Rees v Skerrett

An easement of support extends to instability caused when demolition exposes an inadequately supported wall to wind suction. The resulting cracking is damage from withdrawal of support, even though wind makes the instability manifest.

There is no easement of protection from ordinary weather and no absolute duty to weatherproof an exposed wall. An adjoining owner who demolishes a building may nevertheless owe a duty in negligence or nuisance to take reasonable weatherproofing measures. Liability depends on knowledge, actual or constructive, of the risk and whether reasonable works would have prevented or minimised the damage.

The appellants owned a terraced property formerly adjoining a building owned by the first respondent. After that building was demolished, the common wall was left substantially unsupported and inadequately weatherproofed. The county court found an easement of support but held that existing cracking resulted from wind suction rather than withdrawal of support. It also rejected liability in negligence or nuisance for rain penetration.

The appeal against the second respondent was compromised. The remaining appeal concerned whether wind-related cracking fell within the easement and whether the first respondent owed a common law duty to weatherproof the exposed wall.

1. Appeal allowed unanimously. Lloyd J delivered the leading judgment, with which Waller LJ agreed. Judgment was entered for the appellant against the first respondent for £47,000 damages, with £6,855 interest and costs here and below.
2. An easement of support was not confined to resistance against the continuous vertical or lateral pressure exerted by the weight of adjoining parts of a structure. The flank wall had been stable while supported by the demolished building but was too high and long to remain stable as a free-standing structure. Wind suction made that instability manifest by causing cracking. The precise force which produced the cracking did not prevent the damage from being a consequence of the withdrawal of support.
3. Phipps v Pears [1965] 1 QB 76 did not govern that issue. It concerned a building which had not received support from its neighbour and a claimed easement of protection from ordinary weather. It remained authority that no such easement existed and that there was no absolute duty to weatherproof an exposed wall.
4. Applying Leakey v National Trust [1980] QB 485 and the later authorities, an adjoining owner may be required to take positive and reasonable steps to prevent or minimise a known risk of damage. The principle applies whether the claim is framed in negligence or nuisance. It may apply to risks created by the owner's own demolition works.
5. The relevant liability required proof that the demolishing owner knew or ought to have known of the risk arising without weatherproofing, and that reasonable preventative work would have avoided the damage. The statutory notice made the need for weatherproofing obvious. No effective issue had been raised that the necessary works were more onerous than it was reasonable to require. The first respondent therefore owed and breached a duty to provide reasonable weatherproofing.
6. The court noted that comparable modern works would probably fall within the Party Wall etc. Act 1996, but decided the appeal under the common law applicable when the demolition occurred.

1. Court of Appeal: The appeal against the first respondent was allowed unanimously. The dismissal of the damages claim was replaced by judgment for £47,000, together with interest and costs. The appeal against the second respondent had been compromised.
2. Plymouth County Court: His Honour Judge Overend found that the appellants possessed a right of support but had not proved damage attributable to its withdrawal. He also rejected liability in negligence or nuisance and awarded no damages.