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Defects in neighbouring property

Requirements for cause of action

Birmingham Development Co Ltd v Tyler
[2008] EWCA Civ 859

Summary

In order to establish a claim in nuisance against a neighbour in respect of defects to his property it is necessary to show that there is a well founded fear that the defect is actually dangerous.

Facts

The claim was for an injunction restraining an alleged nuisance and for damages. The complaint was by one property owner (C) against the neighbouring property owner (D) in respect of alleged defects in a flank wall of D's property. It was said that these defects presented a danger and so interfered with C's enjoyment of its property. Much of the dispute was factual but in respect of one defect the judge dismissed the claim on the basis that it presented no danger. C appealed.

C arguments on appeal

C challenged the judge's decision on the ground that it didn’t matter that it presented no danger. It was enough, argued C, that C and its professional advisers and D and his professional advisers thought that it did (see para 42)! (There was also an appeal in respect of the judge's dismissal of the claim in respect of the other defects but we are not concerned with those matters in this report).

Decision

Not surprisingly the appeal was dismissed. Rimer LJ at paras 51 and 52 set out the circumstances in which a claimant will have a justifiable claim:
    "I consider that the judge was right to dismiss the Area 1 claim for the reasons he gave. The law of private nuisance is concerned with the circumstances in which the occupier of land is entitled to a remedy in consequence of the unreasonable disturbance of his enjoyment of it by the acts or omissions of others. Those others will commonly be neighbours. A claim in nuisance will generally depend on proof of something emanating from his neighbour's land, which may take many forms, for example noise, dirt, fumes, smell, vibrations; or it may depend on the mere fact that the activities conducted on the neighbouring land are offensive: see Hunter and Others v. Canary Wharf Ltd [1997] AC 655, at 685G, per Lord Goff of Chieveley.
    In addition, there is in my judgment no doubt that, whilst the existence on the neighbouring property of what the old reports used to refer to as a tumbledown house may not in itself be tortious, a claimant will or may have a complaint in nuisance if that house borders his own property and its state of dilapidation is such that it presents a real danger of collapsing on to his property. For the claimant to live in the shadow of such a danger will obviously be to interfere with his enjoyment of his property. It may prevent him from using part of it for fear of what will happen if there is a collapse. It may require him to vacate it altogether. In such a case the claimant may well, subject to all the issues of reasonableness discussed in the authorities, have a claim in nuisance against the neighbour requiring him to make his house safe from the risk of collapse onto his property.”
However, merely having a fear (albeit genuine) of some danger is insufficient. Rimer J at para 54 and 55:
    "I do not question that when [C] commenced its action … it had a genuine, subjective fear that Area 1 was dangerous and that prior to then [D] had not taken steps to remove that fear. But as, so the judge found, Area 1 in fact never presented any actual danger at all, so that [C]'s honest fears were unfounded, the proposition that [C] nevertheless had a claim in private nuisance against [D] appears to me to be surprising. [D] had neither done, nor suffered, anything in relation to Area 1 that created any danger to [C]'s enjoyment of the site. The notion that he should nevertheless be answerable for the claimed consequences of [C]'s concern – and should be required to carry out, at his expense, unnecessary works to make safe that which was already safe – is one I do not begin to comprehend. The hard truth of this case is that [C]'s concern was not caused by any act or omission by [D], or by any danger presented by Area 1. It was caused by the jumping to wrong conclusions by [C] and the experts, not one of whom carried out a professional examination of the supposed problem.
    In my view it is plain that [C] has no cause of action against [D] in nuisance in respect of Area 1. The Lister and Attorney-General v Nottingham Corporation cases show that it is not enough for a claimant who asserts that his neighbour's property or activities are dangerous merely to prove that he is frightened by them. What is required is proof that the fear is well-founded: that is, that the property or activities are actually dangerous, although it is not necessary to do more than prove that on the balance of probabilities."


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