1. Matthew Hearsum Solicitor & Arbitrator Matthew.hearsum@morrlaw.com Bad Smells, Bad Neighbours and Basement Excavations Dispute Resolution Team REDHILL | WOKING | WIMBLEDON | CAMBERLEY

2. 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

3. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Seeff - v - Ho

4. REDHILL | WOKING | WIMBLEDON | CAMBERLEY 314 & 316 Whitchurch Street, Edgware

5. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Is informal consent sufficient? 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. Thomas L.J.:-

6. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Is informal consent sufficient? 36.…The [1996] Act makes it mandatory to give notice in respect of work defined in the Act. Thomas L.J.:-

7. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Injunction -v- Damages 1. If the injury to the injured partys legal rights is small; Shelfer v City of London Electric Lighting Co Ltd 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.

8. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Measure of Damages 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 claimants right. Wrotham Park Estate v Parkside Homes [1974] 1 WLR 798 HHJ Copley: £200 X Court of Appeal: £500

9. 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…

10. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Hirose Electrical - v - Peak Ingredients

11. REDHILL | WOKING | WIMBLEDON | CAMBERLEY 20 & 22, Crownhill Industrial Estate 1993 Hirose moves in No. 22No. 20 2002 Peak moves in 2008 Hirose moves out

12. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Nuisance – the Basics 1.Claimant must have proprietory or possessory interest in the land 2.Substantial interference with Claimants 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

13. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Nuisance – the Basics what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. Sturges v Bridgman

14. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Judgment 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 N Strauss QC (sitting as Deputy Judge of the High Court)

15. 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 3.Whole estate being light undustrial does not means Units 20 and 22 were suitable for Peaks activities X 4.Wrong to say smells were not a nuisance X

16. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Judgment 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… 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…

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

18. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Jones & Lovegrove - v - Ruth & Ruth

19. REDHILL | WOKING | WIMBLEDON | CAMBERLEY 101 – 105 Lower Thrift Street

20. REDHILL | WOKING | WIMBLEDON | CAMBERLEY 101 – 105 Lower Thrift Street

21. REDHILL | WOKING | WIMBLEDON | CAMBERLEY 101 – 105 Lower Thrift Street

22. 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

23. 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

24. 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

25. 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

26. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Damages 1.Trespass: £45,000 2.Nuisance: £30,000 2.Personal Injury: £0.00

27. 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

28. 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

29. 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!

30. 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 Owners enthusiasm for the right to infringe (ii) Adjoining Owners Reluctance to allow infringement

31. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Williams - v - Taylor (Moot) Judgment not yeat avaliable – Sorry!

32. 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 DepthUnderpin

33. 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

34. 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

35. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Lessons from the Coalface

36. 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 didnt 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

37. 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!

38. 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

39. REDHILL | WOKING | WIMBLEDON | CAMBERLEY Thank you Notes are published on my blog: partywallsolicitor.wordpress.com