The buildings in Phipps, unlike those in Rees, were structurally detached, hence there could be no allegation of a withdrawal of support. Again, there was no allegation in Phipps that the defendant was guilty of a tort in failing to take reasonable steps to prevent or minimise an obvious risk to his neighbour’s property – presumably because the law had yet to be developed along the lines laid down in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough Borough Council (discussed in
In Rees, some of the weather damage was directly attributable to the cracks caused by the lack of support (the right to which was not disputed) and was actionable accordingly. Compensation for the remaining damage was obtained after the court had found that it was sufficiently foreseeable for the purpose of the tortious liability outlined above.
As usefully observed by the court in Rees, the importance of the issues under discussion has been greatly reduced by the provisions of the Party Wall, etc Act 1996.
Q Your summary of Rees v Skerret [2001] EWCA Civ 760 [2001] 3 EGLR 1 (cf the full report at [2001] 40 EG 163), records a successful claim for weather damage due to the demolition of an adjoining building with consequent withdrawal of support. How does this square up with the proposition (derived from the famous case of Phipps v Pears [1964] 2 All ER 35) that you cannot acquire an easement affording protection against the weather?
A The proposition you mention remains good law, but its scope has been shown to be narrower than was commonly thought.
The buildings in Phipps, unlike those in Rees, were structurally detached, hence there could be no allegation of a withdrawal of support. Again, there was no allegation in Phipps that the defendant was guilty of a tort in failing to take reasonable steps to prevent or minimise an obvious risk to his neighbour’s property – presumably because the law had yet to be developed along the lines laid down in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough Borough Council (discussed in PP 2002/62).
In Rees, some of the weather damage was directly attributable to the cracks caused by the lack of support (the right to which was not disputed) and was actionable accordingly. Compensation for the remaining damage was obtained after the court had found that it was sufficiently foreseeable for the purpose of the tortious liability outlined above.
As usefully observed by the court in Rees, the importance of the issues under discussion has been greatly reduced by the provisions of the Party Wall, etc Act 1996.
