with
proper party wall procedures.
The wall was
treated as the effective eastern boundary of the plaintiffs’ land in the case
of an agreement made with the local planning authority to permit a public
footpath to be run from a riverside walk (it is a long held ambition of many
London boroughs that such a walk be created) down to the public highway running
to the south of both the Albert and the Albion Wharves. That public footpath
was created, as it seems to me almost certainly, as a temporary expedient until
the riverside walk could be continued across the front of what is now the
defendants’ land and on to the Albert Bridge.
The importance
of all those facts is that that wall has been treated by all concerned with
either Albion or Albert Wharves, until the defendants came on the site, as
being, beyond any doubt, first, a
The defendants
are developers and have proceeded to negotiate with the local authority and
obtain planning permission for a new set of buildings on the old Albert Wharf
site. Having negotiated unsuccessfully, they apparently took the law into their
own hands and without any planning permission began developing on the site.
Before they did that, they appointed a surveyor intended to act as their party
wall surveyor in accordance with the London Building Act provisions, thereby
showing that they were well aware of the requirements of the London Building
Act, as indeed must any developer or informed resident of London be. The only
wall which can have been in mind was the wall to which I have referred, which
appears in pink on exhibit RC2. That is the defendants’ exhibit.
The surveyor
having been appointed on, I think, September 15 or thereabouts in 1987, at the
end of September, without a word to anybody and in flat contradiction, as it
seems, of the appointment of a party wall surveyor whose duty it would be to
agree with the neighbouring party wall owners how to deal with the wall, the
wall was demolished. No evidence is put before me as to who demolished it, the
exact date of the demolition, the cost of the demolition, or the reason for the
demolition. It is just said that ‘Oh well, about the end of September it was
demolished’. The plaintiffs, who are of course freeholders of the land but in
large part reversioners because they have let the various industrial buildings
while retaining the immediate title to the open areas usually used as car
parking and so forth, so they are immediately entitled in possession to parts,
knew nothing of this demolition at the time because they are not present on the
site.
On or about
October 15 they became aware that there had been some demolition and that there
were excavations made on or close under the line of the former footpath which
had been, it is to be remembered, to the west of the former wall. They also
began to know that the defendants had applied to the local authority under the
Highways Act powers to close the public footpath. Again, the defendants appear
to have cared little for the legal correctness or rightness of the matter and
have gone ahead and torn up the footpath without any closure order, in the same
way as they began building without any planning permission.
Neither of
those facts is a matter of direct concern to the plaintiff, or indeed to this
court, but it throws some light on their attitude to legal obligations.
The plaintiffs
wrote a letter of complaint by their agents on October 16 1987. There followed
conversations on October 19, the terms of which are in dispute. There followed
various other matters, including a most bizarre affair when the surveyor
appointed by the defendant produced what is called a ‘party wall award and
survey’ relating exclusively and entirely to buildings on the plaintiffs’ land
which cannot under any circumstances be thought — as Mr Ellis for the
defendants agreed — to be relevant to, or to have any connection with, party
wall awards. There followed a visit to the site on November 20 1987, and
thereafter there was a meeting following a solicitor’s letter on December 14
1987 requiring the defendants to stop their trespass. On January 22 1988, Mr
Hoad* for the plaintiffs met with Mr Gilbey, an architect who does not appear
to be qualified but acts in that capacity for the defendants. At that meeting
Mr Gilbey, who had available to him transparencies and other architectural
documents showing the site and line of the building being put up by the
defendants, and the original survey line of the boundary which should have
existed between the two properties, took every step to persuade Mr Hoad that
there was no encroachment. Mr Hoad left that meeting without having either
accepted or denied Mr Gilbey’s contention, having gone there to obtain
information and not to reach conclusions.
*Editor’s note: Mr Hoad was an architect
employed by stephan Zins & Co.
The
difficulty, of course, was that the wall which formed the visible boundary
having been demolished without any sort of word or notice to the plaintiffs at
the end of September, and there then having been extensive excavation and
consequential disturbance on the site, it became extremely difficult (as is
obvious from the various photographs) to determine by eye where any boundary
could possibly lie. No man could have asserted with any real confidence from
looking at the ground: ‘the boundary line lies at this point’. It was therefore
necessary to, and the plaintiffs did, commission a detailed site survey. That
eventually produced the undoubted line, so far as is sworn to, and has been met
by the defendants, who have produced RC2 to which I have referred.
On the
defendants’ own plan and case, at least the large part of the front, that is
the northern, section of the western flank wall of their building lies within
the boundaries of the old party wall. In part, at its very northernmost or
north-westernmost extension, the corner encroaches beyond the western face of
the old party wall into land which under no circumstances can be anything but
the plaintiffs’. The whole of the 20-odd feet of wall shown on RC2, in yellow
superimposed on pink, lies to the west of the old eastern face of the party
wall and thus within the party wall which was truly the joint property of both
sides, and in a position where it could only have been properly put after
either an award under the London Building Acts or an express agreement between
the parties.
In those
circumstances, the plaintiffs seek the unusual relief of mandatory orders for
the actual removal of the structures that have been put in part in trespass
upon their undoubted land and in part in breach of the London Building Acts on
the site of a former party wall to which the Acts apply.
The plaintiffs
further seek an order that there be restraint upon the defendants swinging a
crane over the plaintiffs’ land.
When this
matter first came before the court on March 8 1988 it came by chance before me.
On that day the defendants applied for time, and I granted them time, to get
their evidence in order as to the title and as to the boundaries which plainly
were difficult to establish now, by reason of the activities of the defendants
on the site. I did, however, make an order restraining any trespass by the boom
or jib of the crane over the plaintiffs’ land. It is, of course, notorious that
the use of a crane swinging round from the useful position upon a neighbouring
site is liable to intrude into the airspace of other persons and thereby to
commit a trespass. The matter has been the subject of a good deal of
litigation. It is, in my view, beyond any possible question on the authorities
and the law that a party is not entitled to swing his crane over neighbouring
land without the consent of the neighbouring owner. Upon that basis, I accepted
an undertaking, having said that I should impose an order. An undertaking was
of course just as binding and even more effective than an order, because it did
not need service and a penal notice endorsed upon it in order to bite. The
purpose of the undertaking was to restrain any permission or causation of any
part of the crane trespassing over the plaintiffs’ land. As it seems to me,
that undertaking which I accepted over the effective hearing of the motion can
only properly now be continued, if necessary by order, over trial of this
action. I have heard nothing from Mr Ellis, who has been most eloquent in his
attempt to make bricks without straw, which could conceivably justify the
trespass by swinging the crane over the neighbouring site.
It is to be
noted in this case that the defendants knew that the neighbours were present;
knew that the plaintiffs were the owners because they were told that some very
considerable time ago, in October 1987; erected the crane which must have been
visibly going to travel over the neighbouring site, and never at any time asked
for any permission whatever. They simply, as they did with both the planning
permission and the order to divert the footpath, went ahead and did what they
wanted regardless of anybody else’s rights; simply high-handed expropriation of
rights in defiance of the law.
The more
difficult questions arise as to whether I should make mandatory orders for
removal of structures (a) on what is expressly admitted by the defendants to be
a trespass on the plaintiffs’ undoubted land as to the north-western corner
(though only for a width of perhaps five inches) and (b) erected in, as it
seems to me, an undoubted, and beyond any question, breach of the London
Building Acts by placing the new wall over and along the line of the former
party wall. I cannot see that there is any arguable case on the defendants’
side for suggesting that the former wall was not in truth a party wall; and
upon that basis the new wall, coloured yellow on RC2, wherever it overlaps the
pink must be a breach of the London Building Acts and an illegal, unlawful
erection.
On that basis,
as it seems to me, there really is a case warranting the very unusual course of
the court in ordering interlocutorily and without more ado, without any trial
or cross-examination, that these structures should be removed. I cannot see
that any court could ever say that a trespass by the building of a structure on
a neighbour’s land, in circumstances where the neighbour has in no way
encouraged but has at all times protested against the building, where the
neighbour would have had great difficulty in establishing the boundary after
the works had been started, and where the neighbour
of the structure. In my judgment, no court could conceivably refuse to that
neighbour the right to possession of his own land and the right to removal of
structures wrongly placed on it. As it seems to me, there is not a question of
discretion; it is a question of right; and in my view there is no question of
arguable case and balance of convenience so far as concerns the trespass.
So far as
concerns the building in breach of the London Building Acts, it seems to me
that similar propositions must apply. The defendants do not suggest for a
single moment that they have at present any right to maintain the yellow wall
shown on RC2, or any other wall that overlaps the former party wall. They do
not put up any argument to suggest in a credible way that that wall was not, as
it appears to me irrefutably that it was, a true party wall with each party
entitled to the use and benefit of the whole of it. As it seems to me, it is
just as bad a case of invasion of a legal right to tear down a party wall and
put up your own wall in flagrant defiance of the most important provisions of
the London Building Acts, enacted now for over a century to protect
neighbouring owners in this crowded city, as to commit a straightforward
trespass.
To my mind,
although I agree it is an unusual order, and although it may be the defendants
will suffer very substantially thereby, I should make a mandatory order for
demolition. I bear in mind that Mr Ellis asserts that it might be that one day
his clients might get a party wall award permitting them to maintain the yellow
wall within the boundaries of the former pink wall. As against that there has
been no attempt whatever to take advantage of any of the regular processes
available, all of which were known expressly to the defendants and which they
deliberately chose not to exercise and take (chose by their agents, their
employed surveyor). In my judgment, they have disabled themselves from any
claim to maintain that wall in that position unless and until an award has been
made which permits such a wall to be built.
In my view, I
should make orders for the removal of the infringing part of the structures.
That that may or may not cause the whole of the structure to fall down is
something which the defendants have wholly and entirely brought on themselves.
It is a case where they have rushed on beyond any question, hastening to get
their building up, regardless of anybody else’s, whether the public’s or the
private person’s rights. As it seems to me, the orders sought which require the
replacement of the footpath on the eastern boundary is a matter which ought
also to be ordered. There is a most unhappy story attached to that part of the
matter, since Mr Ellis (no doubt on instructions) asserted this morning that he
had no particular contentions to offer upon order no 4 because the defendants
had completed, in effect, the restoration of the footpath and were not in the
least vexed about the future of it.
However, at
2.10pm, when I sat following the short adjournment, Mr Ellis had to rise, and
did so, to say that he was now instructed that part of the site huts used by
the defendants in the course of their building works stand upon the former
footpath land. That must be a plain trespass; that must be something which they
should be ordered to remove; and that obstruction must be something which they
should not be allowed to continue. On that basis it is shown to be necessary
that the defendants be ordered mandatorily to replace the footpath along its
previous line, as specified in the draft minutes of order. To my mind, the orders
sought which I should now make are:
In para 1 of
the notice of motion, the restriction on the use of the crane.
I will not
make orders under paras 2 and 6, which are by reference to the former party
wall now demolished, which Mr Burke today does not press and seeks to have
stood over to trial, as I will do, since those matters might well be ordered at
trial but are not perhaps appropriate to be ordered now.
I will make an
order under para 3 as to the replacement and restoration of the footpath and,
in addition, an immediate injunction restraining any further trespass upon any
part of the site of the former footpath, since the huts appear to be so
standing.
I am not
minded to make an order under para 4, which seeks a mandatory order for the
erection of a chain link fence to the west of the line of the footpath so that
there should be proper security and separation between the land occupied and
used by the plaintiffs and their tenants, and the land where the surface is
dedicated to the public for passage. As it seems to me, that is a matter which
can be adequately dealt with by compensation in damages. It is a matter
entirely within the plaintiffs’ own land. It is a thing the plaintiffs can
commission a contractor to do tomorrow, and they can thereafter present the
bill, with a high degree of certainty that they will be able to recover the
reasonable and proper cost from the defendants, who are after all the owners of
a substantial site and one would assume are likely to be good for the damages
for that matter. It seems to me, therefore, that I should not make an order in
terms of para 4.
Para 5:
permission to the plaintiffs to do any works, in particular in connection with
para 3, which is the replacement of the footpath, seems to me an order which
may reasonably be necessary and incidental, since the plaintiffs will wish to
go on to that land to supervise the defendants’ reinstatement of the footpath.
Para 6 is not
pressed today.
Para 7 seeks
an order to restrain the defendants from excavating or constructing (and that
is now particularly material, constructing) any building to the west of the
position of the eastern face of the former party wall. That involves the
construction of the upper floors of the proposed new building on the yellow
wall line shown on RC2, to the southern end of that line. It is wholly within
the old party wall structure, and in my view it should not be permitted to be
continued and I shall make an order in the terms of para 7.
Para 8 is the
mandatory order requiring removal, and in my view that ought to be ordered. Mr
Burke suggests that one month would be a proper time for that. I will listen to
Mr Ellis if he wishes to make submissions. There is no evidence from his side
that one month is not a proper time.
Para 9 is
simply a negative order to cease works encroaching on Albion Wharf or on the
said land. If and in so far as that does not overlap with para 7, it seems to
me a necessary and proper order.
Accordingly, I
propose to make orders in the terms of the notice of motion, save as I have
mentioned.
