Love thy neighbour (or sue them)

There are few countries where property ownership is so highly valued not just financially but also emotionally. Combine that with being a densely populated island, close neighbours and buildings adjacent or even physically connected to each other are commonplace. Access to sites and cramped construction conditions are often encountered, so what happens if something happening on a neighbouring property causes damage to next door? The recent Court of Appeal judgment of Coope and others vs Ward and another [2015] shows that the law can still, despite the alleged culture of blame, find that there is such a thing as an accident.

The case concerned the collapse of a garden wall which divided the gardens of 41 Orchard Road (owned by the defendants) and the gardens of 58, 60 and 62 Armstead Road (owned by the claimants). The problem was that the garden wall had been supporting earth on the defendants’ side which had been built up over the decades by various predecessors of the defendants (although not the defendants themselves). At the point of collapse, the earth was some 9 feet high! Surprisingly, there was no sign that the wall was under any strain until a heavy fall of snow in 2010 triggered the aforementioned collapse with catastrophic results for the claimants.

The defendants kicked off the process by bringing County Court proceedings against the claimants. The County Court held in the defendant’s favour ruling that the parties owed each other a measured duty of care in respect of the consequences of the collapsed wall. No duty of care had arisen before the wall’s collapse because no-one knew that it was going to do this, but after the collapse, it was obvious that there was the danger of more damage to the claimants’ properties. The County Court imposed a financial contribution on the claimants which the claimants appealed arguing that as the collapse was not their fault and as they were the victims they shouldn’t have to pay.

Vigorous demolition or even piling works can, if carried out close to boundaries, not only shake foundations but also bank balances

The Court of Appeal held in favour of the claimants ruling that it was not just and reasonable to make the claimants pay a financial contribution because the claimants shouldn’t have to pay for something which was not their fault or within their control and also because the engineering solution to halt further damage had not yet been identified. The defendants couldn’t claim a contribution to an unspecified solution and the reasonableness of requiring a contribution would depend upon the proposed solution.

The Court did, however, affirm that the defendants were not responsible for the collapse and were not liable in nuisance because the defendants had not created any nuisance nor continued the nuisance when the hidden danger of the wall emerged. The Court also affirmed, in line with previous case law, that the risk of further collapse and more damage (even if not the fault of the person who owned the land from whom the hazard arose) meant that the parties owed each other measured duties of care. This duty of care meant that the claimants had a duty to provide access to the defendants to carry out work to stop further damage.

I suggest however that the above circumstances are unusual. Often risks of such damage are capable of being identified. For example, in the case of Rees vs Skerrett [2001], the defendant demolished his house and became liable for the consequences of the demolition, in this case not only because of removal of support to the neighbouring property but also because the now exposed wall was open to the elements and permeated by rain.

No doubt fellow practitioners will have encountered situations where excavation works to neighbouring sites have led to cracking and structural damage, in some cases leading to the collapse or need to demolish the damaged site due to public danger which in turn has led to the loss of property, personal effects and, in extreme cases, homelessness and of course, significant insurance related claims.

From a practical perspective this means being clear about site boundaries and site conditions. Vigorous demolition or even piling works can, if carried out close to boundaries, not only shake foundations but also bank balances.

Be good to your neighbours when you are carrying out building works next door. For the fatalists out there, you may be comforted that accidents can happen without a writ to follow, but it is clearly best to be careful in order to avoid either or both events.

Laurence Cobb is a partner in the construction and engineering team at Taylor Wessing