A building owner is only liable to compensate an adjoining owner for damage resulting directly from its works executed in pursuance of the 1996 Act.
The Court of Appeal has considered this issue allowing an appeal from the county court in Taylor v Jones and others [2024] EWCA Civ 170.
Taylor owned the lower ground floor flat and garden comprising Flat 1, 9 St George’s Terrace, London NW1.
He wished to extend his flat by building out into the garden the end of which adjoined the rear wall of 5 and 6 St George’s Mews, owned respectively by the Joneses and Spriggs.
Taylor’s works involved removing the terracing down from the first-floor level of St George’s Mews to lower ground floor level, underpinning the side and end walls and constructing a new living room with garden terrace over.
The low-level garden between the new living room and the back wall was 2.5m lower than the previous level.
Unknown to all there were significant problems with 5 and 6 St George’s Mews which pre-dated Taylor’s works. A large horizontal crack had developed in the rear wall at the level of the damp proof course which meant that the rear wall was unsupported by its foundations and an arch had formed.
Extensive voids had also developed beneath the floor slabs and beneath the internal masonry walls where they abutted the rear wall.
Experts agreed that Taylor’s works had caused the necessary movement – 2mm – to break the arch which in turn caused the internal walls and floor slab to drop by 40mm.
A third surveyor found Taylor responsible for the full extent of the subsidence to the adjoining owners’ properties and the county court judge, on Taylor’s appeal, upheld that decision. There was no evidence that in the absence of Taylor’s works the DPC crack would have come to light and the respondents have been required to underpin the wall.
Taylor appealed again, arguing that he was not liable for making good pre-existing damage. The remedial works required the remaining part of the rear wall under 5 and 6 St George’s Mews to be underpinned, the internal walls underpinned or the foundations thickened, the voids filled and the slab relaid.
Theoretically the works could be done without underpinning the rear wall but no engineer would approve such a scheme.
However, while the Court of Appeal agreed that such underpinning was “non-optional” it was not necessary in order to repair the damage to the internal walls and slabs caused by Taylor’s works and so Taylor was not liable for those costs.
Louise Clark is a property law consultant and mediator
