Plaintiff and defendants having common boundary – Defendants removing support – District surveyor taking action under section 78 of the Building Act 1984 – Plaintiff rebuilding garage – Whether plaintiff entitled to damages on basis of demolition and reconstruction – Whether plaintiff entitled to recover amount of liability to local authority – Judgment for plaintiff
The defendant, the owner of 41 Gladstone Park Gardens, Cricklewood, London NW2, shared a common boundary with the plaintiff, the owner of 36 Dollis Hill Avenue, Cricklewood, London NW2. On the plaintiff’s side of the common boundary was a driveway leading to a garage which extended from the side of her house to the edge of the defendant’s land. In 1989 the defendants successfully applied for planning permission to build in their rear garden. In 1994 work began and the defendants dug under the plaintiff’s garage and drive and wooden strutting was erected as a support. A building control officer gave instructions that the work was to stop and that trench sheeting along the boundary adjoining the plaintiff’s land was to be installed. Subsequently a district surveyor inspected the site and took action under section 78 of the Building Act 1984 because the trench sheeting had not been shored. The local authority entered the plaintiff’s property and erected substantial additional shoring by way of steel scaffold poles. In 1996 the scaffolding was removed, the garage was demolished and part of the drive, which had collapsed, was restored by the defendant.
The plaintiff issued proceedings asserting a right of support and alleging that the removal of that support, and trespass by reason of the defendant’s excavations, had resulted in the collapse of the drive, subsidence of the garage, cracking to the walls of the house and the action taken by the local authority under section 78 of the 1984 Act. The local authority were joined as a third party. The defendant claimed that he had had the plaintiff’s free and informed consent to his proposals, including the undermining and underpinning of her garage.
Held Judgment was given for the plaintiff.
1. The defendant had not obtained the plaintiff’s authority to trespass on her property by undercutting her garage. The defendant’s works has caused the garage to move away from the plaintiff’s house and rebuilding had been the most appropriate and reasonable way of dealing with the situation and accordingly the plaintiff was entitled to damages on that basis.
2. Although the plaintiff had required the defendants to cease work, it was not an operative or sufficient reason for the defendant’s failure to shore the driveway and therefore the defendants were liable for the removal of support from the driveway. The amount of the liability of the plaintiff to the local authority for the shoring of the driveway under section 78 of the Act was in principle recoverable from the defendants as damages for trespass: see Midland Bank plc v Bardgrove Property Services Ltd (1992) 60 BLR 1, distinguished.
Christopher Coney (instructed by Kenneth Shaw & Co) appeared for the plaintiff; Alexander Nissen (instructed by Colman Coyle) appeared for the defendants; the third party, Brent London Borough Council, did not appear and were not represented.
