Parties owning neighbouring properties – Respondent demolishing property and exposing previously internal dividing party wall – Whether appellant suffering damage as a result of respondent’s breach of easement of support – Whether respondent in breach of duty of care to waterproof dividing wall – Judge dismissing claim – Appeal allowed
In 1983 the appellant purchased a terraced property, 14 Hastings Street, Plymouth (no 14). On 18 January 1999 the respondent purchased the neighbouring property (no 14A). This was subject to a local authority dangerous structure notice, and had planning permission for the erection of a new building on the site. On the same day, Plymouth City Council served a demolition order under the Housing Act 1957, together with a notice to the owner under the Building Act 1984. The latter notice stated that, inter alia, within 30 days of the commencement of the demolition work, the respondent was required to shore up any adjoining buildings and weatherproof any surfaces of any adjacent buildings that were exposed by the demolition. In February 1990 no 14A was demolished. However, only token gestures were made as regards support for no 14 and the weatherproofing of the previously internal dividing wall.
In April 1996 the appellant issued proceedings for damages, alleging that as the dividing wall had not been adequately supported, his property had suffered damage, namely cracking and damp. The judge held that although there had been a breach of the easement of support by reason of the demolition of no 14A, the appellant had not suffered any damage as a result of the withdrawal of that support, as the cracking was attributable to suction damage by the wind. He further held that the respondent was not otherwise liable in negligence. The appellant appealed. He submitted that the judge had erred in concluding that damage caused by the wind as a result of the exposure of the dividing wall was not within the scope of the right of support. He argued that the judge should not have distinguished between the support provided against the downward pressure exerted by the weight of a building’s roof and structure (weight support), and the support given against the effect of the wind not blowing directly onto the wall, but blowing along the front of the house, or along the wall itself, in either direction (wind support). The appellant also submitted that the judge had erred in holding that the respondent was not otherwise liable in negligence, since it was foreseeable that if a previously internal dividing wall were exposed to the elements, it would suffer. Thus, in demolishing his property, the neighbour owed a duty to take reasonable steps to protect the remaining wall.
Held: The appeal was allowed.
1. The judge had been wrong to hold that the cracking resulting from wind suction was not within the scope of the right of support. Wind support was properly to be regarded as an aspect of the support provided by an adjoining building. Although the cracking was not a consequence of the pressure exerted upon the dividing wall, vertically or laterally, by the weight of the other parts of the structure, it was a symptom, and resulted from the fact that the building was unstable as a consequence of the demolition of the structure that had previously provided support, and because the dividing wall itself was subject to outward lateral pressures that it would not have been subject to when no 14A had been in place. It had been somewhat misleading to categorise it as something other than a part of the destabilising effect arising from the pressure of the structure of the building.
2. The finding that cracking damage to the wall was due to withdrawal of support did not establish that the appellant was entitled to all the sums claimed, because the damage partly resulted from damp permeating through the cracks. In relation to that damage, the appellant had to show that the respondent had caused the loss by breach of the common law duty to weatherproof the wall after the demolition. The principle in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 required a defendant to take positive steps at the time of, or consequentially upon, the act of demolishing his own property. He was under a duty to do what was reasonable, in all the circumstances, to prevent or minimise the known risk of damage to the neighbouring property. Accordingly, the respondent had been under a duty to take reasonable steps to provide weatherproofing for the dividing wall once it was exposed to the elements as a result of the demolition: Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] 2 WLR 1396 applied.
* Editor’s note: The second claimant died after the county court judgment had been given; the appeal against the second respondent, who was the owner of 14A after the original building was demolished, was compromised.
W David Spens (instructed by Elliotts, of Bristol) appeared for the appellants; the respondent did not appear and was not represented.
Thomas Elliott, barrister
