This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
It may be thought surprising that a dispute concerning the collapse of a dividing wall between properties, resulting in damage to adjoining properties could result in years-long litigation, ultimately decided by the Court of Appeal.
That the recently reported case of Coope v Ward has done exactly this, and is exciting interest amongst property professionals, reflects the degree of uncertainty which still exists in a number of areas of the law governing the responsibilities of landowners for the hazards which exist on their land, but which have arisen without their fault. Some useful general statements of legal principle emerge from the judgment.
In summary, the facts of the case were that:
- a wall which provided support to the property of the Wards (originally the claimants but appellants to the Court of Appeal) – a property situated at a higher level than the gardens of the adjoining properties owned by the defendants on the other side of the wall – collapsed in 2010 following heavy snowfall;
- the collapse of the wall resulted in damage, and it was clear that if steps were taken to remove the bricks and spoil resulting from the collapse there was an obvious risk that more spoil would cascade causing further damage; and
- none of the owners of the properties was found to be at fault in the context of the original collapse of the wall.
However, the court decided that:
“the essence of the situation is that, after the collapse, there was, on account of the defective condition of both properties (which resulted from circumstances for which neither owner was legally responsible), a real risk that damage would be done to both of them… even if nothing was done, as well as if steps were taken to clear up the collapse that has already occurred”.
In terms of the law applicable to such circumstances, the parties argued (but on the facts unsuccessfully) that a right of support had come about as a result of the existence of the wall for many years.
The law of nuisance
In the absence of a prescriptive easement, one might next consider the law of nuisance: in summary, this involves doing something on adjoining or nearby land which constitutes an interference with the utility of the claimant’s land, with the primary defendant being the person who causes the nuisance by doing the acts in question. The judges in both the County Court and the Court of Appeal acknowledged that there was no duty on the part of the claimant or the defendants prior to the collapse: neither were aware of the risk of damage occurring and there was nothing to alert the parties to the imminent danger of collapse of the wall.
The law of negligence
The courts therefore went on to consider the law of negligence and earlier case law, including a case decided in 1967 (Goldman v Hargrave) in which a tree was struck by lightning and caught fire. The tree was cut down, but no steps taken to prevent the fire from spreading. The fire was left to burn itself out, although it could have been extinguished with water. The weather changed resulting in the fire reviving, spreading and causing damage to other properties. The property owner was not responsible for the initial damage caused by the fallen tree, but was held responsible for the subsequent damage caused by fire.
An occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land, to remove or reduce such habit hazards to neighbouring land. The existence of such a duty must be based on knowledge of the hazard, the ability to perceive the consequences of not checking or removing it and the ability to abate it. The standard of care applicable is what it is reasonable to expect of the occupier in the circumstances.
In a more recent case in 2003 (Abbahall Ltd v Smee) the Court of Appeal addressed a case where due to the defendant’s failure to maintain a roof there was a danger of falling masonry and water leaked into ground floor premises owned by the claimant. The defendant did not have a covenant to repair, but the Court of Appeal decided, on application by the claimant to enter the defendant’s property to carry out repairs, that both the claimant and the defendant should contribute to the cost of repairs: an occupier of property is under a duty to do what is reasonable in the circumstances to prevent or minimise a known risk of damage to his neighbours or their property and that in determining how the burden of meeting the cost was to be born, the court should strive for a result which was fair, just and reasonable, applying the concept of reasonableness between neighbours.
The court's decision
In the case of Coope v Ward, the court decided the following:
- Neither the claimant nor the defendants owed any duty prior to the collapse of the wall in 2010.
- Both the claimant and the defendants owed a "measured duty of care" once that collapse had occurred – despite the initial collapse not being their fault.
- On the facts (full details of the claimants’ proposed engineering solution were not supplied to the court) the Court of Appeal decided “it was not just and reasonable to impose on the Coopes a liability to contribute to the cost of some as yet unspecified engineering solution.”
- However, recognising that the Coopes were under a duty, the court made it clear that its judgment did not mean they had no obligations: “it may, for instance,… be incumbent on them in the future to allow the Wards access to their land in order to enable works to be carried out on the Wards’ land and to remove whatever impedes such access, or to allow their land to be used for propping or otherwise”.
Whilst providing some useful general statements of principle, it is also clear from the outcome of and statements made in the judgment that the outcome of this type of case is likely to be highly fact sensitive and to involve the exercise of judgement in deciding what is reasonable in all the circumstances between neighbours.
