Bad neighbours

The Court of Appeal recently considered the common law ‘measured duty of care’ arising between neighbouring landowners or occupiers in Ward v Coope [2015] EWCA Civ 30. In particular, the court considered how that duty
of care and the principles of property law impact on each other, given their contrary outcomes in the same situation. Could a positive duty be imposed on a landowner in favour of his neighbour, as a measured duty of care, when
a property law entitlement vested in the neighbour did not give rise to a positive duty?

The measured duty of care imposes on occupiers of land
a duty to remove or reduce hazards to their neighbours’ land. Hazards generated by lightening, fire, falling masonry, blocked drains, and landslides, as well as collapsed walls,
can result in the duty.
An Antipodean import, the
duty was established in this jurisdiction in Goldman v Hargrave [1967] AC 645.

Collapsed wall

The Wards’ garden was supported by a retaining wall located on the Coopes’ land. In the past, the Wards’ predecessors had increased the height of the property and therefore the burden on the wall. The Wards’ predecessors were Mrs Ward’s parents. After heavy snowfall, the wall, soil, and detritus from the Wards’ property fell into the Coopes’ property. Neither party had carried out any remedial work since the collapse.

The Wards claimed they had the benefit of an easement of support and/or the Coopes owed them a measured duty
of care such that the Coopes were responsible for the full
cost of reinstating the wall. The Coopes defended the claim and counterclaimed. They alleged any easement of support was lost, and the Wards were liable
in nuisance and trespass for the collapse. The factual allegations focused on the Wards’ predecessors’ actions, Mrs Ward’s knowledge (as the predecessors’ child), and an allegation that
Mr Ward had helped his father-in-law with work that affected the wall.

Ultimately the Coopes were found to owe a measured duty
of care, but on appeal it was confined to matters such as access and clearing their land
to allow necessary works.

Mutual duty of care

The trial judge found:

• An increase in the height of the Wards’ property less than 20 years before had extinguished any easement of support;
• No new easement of support had arisen;
• The Wards did not create or knowingly contribute to the collapse/hazard and so committed no nuisance;
• There was no visible sign of the risk of collapse beforehand, and so there was no measured duty of care at that time; and
• Following the collapse, there was an obvious danger or known hazard to both properties and there was a mutual duty of care.

The Court of Appeal also concluded:

• The existence or absence
  of an easement did not
  affect the operation of the common law measured duty of care;

• An absence of a positive duty in property law was not a bar to the measured duty of care under the law of negligence and nuisance (paragraph 37);

• A contractual relationship, including that of landlord and tenant, could potentially limit the measured duty (paragraph 38);

• The absence of any fault for creating the hazard is no bar to a measured duty of care (paragraph 50);

• Where there is a hazard affecting neighbouring properties, a mutual duty
  of care may arise (paragraphs 52 and 53);

• Both ‘control’ and ‘responsibility’ generally
  are relevant to the scope
  of the duty (paragraph 56);

• The duty imposed is confined to what is just
  and reasonable in the circumstances, possibly just to warn or to give access or allow work (paragraph 84); and

• It was not just and reasonable to impose
  an unquantified financial obligation when the cause
  of the collapse came from the Wards’ property and the solution benefited the Wards’ property most (paragraph 76).

It should also be noted that
at paragraph 18 the Court of Appeal affirmed the principle that a voluntary entry on to land, without intention or negligence, is not trespass. SJ

Brie Stevens-Hoare QC, pictured, and Morayo Fagborun Bennett are barristers at Hardwicke