No right in nature of easement to provide protection from weather — Phipps v Pears applied — Adjoining owners entitled to demolish building, subject to compliance with planning and other requirements, without providing such protection to exposed wall — No infringement of party wall rights — Action in any case statute-barred
The plaintiff
in this case, Mrs Marchant, claimed damages for penetration of dampness
affecting her property as a result of demolition operations by the adjoining
owners, Capital & Counties Property Co Ltd, the defendants in the action.
The damage of which the plaintiff complained was caused by the weathering of
the face of a wall exposed by the defendants’ operations. There was no interference
with the plaintiff’s right of support.
The plaintiff
appeared in person; S W Bickford-Smith (instructed by Debenham & Co)
represented the defendants.
Giving
judgment, SIR DOUGLAS FRANK QC said: In general principle, a man is entitled to
do what he likes with his own land. That is subject only to any right which his
adjoining owners may have. Those rights were usually referred to as easements:
the easement of light — the right of light — sometimes called ancient lights,
the right of support where you have a party wall. As in this case, there is a
party wall giving a right of support. One thing is quite clear on the
authorities, and it has been spelt out by Lord Denning in crystal-clear terms
in Phipps v Pears [1964] 2 All ER 35, that the law does not recognise
a right to the protection from weather as such. Accordingly, at common law the
defendants were entitled to demolish that building. When that building was
erected they were under no obligation to provide a protection from weather;
they were not obliged to complete that building. In the same way, they are
entitled to demolish that building, subject to compliance with planning and
other laws. The only right which the adjoining owners have in respect of that
wall is the right of support. That right of support has been maintained and it
was in order to maintain it that an award was made under the London Building
Act. It is therefore beyond question that there can be no claim here at common
law for the penetration of damp.
I turn now to
what I conceive to be the only hope for Mrs Marchant, but in the event it is
illusory, and that was a party wall award. Unfortunately, all that can be
traced of that award is a bad copy of it. There are no signed copies.
Nevertheless, it is clear that such an award was made. Both parties and other
owners appointed surveyors and this award was agreed. All parties acted on the
footing that there was such an award. The award is divided, after the recitals,
into three parts. The first part specifies that the award relates to the party
wall. The second part sets out what the building owner was at liberty to do by
way of carrying out of works. The third part sets out the conditions attached
to the award. In particular, in Part 2, there is power to construct buttresses
and piers. Paragraph (e) of Part 2 says: ‘maintain the exposed face of the
party wall in a weather-proof condition’ and it is only that that could
possibly be read as imposing an obligation on the defendants. In fact it does
not impose an obligation by the very terms of Part 2; it merely gives them a
liberty to carry out those works, whatever they may be. Secondly, even if it
were otherwise, it is clear on the authorities that the surveyors had no power
to impose any such obligations upon the defendants. That would not have been
within the terms of the London Building Act. It therefore follows from all that
that the defendants had not infringed any rights, nor had they failed to carry
out any legal obligations.
Finally, even
if it were otherwise, the defendants plead the Statute of Limitations and Mr
Bickford-Smith properly concedes that time does not begin to run until the
cause of action ought reasonably to have been discovered; that is to say, it
does not run when it could not have been seen, but it does run when it became
apparent. Here on the clearest evidence and admissions, the damp which is the
subject of this complaint first became apparent in 1970. The courts are not
quick to give effect to the Limitation Act in a case like this, particularly as
the plaintiff was voicing her complaints throughout the years. However, the
defendants are entitled to invoke it and if they do and the case is made out
then the courts must give effect to it. So that even if the plaintiff could
succeed in establishing a right or an obligation, this action is statute-barred
by the Limitation Act. Accordingly, the action must be dismissed.
The action
was dismissed with costs.
