Party wall — Demolished without proper notices being given — New building encroached on adjoining property — Allegation of trespass — Failure to comply with procedures under London Building Acts — Whether mandatory injunction could be granted — Whether building work constituting a trespass should be pulled down under interlocutory proceedings — Whether crane trespassing in airspace
The plaintiffs own Albion Wharf, property on the south side of the Thames in London between Battersea and Albert bridges. The defendants are owners and developers of the adjoining property to the east known as Albert Wharf. Neither property has been used for wharfage purposes for many years. Between the two properties there was a wall some two feet thick; this wall had always been treated by the present owners’ predecessors in title as a party wall. In September 1987 the defendant developers by their contractors commenced development work on the site; this was in advance of the expected grant of planning permission. On September 15 they appointed a party wall surveyor under the provisions of the London Building Acts (Amendment) Act 1939, and at the end of September they demolished the wall. They also erected a crane the jib of which passed over the airspace of the plaintiffs’ property, and commenced new building work on the boundary.
The plaintiffs, who are not in possession of the property, first learnt of the works on October 15 1987 and the next day made their objections known. In December 1987 the plaintiffs’ solicitors demanded an end to the trespass. In the present proceedings they sought injunctions to prevent the trespass by the crane jib and to remove the building work that encroached on their land. They put in evidence their title, showed the position of their east boundary by a site survey, and contended that as the new building work encroached on their land, it either needed their consent or an award under the London Building Acts (Amendment) Act 1939.
Held 1. There was no arguable case for saying that the original boundary wall was not a party wall; its removal and the new building work constituted a trespass and a breach of the provisions of the London Building Acts (Amendment) Act 1939. In the present case the plaintiffs had protested from the start and had acted throughout reasonably. They were entitled to recover possession of their property: it was not a matter of discretion. Although it was unusual to order the removal of building work by way of interlocutory proceedings, the defendants were aware of the proper procedures under the London Building Acts (Amendment) Act 1939 and had not followed them: “if [the new building] falls down the defendants have brought it on themselves”. 2. It is a clear trespass to swing the jib of a crane over the airspace of adjoining property: Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173.
Interlocutory orders were granted to restrain further excavation and building work and for the removal of the building work constituting the trespass west of the line of the east face of the original party wall; for the replacement of a footpath; and to restrain the use of the crane.
Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd
[1987] 2 EGLR 173 followed.
Jeffrey Burke QC and Roy Lemon (instructed by Rayner De Wolf as agents for Clarksons of Exeter) appeared for the plaintiffs; and Roger Ellis (instructed by Julian Holy) appeared for the defendants.
