Birmingham Development Company Ltd. v Tyler

In a type 3 private nuisance claim based on danger from neighbouring land, the claimant must prove that the danger was real and well-founded. A sincere or objectively reasonable fear is insufficient where the alleged danger did not exist. Proof is on the balance of probabilities. A dilapidated neighbouring structure may be actionable where it presents a real risk of collapse onto the claimant’s land, subject to reasonableness and causation. Pleadings define the issues: expert evidence cannot make an unpleaded defect part of the case. The appeal was dismissed because one area was objectively safe, another was unpleaded and insufficiently investigated, and a further defect was wholly caused by the claimant’s leaking gutter.

Birmingham Development Company Limited sought mandatory injunctive relief and damages against its adjoining owner, Michael Tyler, alleging that defects in the factory’s flank and gable walls constituted nuisance and negligence and interrupted development works.

The High Court found that Area 1 was objectively safe, Area 2 was dangerous but had been wholly caused by water from BDC’s gutter and was latent as against Mr Tyler, and Area 3 presented no danger. The claim was dismissed and the interim injunction discharged on 2 February 2007. BDC appealed on the questions of actual danger, the scope of its pleadings, the alleged Area 4 defect, and causation. The central issue was whether a reasonable apprehension of danger, without actual danger, could found a type 3 nuisance claim.

Rimer LJ gave the judgment, with which Rix LJ and the Chancellor agreed. The appeal was dismissed on grounds 1 and 3, and permission to appeal was refused on grounds 2 and 4.

1. In a type 3 private nuisance claim, the claimant must prove that the alleged danger was real and well-founded. This requires proof, on the balance of probabilities, of an actual serious risk of imminent physical injury or damage. Subjective fear, even if honestly and reasonably held, cannot by itself establish nuisance where the feared danger was non-existent. The court relied particularly on the reasoning in Regina v Lister and Another Dears & Bell 209 and Attorney-General v Corporation of Nottingham [1904] 1 Ch 673.
2. The court recognised that a genuinely dangerous, dilapidated structure bordering neighbouring land may interfere with the neighbour’s enjoyment and may found a nuisance claim, subject to the ordinary requirements of reasonableness and causation. That general observation did not assist BDC because Area 1 was found to have been objectively safe.
3. The pleadings define the case that the defendant must meet. Expert evidence and evidence at trial cannot replace a pleaded claim. Area 4 was a distinct and insufficiently explored area, was not pleaded, and BDC deliberately declined to seek permission to amend. The judge was therefore entitled to refuse to speculate or decide a claim concerning it.
4. Paragraph 4.2 of the Particulars of Claim described the consequence alleged to flow from the specified defects; it did not enlarge Area 2 into a general challenge to the integrity of the whole flank wall.
5. The finding that the Area 2 defect was wholly caused by BDC’s leaking gutter was a permissible finding on conflicting evidence. There was no basis for the Court of Appeal to substitute a different factual conclusion or treat the finding as perverse.

• Court of Appeal (Civil Division): Appeal dismissed on grounds 1 and 3; permission to appeal refused on grounds 2 and 4.
• Chancery Division of the High Court, Birmingham District Registry: His Honour Judge Brown QC, sitting as a deputy judge, dismissed BDC’s claim and discharged the interim injunction on 2 February 2007.