Dispute between owners of neighbouring properties involving a party wall — On one side the wall formed part of the structure of a clubroom belonging to a public house owned by a brewery and on the other side it formed part of the adjoining property — Following damage by fire a large part of this adjoining property was demolished and some works were carried out affecting the party wall — Subsequently there was damp penetration through the wall of the clubroom — Discussions took place as to the best method of dealing with this and in the end the owners of the brewery carried out work which included extending the eaves, as a result of which the eaves of the brewery’s property overhung their neighbours’ air space by about 1 ft — In an action before Mr Michael Wheeler QC, sitting as a deputy judge of the Chancery Division, the judge awarded the plaintiffs, the brewery company, £1,150 in respect of the damp caused by the neighbouring owners’ works and refused the latter, the defendants in the action, a mandatory injunction to put an end to the trespass caused by the eaves — The defendants appealed against the refusal of an injunction — Held by Court of Appeal that, having regard to all the circumstances, including the defendants’ behaviour (which ‘demonstrated an attitude in regard to this litigation of extreme pettiness’,
This was an
appeal by Robert Marshall Reynolds and Keith Anderson against part of a
decision dated July 13 1982, of Mr Michael Wheeler QC, sitting as a deputy High
Court judge, in favour of Tollemache & Cobbold Breweries Ltd, the
plaintiffs in the action.
John Slater
(instructed by Vizards) appeared on behalf of the appellants; W Andreae-Jones
(instructed by Turner Martin & Symes, of Ipswich) represented the
respondents.
Giving the
first judgment at the invitation of Sir John Donaldson MR, FOX LJ said: This is
an appeal from an order of Mr Michael Wheeler QC, sitting as a deputy judge of
the High Court in the Chancery Division. The plaintiffs are brewers, and at all
times material to this dispute they were owners of a public house called the
Brewers Arms at Stonham Parva in Suffolk. The defendants at the material time
were the owners of a property adjoining the Brewers Arms called Stonham
Maltings.
The public
house has attached to it on the north side another building which is of two
storeys and has a slate roof. At the end furthest away from the main building
it has on the first floor a largish room, running the whole width of the
building, which is used for various social functions, and it has been referred
to as ‘the clubroom’.
The wall of
the clubroom adjoining the Maltings has been referred to in the proceedings as
‘the Maltings wall’, and I will so refer to it today. Until 1978 it formed the
boundary between part of Stonham Maltings and the clubroom. The judge found,
and it is not now disputed, that it was a party wall. It is a wall in respect
of which the respondents are entitled to a right of support, and for practical
purposes it is also a wall in respect of which the appellants are not entitled
to make alterations which would affect its weather-resisting qualities.
There is a
photograph, which is one of the exhibits in the case, dating from the year
1948, which shows the Maltings wall rising well above the slate roof of the
clubroom. At the bottom of the slate roof was a gutter running the whole length
of the Maltings wall. That gutter was under the bottom of the slate roof of the
clubroom and was dressed into the brickwork of the Maltings wall, and so formed
a necessary channel for the collection and passage of the rainwater.
In 1973 a
large part of the Maltings was burned down. The part directly abutting the
public house was not in fact directly affected, but in the course of time the
roof and the floors fell in, and in March 1978 the plaintiffs’ surveyors wrote
to the defendants and complained of the state of the premises as they were
concerned about the support afforded by the Maltings wall to the public house.
As a result,
it was then agreed that a large part of the Maltings should be demolished. Mr
Anderson, the second defendant in these proceedings, arranged for a demolition
contractor called Mr Rand to do the work. Mr Rand had considerable experience
of maltings construction, and he formed the view that the Maltings wall was a
single party wall.
Mr Rand was
directed to leave two courses of bricks above it — that is to say, where the
Maltings wall abutted on the club wall. There is no doubt that those were Mr
Rand’s instructions.
Mr Rand went
up on the roof. He says that he saw some loose bricks at the east end. He says
that he did remove some bricks, but that was where they were dangerous. He was
told to put in bricks, and put them back at the east end where it abutted on
the clubroom. He did so, and he did various other works, which I need not
detail in this judgment because I think in the way the case has developed they
are no longer material. In particular I should mention that he says he did not
alter the lead flashings which were on the roof or flatten them in any way.
After Mr Rand had
completed his work there remained the question of waterproofing, which had to
be done at the top of the wall. There is evidence that this was done by the
defendants, Mr Reynolds and Mr Anderson, and a Mr Barty, who was Mr Reynolds’
nephew, in September 1978. That involved putting some rolls of lead over a
capping and applying some liquid weatherproofing.
There is no
doubt that the defendants went on the roof for the purpose of doing the work.
Evidence was given that when they were doing it some six or 10 courses of
bricks were standing above the level of the gutter.
The work was
done some time in the early autumn of 1978. In January 1979 the tenant of the
Brewers Arms complained that much damp was coming through the north wall of the
clubroom. An inspection followed, and the plaintiffs found that the top of the
wall was in a very bad condition. They concluded that it was dangerous. They
erected a scaffolding, and it seems that they did not seek the consent of the
defendants for that. That scaffolding was put up in February, and a good deal
of work was done. That included taking down an amount of rotted material from
the top of the wall.
I now come to
what are more crucial matters in the history of the case. On February 6 a site
meeting was held which was attended by Mr Anderson, Mr Jessup, who was a
surveyor employed by the plaintiffs, a Mr Ford from the plaintiffs’ legal
department, a gentleman from the local authority, and a Mr Hart, who was a
director of a firm of builders who did work for the plaintiffs. They all
inspected the top of the Maltings wall except Mr Anderson. Mr Jessup’s
evidence, supported by Mr Hart, was that they found that the main cause of the
water penetration was because the lead flashings of the gutter, which had
originally been folded into the Maltings wall above the gutter, had somehow or
other been flattened. They also found that the bricks were, as Mr Jessup said,
like ‘sloppy clay’, and the damp was where two courses of bricks had been laid
when the Maltings were demolished. The judge came to the conclusion that those
were presumably the two courses of bricks which had been laid by Mr Rand when
he did his work on the wall.
Of the persons
present at that meeting the deputy judge heard evidence from Mr Jessup, Mr Hart
and Mr Anderson. He found certain matters were clear on the evidence, which he
noted at p 9 of his judgment:
(1) Some
bricks had been removed in the course and for the purpose of the inspection of
the top of the Maltings wall.
(2) It was not
possible to do more than guess the construction of the wall merely by
inspection.
(3) There was
considerable discussion about how to overcome the problem of the water
penetration, particularly between Messrs Jessup, Ford and Anderson. . .
(4) Mr
Anderson made no complaint of any kind regarding the erection of the
scaffolding but was not expressly asked to agree to any particular method of
dealing with the damp problem.
But it appears
that Mr Anderson suggested that a possible solution would be by extending the
eaves; he offered slates for that purpose and there was also a suggestion made
by Mr Anderson that the plaintiffs could have the Maltings wall.
At any rate,
nothing was finally agreed upon at that meeting, although the judge expressed
the view that Mr Anderson was primarily concerned with relieving himself and Mr
Reynolds of financial liability and wished to ensure that any necessary work
was done as cheaply as possible, and it was left that either side could get
estimates for the work which they proposed.
I should
mention here that the judge in the end came to two main conclusions. First, he
decided that the damp was caused by the works done by or on behalf of the
defendants (the present appellants), and he decided that the respondents were
entitled to damages. Those damages were ultimately agreed between the parties
at the sum of £1,150. The judge refused to grant a mandatory injunction, which
had been sought by the appellants. What he said as to that was this:
I find it
surprising that if this part of the defendants’ case was a serious claim, it
should have been raised at so late a stage
as it was by
an amendment to the pleadings
I also bear in
mind the attitude which (as I find) Mr Anderson had undoubtedly adopted at the
February 6 site meeting regarding the possibility of adopting the ‘eaves’
method, his offer of the slates and his curious remark that ‘the brewery could
have the wall’. Furthermore, seen against that background I consider that it
was not unreasonable for the plaintiffs to have assumed that the permission
which they sought and obtained in January 1980 to enter the defendants’ land in
order to effect ‘repairs’, included remedying the damp situation by the ‘eaves’
method.
It is clear
that, there having been a trespass
and a continuing
trespass at that
I have
jurisdiction to grant a mandatory injunction such as the defendants seek; but
despite this, is this not a case where damages would have been an adequate
remedy? I observe in passing that the
re-amended counter-claim does not include an alternative claim for damages,
presumably lest such a claim be taken as some form of tacit admission that the
defendants could be recompensed in damages. Here again the defendants are, in
my judgment, open to criticism; having introduced this eleventh-hour claim by
reamendment, it would have been reasonable to expect that the claim would
be accompanied by prompt disclosure of any documents relating to applications
by the defendants for planning permission to develop the Maltings site. But in fact
these documents were not disclosed until very much later and when they were
disclosed they showed that the defendants had already made two separate
planning applications, neither of which was in the slightest degree affected by
the overhang and guttering on the clubroom roof. Indeed, judging by the
photographic evidence, what the plaintiffs have done to the roof and the
Maltings wall seems to me to have considerably improved the view as seen from
the defendants’ property.
So the judge
decided on the claim in favour of the present respondents, and he rejected the
claim for a mandatory injunction.
In effect, the
notice of appeal appealed against both those matters, but on this hearing the
appeal against the first has been abandoned, and the appeal has proceeded
solely on the question of the claim by the appellants to the mandatory
injunction.
At that point
I should deal in a little more detail with what happened after the site meeting
on February 6. On February 15 1979 the appellants’ solicitors wrote a letter to
Mr Jessup, which is quoted by the judge and contains the following passages:
We understand
from our clients that, some time during the course of last week, your company
caused builders to enter upon our clients’ adjoining land, where they erected scaffolding.
This was not free-standing but tied into our clients’ wall for the purpose of
which large untidy holes were made in the brickwork. Furthermore, some 1 1/2 ft
to 2 ft of brickwork off the top of the wall has been demolished by the
builders. The lead capping which our clients had placed on top of the wall,
when the remainder of the building of which it formed part was demolished,
apparently has been removed and is missing. Also we understand that the
activities of the builders may well have caused some distortion of the lead
guttering which protects the roof of the public house; but of course this is
your problem and not that of our clients. These blatant acts of trespass and
damage were done without any prior attempt to obtain permission from our clients
and as such there can be absolutely no excuse.
We gather
that now you have had the courtesy to seek a meeting with our clients whereby
it is apparent that it is your company’s wish that the wall be rendered and
faced off, presumably so as to make it more attractive to coincide with
renovations to the public house, which it appears are long overdue in any
event. It seems that you are entitled to support from the wall in question,
which it presently gives, subject of course to the results of any damage caused
by the trespassing builders instructed by your company. If it is your wish
still to tidy up the look of the wall, then you must make proper representation
to our clients and, of course, bear the costs thereof. In this connection no
doubt you will let us know.
That was, as
the judge observed, a very tough letter, to put it mildly, although I observe
it includes the statement: ‘If it is your wish still to tidy up the look of the
wall you must make representations etc.’
The reply to
that letter was by a letter of February 21 1979. I need only refer to the part
of it which is in subparagraph (6) where it is said:
We expect
your clients to carry out the following —
(a) Make
weatherproof the wall as required by section 29 of Public Health Act.
(b) Repair
internally in clubroom as required and inspected by your client.
(c) We
enclose copy estimate and are aware your clients may obtain another estimate
and use another builder.
(d) Bear
cost of our builder to present time which no doubt has saved your clients a
greater expense.
If your
clients do not agree to (6) above we will have no hesitation in proceeding the
matter further and issuing court proceedings.
That letter
states that there was enclosed with it an estimate. The estimate had
undoubtedly been obtained by the respondents, and it was an estimate for the
eaves work. The appellants deny that they received it.
Despite that,
they never asked the respondents to send the estimate to them, and apparently
they did not think it necessary to obtain an estimate themselves.
On January 24
1980 there is a further letter from the respondents’ solicitors in which they
say:
In the
meantime we enclose an amended statement of claim, service of which please
acknowledge. You will see that this makes an additional claim for the damage
which Tollemache & Gobbold Breweries are or may be liable to the present
tenant arising out of the tenant’s inability to use the function room at the
Brewers Arms. Our clients are conscious of their duty to mitigate their damage
and they recognise that the repairs cannot be put in hand without committing a
technical trespass on your clients’ land. We therefore write to request that
your clients grant permission for ours to enter upon their land for the purpose
of effecting these repairs and ask that you should let us have your reply to
this request with all possible speed.
The reply came
by letter of January 30, saying:
Thank you for
your letter of January 24 which we did not receive until 30th, today. We
telephoned our clients for immediate instructions and, of course, they agree to
your clients entering upon our clients’ land for the purpose of effecting
repairs to your property. In fact we were under the impression that you have
already completed the repairs and we are surprised that you have not asked for
these facilities before.
We look
forward to hearing from you with regard to the remainder of your letter, and of
course we will be serving an Amended Defence to your Amended Statement of
Claim.
In April 1980
the respondents carried out the work to the Maltings wall, which included the
eaves work. Mr Anderson, it seems, did not become aware of this work until May
or June 1981, and Mr Reynolds was presumably not aware of it until even later
because he lives on the Isle of Man.
The eaves
overhang the appellants’ land, the Maltings, by about 1 ft. Mr Slater says that
that is a trespass, and he asks for a mandatory injunction to restore the
condition and remove the trespass.
The
appellants, in my view, are correct in saying, first, that there was here a
trespass, and indeed there is a continuing trespass because the eaves overhang
their land. Secondly, they are right in saying that the court is in general not
justified in awarding damages and refusing a mandatory injunction to compel the
owners of the land in effect to grant the right to the trespasser. Thirdly, I
would accept that this is not a case in which the respondents can establish
that there was an estoppel which would justify them in saying that they have a
continuing right in all the circumstances to have their eaves overhanging the
appellants’ land.
But that is
not the whole of the matter. I think it is necessary to look more closely at
the actual conduct of the parties. The granting of a mandatory injunction is a
matter of discretion, and the court must consider before granting such an
injunction where the justice of the matter lies having regard in particular to
the way the parties have conducted themselves.
In connection
with that there are a number of points to which I should refer. First, the
eaves solution is not something which the respondents simply decided upon
without discussion and imposed by unilateral action upon the appellants. Not merely
was the eaves solution considered at the site meeting, but it is evident that
it was actually proposed by Mr Anderson. In so far as Mr Anderson’s evidence in
any way disputes that, it is clear that the judge in all matters relating to
disputes about the site meeting preferred the evidence of Mr Jessup and Mr Hart
to that of Mr Anderson.
Secondly, at
the site meeting it was left that the parties should obtain estimates. Thirdly,
the respondents did obtain an estimate for the eaves proposal, and there is no
doubt, as the letter itself expresses, that they intended to enclose a copy of
it with the letter of February 20.
Fourthly, let
me accept that the respondents, in error, did not enclose it. The appellants
never told the respondents that they had not received the estimate, and they
did absolutely nothing about it at all, although the eaves solution was
obviously a very live matter at the end of the site meeting on February 6.
Fifthly, the
appellants made no attempt to communicate with the respondents at all during
the next year, although the respondents in fact could not be accused of having
hurried things along unduly, because they did not do the work until April 1979.
No attempt of any kind was made to stop them.
Sixthly, the
respondents by the letter of January 24 1980 wrote to inform the appellants
that they were going on to the land; and while it is perfectly true, as Mr
Slater said, that the letter is in the form of asking for consent for going on
to the land for repairs — because the respondents were concerned about
committing a technical trespass — nevertheless it seems to me, the question of
the eaves having been discussed at the site meeting, that the respondents,
believing that they had sent a copy of the estimate with the letter and had
heard no more about it, might very reasonably be under the impression that it
was perfectly in order for them to proceed as a matter of principle with the
eaves proposal. On that basis their letter of January 24 was directed to
getting formal consent which they might have thought was the only matter which
was really outstanding.
So, looking at
the whole matter, it seems to me that, while I do not suggest there was an
estoppel established, it was not unreasonable for the respondents to proceed in
the way in which they did. By
site meeting I think they might reasonably, but mistakenly, have proceeded upon
the basis that what they were doing had the general approval of the appellants.
In those
circumstances, it seems to me that, while I would in no way underrate the
general importance to a landowner of trespass to his land, a mandatory
injunction is not an appropriate way of dealing with this case. The judge took
the view that it would be oppressive, and I think he was right. I think that in
the exercise of discretion, considering the whole background to this highly
charged matter, that it would not be right to grant the mandatory injunction
which has been sought by the appellants.
The trespass
is, in physical terms, small. However, I do not think that, if the appellants
really believe it is a matter of consequence to them, they should be prevented
from having it remedied. Now in their pleading they ask, in the alternative,
for a declaration that the appellants are entitled, ‘upon reasonable notice to
the plaintiffs, their successors in title or assignees to demand of the same
that they do as is hereinbefore Prayed under Paragraph 2’, which is to return
the wall to such a condition as will enable the appellants to rebuild upon the
same and/or incorporate the same into building works.
I think that
in the whole of the circumstances of this matter it would be reasonable that
the appellants should have that declaration, but upon terms that the cost of
the works which they wish to do is borne by themselves, and I would make an
order accordingly. The precise terms of the declaration they require will be
further considered, but that is the substance of the matter, and I would so
dispose of the appeal.
Agreeing,
ACKNER LJ said: Mr Slater in his able submissions reminded us that in boundary
disputes emotions tend to run high. I regret to say that the appellants have
demonstrated an attitude in regard to this litigation of extreme pettiness. For
the reasons which the learned judge gave and which have been summarised by my
lord, he was perfectly entitled to conclude that it was not unreasonable for
the respondents to have assumed that the permission which they sought and
obtained in January 1980 to enter the appellants’ land in order to effect
repairs included remedying the damp situation by the eaves method. That was a
sensible, straightforward and inexpensive way relatively of dealing with a
difficult problem.
We have seen
photographs of the results. It cannot be doubted for one moment that this work
has much improved the appearance of the clubroom from the appellants’ premises.
The appellants
have obtained planning permission to carry out work on their land. That
permission at present does not include any development involving building up
against the party wall. Of course there is the possibility that such a
development might be sought and approved, but it is a remote possibility. What
they seek to do is to render useless the several thousand pounds spent on carrying
out this useful and aesthetically acceptable work to the clubroom merely in
order to exercise their right to prevent a technical trespass on 1 ft into the
air space along the south side of their premises abutting on to the club
premises. Good sense apparently has not persuaded them to leave well alone. It
is my hope — which I hope is not over-optimistic — that simple economics may
achieve that end.
I accordingly
wholly agree with the order proposed by my lord.
THE MASTER OF
THE ROLLS also agreed and did not add anything.
The order was
made as proposed by Fox LJ. The respondents were awarded 75% of their costs.
