Matthew Hearsum Solicitor & Arbitrator Matthew.hearsum@morrlaw

Dispute Resolution Team Bad Smells, Bad Neighbours and Basement Excavations Matthew Hearsum Solicitor & Arbitrator Matthew.hearsum@morrlaw.com 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 Redhill | Woking | Wimbledon | CamberlEy

Seeff - v - Ho Redhill | Woking | Wimbledon | CamberlEy

314 & 316 Whitchurch Street, Edgware Redhill | Woking | Wimbledon | CamberlEy

Is informal consent sufficient? Thomas L.J.:- “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.” “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.” “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.” Redhill | Woking | Wimbledon | CamberlEy

Is informal consent sufficient? Thomas L.J.:- “36. …The [1996] Act makes it mandatory to give notice in respect of work defined in the Act. Redhill | Woking | Wimbledon | CamberlEy

Injunction -v- Damages Shelfer v City of London Electric Lighting Co Ltd 1. If the injury to the injured party’s legal rights is small; 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. Redhill | Woking | Wimbledon | CamberlEy

Measure of Damages Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798 “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.” X HHJ Copley: £200 Court of Appeal: £500 Redhill | Woking | Wimbledon | CamberlEy

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… Redhill | Woking | Wimbledon | CamberlEy

Hirose Electrical - v - Peak Ingredients Redhill | Woking | Wimbledon | CamberlEy

1993 Hirose moves in 2002 Peak moves in 2008 Hirose moves out 20 & 22, Crownhill Industrial Estate No. 20 No. 22 Redhill | Woking | Wimbledon | CamberlEy

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 Redhill | Woking | Wimbledon | CamberlEy

Nuisance – the Basics Sturges v Bridgman “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” Redhill | Woking | Wimbledon | CamberlEy

Judgment N Strauss QC (sitting as Deputy Judge of the High Court) “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” Redhill | Woking | Wimbledon | CamberlEy

Grounds of Appeal 1 & 2. Failed to consider whetehr, having regard to the pourus wall, Peak could ever have been a reasonable user X 3. Whole estate being “light undustrial” does not means Units 20 and 22 were suitable for Peak’s activities X 4. Wrong to say smells were not a nuisance Redhill | Woking | Wimbledon | CamberlEy

Judgment 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…” “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…” Redhill | Woking | Wimbledon | CamberlEy

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 (b) Not safe to rely on pre-1996 Act decisions 2. Liability for nuisance ony is breach of positive obligation to repair. Redhill | Woking | Wimbledon | CamberlEy

Jones & Lovegrove - v - Ruth & Ruth Redhill | Woking | Wimbledon | CamberlEy

101 – 105 Lower Thrift Street Redhill | Woking | Wimbledon | CamberlEy

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 Redhill | Woking | Wimbledon | CamberlEy

Negligence 1. A duty of care 2. Breach of that duty 3. Breach causes the harm 4. Type of injury was reasonably forseeable Redhill | Woking | Wimbledon | CamberlEy

Protection from Harassment Act 997 1. “Course of Conduct” i.e. two or more occasions 2. That causes “Harrassment” i.e. Alarm or distress Redhill | Woking | Wimbledon | CamberlEy

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 “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 “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 Redhill | Woking | Wimbledon | CamberlEy

Damages 1. Trespass: £45,000 2. Nuisance: £30,000 2. Personal Injury: £0.00 Redhill | Woking | Wimbledon | CamberlEy

Appeal 1. Jones & Lovegrove (a) Forseeability of Injury not a requirement of Harrassment (b) General Damages: £28,750 (b) Loss of Earnings: £115,000 Redhill | Woking | Wimbledon | CamberlEy

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 Redhill | Woking | Wimbledon | CamberlEy

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! Redhill | Woking | Wimbledon | CamberlEy

Conclusions 1. How to assess damages for unlawful works (a) Starting point: 5% of increase in value as the result of unlawful works (b) Adjust for: (i) Building Owner’s enthusiasm for the right to infringe (ii) Adjoining Owners’ Reluctance to allow infringement Redhill | Woking | Wimbledon | CamberlEy

Williams - v - Taylor (Moot) Judgment not yeat avaliable – Sorry! Redhill | Woking | Wimbledon | CamberlEy

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” Redhill | Woking | Wimbledon | CamberlEy

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” Redhill | Woking | Wimbledon | CamberlEy

Result 1. Duty on surveyors to consider future development rights of Adjoining Owners 2. Indemnity in s. 7(2) is very wide Redhill | Woking | Wimbledon | CamberlEy

Lessons from the Coalface Redhill | Woking | Wimbledon | CamberlEy

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” Redhill | Woking | Wimbledon | CamberlEy

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! Redhill | Woking | Wimbledon | CamberlEy

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 Redhill | Woking | Wimbledon | CamberlEy

Thank you Notes are published on my blog: partywallsolicitor.wordpress.com Redhill | Woking | Wimbledon | CamberlEy

Matthew Hearsum Solicitor & Arbitrator Matthew.hearsum@morrlaw