Private nuisance – Duty of care – Adjoining landowners – Back garden of appellants’ property abutting that of respondents – Respondents’ garden at higher level than appellants’ garden – Respondent’ garden partly supported by wall on appellants’ side – Wall collapsing under weight – Whether appellants owing measured duty of care to respondents in respect of wall – Whether duty including obligation to contribute to cost of restoration – Appeal allowed
The appellants and the respondents owned residential properties the gardens of which abutted one other. The level of the respondents’ garden had been built up over the years so that it was considerably higher than that of the appellants. By the time the respondents’ acquired their property in 2001, the garden exceeded the height of a separating wall on the appellants’ land and reached the top of a further wall built on the respondents’ side. In January 2010, after heavy snowfall, part of the appellants’ wall collapsed, causing considerable damage. The respondents brought a claim for damages against the appellants.
The judge found that, prior to the collapse, there had been no sign of problems with the appellants’ wall of a kind observable by a lay person and that the appellants had done nothing to interfere with the earth-retaining capability of the wall. He found that the collapse had been caused by the additional loading on the wall from the increasing depth of earth behind it, for which the respondents were not themselves responsible, and had finally been triggered by the extra weight of the snowfall. It was agreed at trial that the respondents had no right of support and that any that might once have existed were extinguished.
In light of those matters, the judge held that: (i) the parties owed a measured duty of care to each other, as adjoining landowners, in respect of hazards arising on their land without their fault; (ii) the duty had not arisen prior to the collapse, since there had been nothing to alert either party to the risk of damage occurring, but arose after the collapse when there was an obvious danger of more of the respondents’ land falling on to the appellants’ land; (iii) it was reasonable to require the appellants to contribute to the cost of reconstruction; but (iv) since it was the respondents who primarily benefited from having a high retaining wall, the appellants’ contribution should be limited to a rateable proportion of funding an appropriate wall or engineering solution, having regard to the proportion of the wall that benefited the respondents’ land, and with no contribution to the height of the wall over 4ft. The appellants appealed.
Held: The appeal was allowed.
(1) An occupier of land was under a “measured duty of care” to remove or reduce hazards to his neighbours that occurred on his land, whether natural or man-made. The existence of the duty depended on the occupier having knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it. The standard of care was whatever it was reasonable to expect of the occupier in the circumstances. In determining how the burden of meeting the cost was to be borne, the court should strive for a result which was fair, just and reasonable, applying the concept of reasonableness between neighbours: Goldman v Hargrave [1967] 1 AC 645, Sedleigh-Denfield v O’Callaghan [1940] AC 880, Leakey v National Trust [1980] QB 485, Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836; [2000] PLSCS 39 and Abbahall Ltd v Smee [2002] EWCA Civ 1831; [2003] 1 WLR 1472; [2003] 2 EGLR 66 applied.
The measured duty of care could arise where the hazard to the neighbour consisted of a lack of support for the neighbour’s land, arising from the state of the property from which support was necessary. The duty was not dependent on the existence of any form of easement, nor did the existence of an easement preclude the existence of such a duty. Whether the duty of care existed was to be determined by the law of negligence, not the law of property: Leakey and Holbeck Hall applied.
The judge had been entitled to find that, following the collapse, there was a hazard on both properties. The current state of the appellants’ land, arising from the collapse, was such that it provided insufficient support to the respondents’ land, leading to a risk of further collapses which could damage both properties. That risk, which resulted from circumstances for which neither owner was legally responsible, existed regardless of whether nothing was done or steps were taken to clear up the collapse that had already occurred. In those circumstances, the judge was entitled to find that there were measured duties of care on both sides: Rees v Skerrett [2001] EWCA Civ 760; [2001] PLSCS 123 applied.
(2) However, it was not just and reasonable to impose on the appellants a liability to contribute to the cost of an engineering solution that was as yet unspecified. There was no clarity as to what solution would, or could, be put into effect. It was not acceptable for the respondents to claim a contribution to a solution without identifying with some specificity what solution they proposed, since the reasonableness of requiring any contribution might depend on what the solution was to be. Further, the foremost cause of the collapse was the overloading of the respondent’s property with earth over the years. It did not seem reasonable to require the appellants to pay for what was neither their fault nor within their control. While the respondents were not personally at fault, responsibility for the collapse lay on their side of the fence and arose from the additions of earth made by the occupiers of their land. In those circumstances, while the appellants might have some obligations on account of a measured duty of care towards the respondents, that duty did not extend to making the contribution ordered by the judge.
Jessica Brooke (instructed by Best Solicitors, of Sheffield) appeared for the appellants; Brie Stevens-Hoare QC and Morayo Fagborun Bennett (instructed by the Bar Pro Bono Unit) appeared for the respondents.
Sally Dobson, barrister
