Jones and another v Ruth and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Aikens,Lady Justice Arden |
| Judgment Date | 12 July 2011 |
| Neutral Citation | [2011] EWCA Civ 804 |
| Docket Number | Case No: A1/2010/1950 and 2108 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2011 |
[2011] EWCA Civ 804
Lady Justice Arden
Lord Justice Aikens
and
Lord Justice Patten
Case No: A1/2010/1950 and 2108
HT-08-35
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
HHJ WILCOX
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Noble (instructed by Lorrells LLP) for the Appellants
Terence P. Vaughan (instructed by Moroneys Solicitors) for the Respondents
Hearing date: 18 th April 2011
Introduction
The claimants in these proceedings, Ms Samantha Jones and Ms Rachel Lovegrove, are the owners of a three-storey terraced house at 105 Lower Thrift Street, Nottingham ("105") which they purchased in 2002. The defendants, Mr and Mrs Ruth, own the adjoining property at 103 Lower Thrift Street ("103") and the next house in the terrace, number 101 ("101"). 101 and 103 were constructed as two-storey houses but between May 2002 and March 2007 extensive work was carried out by Mr Ruth to 103 as part of which the house was gutted and then rebuilt with the addition of a new third storey, a substantially enlarged kitchen at the rear and a rebuilt garage in the rear garden. 101 received similar treatment between February 2007 and March 2010.
In February 2008 the claimants commenced proceedings against the defendants in the Technology and Construction Court for damages for nuisance and trespass caused to their property at 105 by the building works. They alleged that during the works to 103 they suffered from excessive and persistent noise and vibration which affected 105; that the vibration caused cracking in the walls of 105 which continued until about March 2006; that the defendants had trespassed by making holes in the gable end wall of 105 and by the insertion of purlins and had also damaged the roof; that there had been trespass on to their garden by the erection of scaffolding and the storage of building materials, particularly during the re-building of the garage at 103; that the boundary wall had been damaged and in part demolished during the works; and that there had been numerous other incidents of rubbish being thrown into their garden and of other anti-social behaviour.
In addition to the claims for damage based on nuisance and trespass, the claimants also sought damages for personal injury and financial loss which they said had been caused by the negligence of the defendants and by certain aspects of their conduct which amounted to harassment contrary to s.1 of the Protection from Harassment Act 1997 ("the 1997 Act"). The claim for personal injury was made by the first claimant, Ms Jones, who it was alleged witnessed the damage to 105 and, as a consequence, suffered from severe back pain brought on by the anxiety and depression which this caused. She has not been able to work since April 2005 and requires some form of cognitive behaviour therapy as well as physiotherapy and counselling to assist her recovery. These symptoms were also, she alleged, the result of what amounted to a campaign of harassment against her and Ms Lovegrove by the defendants who acted in an aggressive and intimidatory manner towards them; refused to provide any information about the progress of their building works; and repeatedly ignored their requests to reduce the noise and to make good the damage which their works had caused.
The trial took place before HH Judge Wilcox in April 2010 and he delivered a reserved judgment on 28 th June 2010 in which he found the principal allegations of trespass and nuisance to be proved. He held that the gable end wall of 105 was a party wall to the extent that it was enclosed by the original structure of 103 and its chimney. Beyond that, it was at all times in the sole ownership of 105. The works carried out by Mr Ruth to raise the roof of 103 and to tie it into the gable end wall were therefore acts of trespass to which the claimants had not consented.
Mr Ruth contended at the trial that he had obtained the consent of the previous owner of 105 (a Mr Pollard) to the use of the gable end wall to support the third storey and the new roof of 103. A form of party wall notice had been served in 2001 but this failed to identify the proposed works in any detail and was held to be invalid. Mr Pollard gave evidence (which the judge accepted) that Mr Ruth had never visited him to discuss the works or served him with any detailed plans indicating that a third storey was to be added to 103. The judge summed up Mr Ruth's attitude to the works in this way:
"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."
The garden wall between 103 and 105 was held to be built on land belonging to 105. The defendants were therefore liable to make good the damage caused to part of the wall adjacent to the rear garage of 103 when it was re-built.
In relation to the claim in nuisance, the judge held that the building works could and should have been completed within a year and that the continued works over a four-year period caused the claimants serious loss of amenity in their enjoyment of 105. He rejected the evidence of Mr Ruth that no mechanical vibrating tools had been used to demolish the roof of 101 and 103 or to fix the new purlins, joists, floors and staircases. Considerable force had been used in these works and, on the basis of the evidence of the claimants' expert structural engineer, the judge was satisfied that the addition of a third storey to 103 had resulted in significant increased loads on the party wall and its foundations due to the removal of a cross wall in the basement and part of the first floor of 103 and the insertion of a beam. This had led to the cracking in 105 and movement in the door frames which necessitated the refitting of a number of doors.
The works also resulted in damage to the front parapet of 105, part of which Mr Ruth dismantled and replaced with block work. The terracotta copings were removed and damage to the cement in-fill between the tiled roof of 105 and the parapet led to an ingress of water. The work carried out by Mr Ruth to make good this damage was described by the judge as inept and was carried out reluctantly and with bad grace.
The judge summed up his findings on nuisance in these terms:
"76. The claimants allege that the defendants have committed nuisance. Firstly by unreasonably prolonging the carrying out of works on 103 for a period of four years whereby noise dust and some pollution was caused by burning noxious materials in the garden but also by maintaining scaffolding that came into 105 which was not properly fixed and repeatedly banged against the wall and which enabled workman using the scaffolding to see into the windows including the bathroom window whenever the scaffolding was used as work platform or for access. Such use of course also impinged upon the amenity of the claimants who were unable to use their patio and garden without privacy.
77. I am satisfied that the building activity could and should have been completed within the year and that the continued works constituted a degree of nuisance that caused such a loss of amenity to the claimants that was incompatible with the reasonable enjoyment by them of their house and land.
78. I am also satisfied that Mr Ruth deliberately disregarded their comfort by causing or permitting noise from operations at weekends and by not supervising his workman such that they played noisy radios or used machinery for protracted periods without giving any sensible warnings to the occupants of 105. It is clear that Mr Ruth removed fencing in order to get access to garden of 105 when he built the garage at the foot of the garden of 103. I am satisfied that he persistently sought permission to put his scaffolding upon the land of 105 for his convenience to build a replacement garage at 103 and when it was initially refused the Defendants obtained a reluctant consent from Ms Jones and Ms Lovegrove on the basis that their privacy would be respected and some security given and that scaffolding would be removed after a month. It remained there for 10 weeks and the lower part of the garden was used as a store for some of his building materials I do not accept the evidence of Mr Fountain, Mr Ruth's contractor, that it was for a very limited period.
79. It is evident that in digging the prescribed footings for the garage a metre deep heavy machinery was used which caused the tarmac areas at the foot of 105 garden to be ripped up. I am satisfied that this want of care epitomised the approach of Mr Ruth towards the occupants of number 105 and the integrity of their garden. I am satisfied that the plum tree was damaged when such want of care was also shown and that shrubs were uprooted in the garden for the convenience of Mr Ruth.
80. It is evident from the diaries of Ms Jones and the evidence of Ms Lovegrove that they frequently sought reassurances as to when work was going to be completed and reassurance as to when damage was to be repaired. It is evident from the diaries of Mr Ruth that he perceived Ms Jones...
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