Udal & Anor v Dutton & Anor [2007] EWHC 2862 (TCC)

[2007] EWHC 2862 (TCC)Case No HT-07-383
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/11/2007
Before
HIS HONOUR JUDGE PETER COULSON Q.C.
Between
JOHN OLIVER UDALClaimantsANN MARIE UDALClaimantHUBERT C. G. DUTTONDefendantsROSALIE S. S. DUTTONDefendant
Gavin Hamilton (instructed by Ambrose Appelbe) for ClaimantsThe Defendants were neither present or representedHearing Hearing date: 30 November 2007
JUDGMENT
[1]The Claimants are an elderly married couple who own 5 Soudan Road, London SW11 4HH. The First Claimant is 81 and his wife is 75. Their garden is a source of joy and comfort to them. The Defendants are the owners of the adjacent property, 7 Soudan Road.[2]At the rear there is a garden wall between the properties. This is owned jointly by the Claimants and the Defendants. It is a party fence wall. In law, that means that neither party can damage or destroy the wall without going through the procedure set out in the Party Wall etc. Act 1996. This morning, the Claimants seek an interim injunction against the Defendants arising out of the Defendants’ partial demolition of the party fence wall.[3]The Defendants are developing No. 7, a process with which they are apparently well familiar as they have also developed 9 Soudan Road. I am told that they are also developing 15 Soudan Road. During the development at 9 Soudan Road, I am told by Mr Udal that the Defendants sought to erect a rear extension on the line of the garden wall. The owners of No. 11 objected and the extension was wholly built within the curtilage of No. 9.[4]It appears from the evidence that the Defendants originally sought to do the same at No. 7, that is to say, to use the party fence wall as the wall of their extension. The Claimants objected. There were discussions between their party wall surveyor, Mr Crowley and Mr Riley, the party wall surveyor appointed by the Defendants. Mr Crowley wrote to the Claimants on 7 June 2007:
“Further to our meeting... Concerning the works themselves and the information previously forwarded to me, I would comment as follows: - 1. In relation to the party fence wall, I would confirm that due to the planting etc. on my Appointing Owner’s side, the Building Owner is going to look at utilising it rather than demolishing it and rebuilding it and I look forward to receiving the revised detail for consideration....”
This plainly suggests that demolition and re-building of the party fence wall was discussed between the surveyors and that it was agreed, at least at this point,that this would not happen.[5]A lengthy party wall award was signed by Mr Riley on 26 October 2007 and by Mr Crowley on 9 November 2007. The vast bulk of it deals with the proposed loft conversion and its impact on the internal party wall between the two properties. The only reference to the garden wall is that at paragraph 8.3 of the schedule of condition which states:
“Garden area and garden wall: garden paved with stone paving all in good order. Numerous plants growing in pots and in earth to the ground adjacent to the garden wall. Small lean to tool store against front of party fence wall with garden implements within. Lead flashing at abutment with rear wall in good order. Concrete copings to garden wall above lean to store, brick on edge else where.”
[6]It seems to me that the party wall award is relevant for two reasons:(1) There is no suggestion in the award, or the accompanying schedule of condition, that the party fence wall was in a poor or unstable condition;(2) On the face of the award itself, the proposed rear extension appears to be regarded as immaterial to the party fence wall, which would suggest that the Defendants had decided to build within the curtilage of their own property.[7]At some point in early November it seems that the party fence wall arose again for discussion. During this hearing Mr Hamilton has properly provided me with a copy of a letter dated 19 November 2007 from Mr Crowley to the Claimants which indicated that the Defendants did not, after all, wish to build inside the line of the party fence wall and had instead stated a wish to demolish and rebuild that wall. This was of course, contrary to the apparent agreement reached earlier in the year. Mr Crowley’s letter in summary does not indicate that the Claimants had much room for manoeuvre in response to this fresh proposal. A draft addendum award was being prepared by Mr Riley. That addendum award was sent through to Mr Crowley either late on 19 November or early on 20 November.[8]As presaged by Mr Crowley’s letter, the draft addendum award was contrary to the terms of his letter of 7 June 2007. The Defendants now wanted to take down the party fence wall for the length of their proposed extension.[9]Before any agreement was reached, on the evening of Sunday 25 November a handwritten note from the Defendants was put through the Claimants’ door, peremptorily informing the Claimants that ”the builders noted the points in the addendum. They may well be starting work on the wall in the next few days.” This letter ignored the simple point that the addendum award had not been agreed.[10]The letter also suggested that the garden wall was bulging and unsafe. Such a suggestion is not found in the party wall award itself and is therefore rather difficult to believe. There is a suggestion that an engineer had earlier indicated that the wall was unsafe. But the engineer’s letter relied on was dated 31 July 2007 (before the party wall award) and a reading of it makes plain that it was dealing with 15 Soudan Road, an entirely different property. It was nothing to do with the party fence wall with which I am concerned.[11]On the following day, Monday 26th, that part of the party fence wall where the proposed rear extension is to be built was demolished. That demolition had not been agreed by the Claimants. It was carried out in contravention of the agreement referred to in the letter of 7 June 2007. I understand from information provided this morning that there may have been further demolition late yesterday or early today.[12]The Claimants seek an injunction in these terms: “(1) the Defendants are restrained until further order by themselves, their servants or agents from undertaking any building works in or adjacent to, or from further demolishing or damaging, the party fence wall between 5 and 7 Soudan Road, London SW11 4HH, other than as provided by paragraph (2) below; (2)the Defendants are to erect forthwith a hoarding or other suitable barrier on 7 Soudan Road, so as to make secure the boundary between 5 and 7 Soudan Road, but not in the process to enter 5 Soudan Road or to cause any damage to the Claimants’ plants… The usual undertakings as to damages and the like are given.[13]The relevant principles are to be found in the older case of American Cyanamid Co.-v-Ethicon Ltd.[1975] AC 396 (HL) and in the more recent decision of the Court of Appeal in Zockoll Group Ltd.-v-Mercury Communications Ltd. (No. 1)[1998] FSR 354 and in the decision of Chadwick J (as he then was) in Nottingham Building Society-v-Eurodynamics Systems Plc[1993] FSR 468 at 474.[14]The Claimants need to demonstrate three things: that there is a serious issue to be tried; that the balance of convenience favours the grant of an injunction; and that damages would not be an adequate remedy.[15]Plainly there is a serious issue to be tried. The Defendants are guilty of trespass and wrongful interference with the Claimants’ property. Maybe Mr Riley thought that matters could be agreed. Unhappily, all too often in these circumstances, the party doing the work goes ahead with those works before the agreement has been completed. The whole point of the Act is to provide a mechanism by which agreements can be reached or disputes identified, and to avoid this sort of sly destruction.[16]The balance of convenience clearly favours the grant of an injunction. It seeks to protect what remains of the wall and to replace, on a temporary basis, that part of the wall that has been wrongfully demolished[17]Damages would not be an adequate remedy in this case, as a householder who sees part of their property destroyed without consent is more concerned to preserve their property rights rather than to secure damages.[18]I therefore grant the order sought. I direct that there be a transcript of this judgment made available to the Defendants. It may be that, in consequence, matters can be resolved without the need for a hearing on the return date.