Coope and Others v Ward and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Bean,Lady Justice Arden |
| Judgment Date | 28 January 2015 |
| Neutral Citation | [2015] EWCA Civ 30 |
| Docket Number | Case No: B2/2013/2677 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2015 |
[2015] EWCA Civ 30
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
HHJ Robinson
1SE00423
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Christopher Clarke
and
Lord Justice Bean
Case No: B2/2013/2677
Ms Jessica Brooke (instructed by Best Solicitors) for the Appellant
Ms Brie Stevens-Hoare QC and Ms Morayo Fagborun Bennett (instructed by Bar Pro Bono Unit) for the Respondent
Hearing dates: 28 th October 2014; additional material supplied 11 th– 14 th November 2014
This is an appeal from the judgment of His Honour Judge Robinson, given in the Sheffield County Court on 17 July 2013, following a hearing between 8 and 12 July 2013. The central issues in the case are (i) whether the Appellants, owed to the Respondents a "measured duty of care" which, in certain circumstances, may arise as between adjoining landowners in respect of a hazard arising on their land without their fault; (ii) what that duty amounted to; and (iii) whether the appellants were in breach of it.
The properties and their owners
Armstead Road and Orchard Lane are two streets in Beighton, Sheffield which are broadly parallel to each other. Armstead Road is largely composed of terraced houses. Orchard Road which is to the west of Armstead Road is composed of terraced houses to the north and semi-detached houses further south. Part of the back garden of number 58, the whole of the back garden of number 60, and about one third of the back garden of number 62 Armstead Road abut the back garden of number 41 Orchard Lane.
Numbers 58, 60 and 62 Armstead Road were built in about 1898. In 2010 and thereafter number 58 was owned by Mr and Mrs Staniland, the third and fourth defendants, and number 62 by Mr and Mrs Coope, the first and second defendants, who are now the appellants ("the Coopes"). The Coopes moved into number 62 as tenants in 1988 and by October 1990 had bought the freehold from the landlord's mortgagee when the latter obtained possession as against the landlord for non-payment of the mortgage.
At the end of the gardens of the Armstead Road houses there was a wall ("the Armstead wall"), part of which divided number 41 Orchard Lane from numbers 58, 60 and 62 Armstead Road. It was built at some unknown date, but by at least 1953, and from that date it had, as the judge found, provided some supporting function for land about four feet deep [47]. It appears to have been owned by the owners of the Armstead properties. At some stage toilet blocks had been established along the wall, which extended beyond those three houses, at periodic intervals. Those at number 62 had become dilapidated by 1988 and by 1990 had been removed.
Prior to 1973 the land on which numbers 33–53 Orchard Lane now stand was waste land called "The Herbs". Number 41 was built in about 1973 when it was acquired by the parents of Mrs Ward, who had formerly owned number 62 Armstead Road. They erected first a fence, and then a double skinned wall ("the Orchard Wall"). Mr and Mrs Ward, the claimants and now respondents ("the Wards"), bought the house from them in 2001. During the course of the trial the Wards and the Stanilands came to terms. Nothing is known about the terms of the settlement, which are confidential, save that part of the agreement provided that " any rights of support which may have existed are hereby extinguished".
The layout of the streets and houses is shown on the plan annexed to this judgment. Number 41 Orchard Lane occupies the southernmost hatched plot on Orchard Lane. Numbers 60 and 62 occupy the two plots in Armstead Road whose gardens are hatched on the plan.
The judge's findings
The Herbs was significantly higher than Armstead Road. In 1973 the level of The Herbs adjacent to numbers 60 and 62 was about 4 feet higher than the Armstead Road ground level so that the level of the Herbs was about 3 feet below the level of the top of the Armstead wall, which was about 7 foot/2.15 metres high at this point.
In 1973 the builders of number 41 built up the land at The Herbs by an additional 3 feet to the top of the Armstead wall, which, had, therefore, 7 feet of earth on the Orchard Road side of it.
Sometime after 1973 a wall was built on the land at 41 Orchard Lane. It began as a double skin wall nine inches thick, to which was added a single skin wall 4 1/2 inches thick in 1990 or 1991.
By 1973 there was – by virtue of at least 20 years of support — an easement of support acquired by number 41 in respect of 4 feet of land at Orchard Lane. But the addition of a further 3 feet of land in 1973 had the effect of imposing an additional burden. It was impossible to separate the increased burden from the earlier one; and whatever easement had previously existed was, therefore, extinguished: see Gale on Easements 19 th Edition para 12–37.
By the time that the single skin part of the wall was built in 1990 or 1991 the level of the land at number 41 had increased to 9 feet/2.74 m. The increased load in 1990, even if it only consisted of the building of the single skin wall which involved an increase in ground level of at least 25 cm/10 inches, was sufficient to extinguish whatever easement had previously existed.
The works in 1990 were probably performed in the spring or autumn so that by January 2010 the 20 year prescription period had not elapsed and there was no easement of support in favour of number 41.
On 16 January 2010, after heavy snowfall with snow accumulating on the ground, part of the Armstead wall collapsed into the gardens of numbers 60 and 62 Armstead Road. The collapse was catastrophic. At the time of the hearing bricks from the wall were on the gardens together with some soil from number 41.
Responsibility
The judge found that prior to the collapse there was no sign observable by a lay person of the Armstead wall, which had functioned perfectly adequately from 1898 up until 2010, being under distress. The Armstead wall did not collapse as a result of anything done by the Coopes. They had done nothing to interfere with the earth retaining capability of the wall or to interfere with any easement of support that might exist.
The cause of the collapse of the wall was the additional loading on the wall, as the depth of earth behind it increased from 4 feet to 9 feet, operating on a 9 inch thick wall which was " doomed from the outset, with only the timing of any failure open to debate". The trigger for the collapse was the loading by the snowfall. Removal by the Coopes of rubble from the roof and lateral walls of the toilet block which abutted the Armstead wall in 1990 had had no discernible effect so far as the collapse was concerned.
The judge also held that the Wards were not responsible for the addition of the loading against the Armstead wall [60]. They were not liable in nuisance since they had neither created any nuisance nor continued it when they knew or ought to have known that their property constituted a nuisance or hidden danger to the properties below: see the authorities cited at Clerk & Lindsell on Torts 20 th Edition para 20–99; Ilford Urban District Council v Beal and Judd [1925] 1 KB 671.; St Anne's Well Brewery Co v Roberts (1928) 140 LT 1; Wilkins v Leighton [1932] 2 Ch 106. The Coopes' counterclaim against the Wards, based on their alleged failure to take steps to ensure that the Orchard wall and their wall were properly supported, accordingly failed.
I am quite satisfied that it was open to the judge to find that the Wards were not responsible for the additional loading. They had done nothing to bring it about and were not the creators, or knowing continuers, of any nuisance. The judge found Mr Ward whose evidence was that he did not assist in the wall building works in 1990/1 an honest witness and that it may not have been he who was assisting in the works at that juncture. The Wards were not legally responsible for the actions of their predecessor in title, even though she was Mrs Ward's mother.
The judge did not deal in terms with the claim in trespass (to which the Coopes' skeleton argument for trial had made no reference). Such a claim was not well founded. An entry onto land which is involuntary and without intention or negligence is no trespass: Smith v Stone (1647) Style 65; 82 ER 533 (where it was held to be a defence to an action for trespass pedibus ambulando that the defendant was carried onto the plaintiff's land by force and violence of others and was not there voluntarily); Public Transport Commission of NSW v Parry (1977) ALR 273– per Gibbs J; Clerk & Lindsell 21 st Edition 19–07. The movement of a person's land which he neither intends, brings about, foresees, nor ought to have foreseen falls into the same category.
The measured duty of care
The judge found in favour of the Wards by holding that the Coopes and the Wards owed to each other a measured duty of care in respect of the consequences attendant upon the collapse of the Armstead wall.
The judge was satisfied that no duty of care arose on the part of either the Coopes or the Wards prior to the collapse. Neither of them were aware of the risk of damage occurring. There was nothing to put the Coopes on the alert to the imminent danger of collapse of the Armstead wall; or to put the Wards on notice that the condition of their land was such that the wall was in danger of collapse.
However, once the wall had collapsed there was, the judge held, an obvious danger of more of the Wards' land falling on...
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