Seeff v Ho & Anor

Oral consent between neighbours to building work is interpreted objectively. It is not ordinarily a simple permission to proceed regardless of planning or party-wall requirements. The consent ordinarily carries an implicit condition that applicable planning permission, party-wall procedures, and any resulting agreement or award will be obtained and observed. Work departing from those arrangements is outside the consent and may constitute trespass. A removal injunction may be refused where it would be oppressive and disproportionate, particularly where the claimant’s real concern lies elsewhere and monetary compensation is adequate. Costs remain discretionary: an offer of damages that omits the claimant’s expenses, together with failure to engage with an offer of mediation, may make it inappropriate to order the claimant to pay the defendant’s costs.

The appellants, neighbouring owners, claimed that improvement works carried out by the respondents encroached on their property. They sought removal of the works or damages. The trial judge found that oral consent had been given to raise the roof and that most of the works did not trespass, but found trespass in the fixing of lead flashing and the use of mastic. He awarded £200 damages and initially made no order as to costs.

After reconsideration, the judge ordered the appellants to pay most of the respondents’ costs, relying in part on a settlement offer of £500 plus court fees. The appellants appealed on consent, remedies, damages and costs. The central issues were the objective effect of the oral consent, the appropriate remedy and damages, and the proper costs order.

1. The appeal was allowed in part. The damages were increased from £200 to £500, the later costs order was set aside, and the appropriate order was no order as to costs.
2. Per Lord Justice Thomas, the effect of the conversation had to be determined objectively. A neighbour’s informal consent to proposed work ordinarily carries an implicit condition that applicable planning requirements and the Party Wall Act 1996 procedures will be followed, including any agreement or award. The respondents departed from the approved hipped-roof design and attached the roof at a different height without planning permission. The work therefore fell outside the consent and trespassed on the appellants’ property.
3. It was unnecessary to determine whether the Party Wall Act 1996 applied to the work, whether consent had been given on behalf of both joint owners, or the issues concerning revocation and an easement of support.
4. An injunction requiring dismantling of the roof would have been oppressive and wholly disproportionate. There was no diminution in value attributable to the trespass, and the evidence did not justify remission for a fresh assessment. The additional trespass warranted only a modest increase in damages, assessed at £500. A claim for general damages based on noise or disturbance could not be investigated for the first time on appeal.
5. The respondents’ offer of £500 plus court fees was made without prejudice as to costs and did not offer the appellants’ expenses. It was considered together with the respondents’ failure to respond to the offer of mediation. In those circumstances, the appellants should not have been ordered to pay the respondents’ costs. Since the appellants had substantially failed on their wider damages claims, however, the fair order remained no order as to costs.

• Court of Appeal (Civil Division): Appeal from the Willesden County Court. The Court of Appeal increased the damages to £500, set aside the costs order made on 12 April 2010, and restored the substantive effect of the original no-order-as-to-costs decision.
• Willesden County Court: HH Judge Copley found largely for the respondents, awarded £200 for trespass, and initially ordered no order as to costs. On reconsideration, he ordered the appellants to pay the respondents’ costs from 1 January 2009.