Matthew Hearsum Solicitor & Arbitrator [email protected] Bad Smells, Bad Neighbours and Basement Excavations Dispute Resolution Team REDHILL

Matthew HearsumSolicitor & Arbitrator

[email protected]

Bad Smells, Bad Neighbours and Basement Excavations

Dispute Resolution Team

REDHILL | WOKING | WIMBLEDON | CAMBERLEY


Legal Roundup of 2011

• Seeff - v - Ho [2011] EWCA 186

• Hirose Electrical - v - Peak Ingrediants[2011] EWCA 987

• Jones & Lovegrove - v - Ruth & Ruth [2011] EWCA 804

• Williams v Taylor – Moot

• Some lessons from the coalface


Seeff - v - Ho


314 & 316 Whitchurch Street, Edgware


Is informal consent sufficient?

“31. Plainly when a neighbor seeks to do work that affects another neighbor, informal conversations as to what is proposed are

highly desirable. However an informal discussion over the garden fence cannot, in my view, be taken objectively as a simple consent to proceed with the work without more. A neighbour who has given the consent would obviously

expect that, if planning permission was required or consent under the Party Wall Act was needed, the processes would be put in train and the obligations imposed by the planning authorities or

under the Party Wall Act observed as a condition of consent.”









Thomas L.J.:-


Is informal consent sufficient?

“36. …The [1996] Act makes it mandatory to give notice in respect of work defined in the Act.

Thomas L.J.:-


Injunction -v- Damages

1. If the injury to the injured party’s legal rights is small;

Shelfer v City of London Electric Lighting Co Ltd

2. If the injury is capable of being estimated in money;

3. If the injury can be adequately compensated by a small money payment; and

4. If it would be oppressive to the infringing party to grant an injunction.


Measure of Damages

“representing such a sum of money as might reasonably have been demanded by the claimant from the defendant as a quid pro quo for permitting the invasion of the claimant’s right.”

Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798

HHJ Copley: £200X Court of Appeal: £500


Conclusions

1. Informal consent is not sufficient – follow the Act!

2. Act quickly for an injunction – delay will leave you with damages only

3. Damages are assessed on a Wrotham Park basis – and unlikely to be substantial

4. Damages should be resolved by surveyors – more on that later…


Hirose Electrical - v - Peak Ingredients


20 & 22, Crownhill Industrial Estate

1993 Hirose moves in

No. 22No. 20

2002 Peak moves in

2008 Hirose moves out


Nuisance – the Basics

1. Claimant must have proprietory or possessory interest in the land

2. Substantial interference with Claimant’s use or enjoyment of land

3. The interference must be unreasonable

(a) Abnormal Sensitivity of Claimant

(b) Time and duration of interfearance

(c) Conduct of Defendant

(d) Nature of the Locality(d) Nature of the Locality


Nuisance – the Basics

“what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey .”

Sturges v Bridgman


Judgment

“115. …I do not think that the reasonable user by an occupier of industrial premises on an industrial estate becomes a nuisance because of inadequacies in the party wall dividing its premises from its neighbour for which it is not responsible”

N Strauss QC (sitting as Deputy Judge of the High Court)


Grounds of Appeal

1 & 2. Failed to consider whetehr, having regard to the pourus wall, Peak could ever have been a reasonable user

3. Whole estate being “light undustrial” does not means Units 20 and 22 were suitable for Peak’s activitiesX

4. Wrong to say smells were not a nuisanceX


Judgment

“42. The porous nature of the party wall was relevant to the penetration of the smell into Unit 20 and as a subject of remedial work, but no blame on that point could be allocated to the parties or to the landlord. It is a matter for regret that the parties and the landlord were unable to make progress on insulation measures…”

Mummery L.J.:-

“42. The porous nature of the party wall was relevant to the penetration of the smell into Unit 20 and as a subject of remedial work, but no blame on that point could be allocated to the parties or to the landlord. It is a matter for regret that the parties and the landlord were unable to make progress on insulation measures…”


Conclusions

1. Decision is inconsistant with earlier authorities e.g. Bradburn v Lindsay and Brace v South East Regional Housing

(a) But were not drawn to the attention of the Court of Appeal

2. Liability for nuisance ony is breach of positive obligation to repair.

(b) Not safe to rely on pre-1996 Act decisions


Jones & Lovegrove - v - Ruth & Ruth


101 – 105 Lower Thrift Street






Complaints

1. Excessive and perisitent noise and vibration

2. Cracking to walls of 105

3. Trespassed by cutting in holes and inserting purlins

4. Trespassed by erecting scaffolding & storing building materials

5. Boundary wall part damage and part demolished

6. Anti-social behaviour and lesbophobic remarks

7. Personal Injury – Back pain caused by anxiety and depression


Negligence

1. A duty of care

2. Breach of that duty

3. Breach causes the harm

4. Type of injury was reasonably forseeable


Protection from Harassment Act 997

1. “Course of Conduct” i.e. two or more occasions

2. That causes “Harrassment” i.e. Alarm or distress


Judgment

H.H.J Wilcox.:-

“It is a feature of this sad case that Mr Ruth throughout has failed to be open and transparent in relation to the scope and timescale of his building activities both at 101 and 103 Lower Thrift Street. He took the view that 103 was his house and he could do whatever he liked to it, and in it, at anytime that he chose convenient to the operation of his business and his development activities. He is clearly a hardworking and industrious man who is intolerant of criticism




Damages

1. Trespass: £45,000

2. Nuisance: £30,000

2. Personal Injury: £0.00


Appeal

1. Jones & Lovegrove

(a) Forseeability of Injury not a requirement of Harrassment

(b) General Damages: £28,750

(b) Loss of Earnings: £115,000


Cross-Appeal

1. Wrotham Park – 5% of increase in value as the result of the unlawful works

2. Adjusted for:-

(a) Reluctance on behalf of Ajoining Owner to allow infringment

(a) Desire by Building Owner to undertake works

3. On this case, one third of the increase in value: £15,000


Conclusions

1. Building Owners that:

(a) Unreasonably prolong works

(a) Cause Alarm or Distress of Adjoining Owners

Can be held liable for substantial damages – in this case £158.750!

Plus legal costs!


Conclusions

1. How to assess damages for unlawful works

(a) Starting point: 5% of increase in value as the resultof unlawful works

(b) Adjust for:

(i) Building Owner’s enthusiasm for the right to infringe

(ii) Adjoining Owners’ Reluctance to allow infringement


Williams - v - Taylor(Moot)

Judgment not yeat avaliable – Sorry!


Result

1. Concept of “raising downwards” is incorrect

(a) Standard Bank v Stokes is not authority for the idea

(b) Rights to increase the Party Wall are set out in s. 2(2) of the 1996 Act:

Increase in Height: “Raise”

Increase in Width: “Thicken”

Increase in Depth “Underpin”


Result

1. A reinforced foundation is a reinforced foundation

(a) Does not cease to be a special foundation because also used as a wall

(b) Casting mass concrete or similar blinding underneath does not stop it being a special foundation

“a five-pronged instrument used for digging earth is a fork, no matter how much the parties insist it is a spade”


Result

1. Duty on surveyors to consider future development rights of Adjoining Owners

2. Indemnity in s. 7(2) is very wide


Lessons from the Coalface


Lesson 1 – Correspondence

Assume that every letter you write will be seen by a Judge

“I am sure many of the surveyors that have had the misfortune to cross your path for the first time dismiss you as a poorly informed windbag”

“If we didn’t have a third surveyor in place I would catagorise what you do as criminal”

“I am wondering whetehr you are operating from a position of being entirely balanced and rational”


Lesson 2 – Ten Day Notices

Make them :

Specific: Give a date by which they must act, as “ten days is ambiguous – Ten days from when?

Measurable: Set out clearly what it is you are asking them to do

Attainable: Make sure you are not asking them to do the impossible e.g. act outside jurisdiction

Do not give them the ammunition to challenge the validity of your request!


Lesson 3 – Take early Legal Advice

1. The day before the Appeal deadline expires is too late!

2. If complex issues with notices e.g. deceased owners, trust corporations, complex arrangement of leaseholds and freeholds

3. Injunctions are easier to obtain if you act fast

BUT injunctions are not the only option


Thank you

Notes are published on my blog:

partywallsolicitor.wordpress.com

Documents

Matthew Hearsum Solicitor & Arbitrator [email protected] Bad Smells, Bad Neighbours and Basement Excavations Dispute Resolution Team REDHILL