Loss of stability — Subsidence — Property development — Excavations — Damage to adjoining land — Shoring works — Threat of further subsidence in future — Owner of adjoining land carrying out work to restore land to former state of stability — Whether cost of works recoverable from party causing original damage — Damages for interference with natural right to support — Official referee deciding that no claim available to recover cost of works — Court of Appeal upheld that decision
Bardgrove was a property development company and Willmott was the building contractor employed by Bardgrove as main contractor for carrying out the development of a site known as the Oxgate Centre (“the development site”). The bank was the lessee and occupier of premises known as Oxgate House, Oxgate Lane, London NW2, which adjoined the development site with which it shared a common boundary. The question in this case was the extent of the liability upon Willmott for interference with the bank’s right of support to its land. This was a right which attached to the land. In March 1985 Willmott excavated the development site exposing at the common boundary with the bank’s land a vertical earth face. It erected temporary works in the form of shoring. Despite that temporary protection, the bank’s land subsided along the line of the boundary between its premises and the development site with the result that physical damage was caused to a roadway on the premises. Damage was also occasioned to a plinth and fence and a pipe carrying gas supply was ruptured. Upon the damage becoming evident, the temporary works were modified. The unconsolidated clay was removed and replaced by mass concrete. Thereafter the roadway, plinth, fence and gas supply pipe were repaired. No further physical damage appeared to or upon the premises. Later in 1985 Willmott replaced the temporary shoring with a permanent retaining wall. Although this had for the time being arrested any further subsidence of the bank’s land, it was accepted that there was a probability of rotational collapse occurring within a period of up to 10 to 20 years of its construction. There was no further movement of the bank’s land between the construction of the permanent retaining wall in 1985 and August 1987 when, on their own initiative and upon their own land, ie to their side of the boundary line, the bank carried out steel-piling works to prevent further subsidence and to restore its land to its former state of stability. The construction of that protection eliminated the risk of further rotational collapse within 10 to 20 years which had existed as a result of the shortcomings of the permanent retaining wall constructed by Willmott. The installation of the sheet piling involved the bank in considerable cost put at a figure of £230,000. The issue was whether that was recoverable from Willmott and Bardgrove as damage for interference with the bank’s natural right to support enjoyed as occupier of the land at Oxgate House. The question was whether the occurrence of actual physical damage was a necessary ingredient of the tort of interference with a neighbor’s right to the support of his land or whether the future potential of damage was sufficient. Judge Thayne Forbes QC, sitting as an official referee, adjudged that the bank had no cause of action against any of the defendants. The bank appealed to the Court of Appeal.
Held The appeal was dismissed.
1. The right under consideration was free-standing and arose out of the occupation of land. In that respect it was to be distinguished from an easement, which could be acquired, for instance, in respect of buildings erected upon the land requiring more support than that required in its natural unencumbered state.
2. The relevant authorities precluded the court from holding that, before carrying out the sheet piling, the bank had a present cause of action against either Bardgrove or Willmott in respect of the anticipated damage from the excavations which had not yet occurred but probably would occur in the future: see Bonomi v Backhouse (1861) 9 HLC 503; Lamb v Walker(1878) 3 QBD 389; Barley Main Colliery Co v Mitchell (1886) 11 AC 127; West Leigh Colliery Co v Tunnicliffe [1908] AC 27 and Redland Bricks Ltd v Morris [1970] AC 652.
3. It was now settled law that the owner of land might excavate and remove that land so long as the did so in a manner which did not interfere with the adjacent owner’s right to enjoy his land in its natural and undamaged state; the adjacent owner’s cause of action did not arise unless and until damage actually resulted from the excavation.
4. It was thus open to the injured adjacent owner to bring successive actions as and when new damage occurred, though nice questions might arise as to whether the damage was in truth new damage or merely a manifestation of the original damage.
5. In laying down those principles, the courts had explicitly disclaimed any intention to depart from the fundamental rule that damages resulting from one and the same cause of action must be assessed and recovered once and for all at the same time. That principle had no application to prospective apprehended damage in cases such as this, for the simple reason that the potential risk of future physical damage (even if an established risk) gave rise to no cause of action.
6. The claim in the present case was essentially a claim for damages based on the potential risk (albeit an established potential risk) of future damage by subsidence. It was thus a claim for damages for a wrong which had as yet not been committed. If loss caused by apprehension of future loss did not furnish a cause of action by itself, because there was no legal wrong, the missing element could not be supplied by presenting the claim in respect of future loss tacked on to a claim in respect of a wrong admittedly actionable.
7. Moreover, the bank took it upon itself voluntarily to execute the works without giving Willmott the opportunity of further supporting the land.
8. Notwithstanding the absence of a present cause of action, in respect of prospective damage, (a) it would have been open to the bank to apply to the court by way of a quia timet injunction for a mandatory injunction, compelling Willmott to carry out the sheet piling works and (b) the court would have had the jurisdiction to grant such an injunction provided only that the likelihood of future damage was sufficiently proved and the injunction was in terms clear enough to give Willmott adequate indication of the work that had to be done. No such injunction was sought by the bank.
9. If the bank’s claim were allowed to go ahead, the judge would have to compare the cost of the sheet-piling work with the amount of future damage which the bank would have been likely to suffer if those works had not been carried out. The assessment of that possible future damage would present formidable difficulties, exposing the court and the parties to the inconvenience of a wholly speculative inquiry. The present law required that actual damage was an essential feature of the cause of action.
John Uff QC and Timothy Straker (instructed by Nabarro Nathanson) appeared for the appellant bank; Nicholas Dennys QC and Stephanie Barwise (instructed by Rowe & Maw) appeared for the respondent developers.
