Jones & Anor v Ruth & Anor [2010] EWHC 1538 (TCC)

Case No HT-08-35[2010] EWHC 1538 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 th June 2010
Before
HIS HON. JUDGE WILCOX
Between
(1) MS SAMANTHA JONESClaimants(2) MS RACHEL LOVEGROVEClaimant(1) Mr LIAM PATRICK RUTHDefendants(2) MRS KAREN LESLEY PATRICIA RUTHDefendant
Mr Noble (instructed by Lorrells LLP) for Claimant’sMr Vaughan (instructed by Moroneys Solicitors) for Defendant’sHearing Hearing dates: 19/04/10 – 29/04/10
JUDGMENTHis. Hon. Judge Wilcox :
[1]The claimant’s are the occupants of number 105 Lower Thrift Street Northampton and have been so since they purchased the freehold in February 2002. It is three storey terraced house built in the late 19th century. Between February of 2002 and the present they have occupied number 105 as their home for substantial periods.[2]The defendants are the owners of 103 Lower Thrift Street and number 101 Lower Thrift Street. They have occupied both of these houses at various times since 2007. Prior to this they lived at another address in Northampton. They retained the ownership of that house.[3]Mr Liam Ruth the first defendant is a builder and serial developer who refurbishes old properties. He then lives in the refurbished house for a time and then moves on to his next project. Old housing stock is given a new life and the neighbourhood in which he operates ultimately may benefit.[4]Number 103 Lower Thrift Street was the subject of radical refurbishment by Mr Ruth between April 2002 and April 2006. It grew from a two storey dwelling, with basement level to a three storey house with a substantially enlarged rear kitchen re-roofed with a pitched roof, and rebuilt garage in the rear garden.[5]Number 101 Lower Thrift Street was also the subject of radical refurbishment also growing from a two storey house, to a three storey house with enhanced kitchen and bathroom facilities.[6]The building project at number 103 Lower Thrift Street began in May 2002 and was completed in March 2007. The project for 101 occupied three years from February 2007 to March 2010. Both houses were gutted.[7]The houses form part of a continuous terrace. The houses are entered from the front from the pavement, and the door gives onto a passage, off which are two rooms and stair cases giving access to the basement and upper floor. The basement level at the rear is adapted in various houses to give access by means of steps up to their respective rear gardens.[8]The width of the houses and their rear gardens is approximately 15 feet. In such close confines privacy and quiet are paramount considerations which vie with the reality that the neighbourhood is occupied by of people of all ages and backgrounds with and without children whose reasonable occupation of their houses, gardens and street gives rise to levels of noise emanating from radios, televisions, children’s play, DIY and other activities which might not arise in a cathedral close, but which in such a neighbourhood are common and mutually tolerated.[9]In any neighbourhood lawful building and construction activities by one neighbour are bound to give rise to periodic interference with the enjoyment of other neighbours. The law recognises the dynamics of commercial necessity, and private needs which drive progress and improvement. Such activity however cannot be at any cost to the neighbour.[10]Common sense and legal principle dictate that such activity must be conducted having regard to the nature and degree of interference with the enjoyment of neighbours which is reasonable to accommodate lawful construction activity. What is reasonable will reflect, amongst other things the nature and duration of the works, the time of day or week when work is carried out, the level of noise or other interference generated by the works and whether certain types of work done are carried out following the giving of reasonable notice to a neighbour likely to be affected.[11]The claimant’s claim is divided into three parts which overlap. Firstly trespass, their case is that the gable wall of number 105 belongs to them and that the defendants without permission, built into it to support a third storey and its new roof and caused damage to both the parapet walls and to the roof of number 105 and serious cracking of the internal cross walls within 105. As to the building works and construction activities carried out in the period May 2002 to March 2007 at both numbers 103 and 101 Lower Thrift Street they claim in nuisance against the defendants for wrongfully causing or permitting excessive noise, vibration and smoke to come onto the Claimants land and premises at number 105. Allied to this is a claim that whilst carrying out work to 103 the first defendant demolished part of the claimant’s garden wall and used the Claimant’s garden as their own for storage, and burned noxious substances on the garden of 103. The Claimant’s say that when complaints were made, the Defendant’s conduct against the claimants was abusive uncooperative and intimidating. The Claimants further claim that such conduct amounted to harassment and that the defendant’s conduct caused not only distress and anxiety but personal injury to the first Complainant namely a persistent somotoform pain disorder whereby the first Claimant has been unable to work.[12]The defendants deny that the building works have caused any nuisance, deny any trespass and assert that the gable wall between 105 and 103 is a party wall and that effective, albeit informal notice was given in relation to the building work, and addition of the third storey, to the Claimants predecessor in title. They deny any harassment or unreasonable conduct or that any damage to the interior or roof of 105 was caused by their building works. The ownership of the gable wall and the garden wall dividing 103 & 105. On the 12th February 2010 the parties surveying experts Mr N. Atkinson FRICS and Mr C. Mahony MRICS produced a joint statement on the boundary between numbers 103 and 105 Lower Thrift Street.[13]I have had the advantage of a site visit with the parties, their legal advisors and the two surveying experts. I found the experts impressive and dispassionate witnesses who did their best to assist the court. They helpfully produced a table setting out the pros and cons of the two alternative views as to where the internal boundary between the houses is. Firstly a line though the centre of the upper wall, and secondly a line through the centre of the thicker basement wall which approximates to the exposed face of the upper wall comprising the gable end of 105.[14]103 was built as a two storey house with a basement. The chimney which abuts the dividing wall at basement ground and first floor level and through the roof void has four flues implying that there was never any intent for 103 to be anymore than a two storey building. The upper part of the original chimney where the flues converged was clearly built in part into the gable wall to accommodate the flues.[15]The quoins on 105 are made of solid stone and return onto the exposed gable. The appearance of 103 is different to that of 105. 105 forms a pair with 107. At the level of the original roof line of 103 the purlin was inserted into a ragged hole suggesting that it was inserting into the dividing wall after 105 was built rather than being neatly crafted had the house been built at the same time.[16]It is noticeable that the finish of the bricks of the roof void within 105 is not as good as those of the roof void for 103. This suggests that poorer bricks were used internally in 105 indicating that originally what is now the face of the wall within 103 was an external face.[17]Mr Mahony is of the view that 105 was built before 103 because of the features recounted above. Mr Atkinson does not share that view. In relation to the lower dividing wall I do not think that it really matters. I think having heard the two experts and having been into the roof voids and seen the state of the brick works the position of the chimney and the lines of painting at the rear I conclude that it is more likely than not that 105 was in fact built before 103.[18]However it is inconceivable that when 103 was built and its front and back walls knitted into the fabric of 105 together with its internal cross walls that this was not done with the consent of the owners of 105. That part of the pre-existing end wall co-extensive with the basement, ground first floor and roof void would clearly become a party wall and so far as the chimney which rose above the roof of number 103 and was knitted into the gable wall of 105 that clearly would have been with consent of the owner of 105. I have no doubt that this extent of what had been the end wall of number 105 became and was used as the party wall between 105 and 103.[19]That part of the end wall of 105 not enclosed by the original structure of 103 and its chimney continued to be in the sole ownership of number 105. Similarly with the quoin wall at the front of 105.[20]Mr Reading the defendant’s expert structural engineer graphically described when giving evidence how in terraces such as these when sufficient internal cross walls are removed the whole terrace could fall like a pack of cards.[21]Clearly the removal of the any cross internal walls in 103 which knitted into the fabric of the dividing wall would have to be the subject of a party wall notice.[22]Proper adherence to the party wall procedure is practical neighbourliness. In relation to the adjoining householders it affords mutual protection. The recipient owner has knowledge of the works and the impact upon the structure of his building can be surveyed and assessed. The owner conducting party wall works is protected because the effects of his works can have a base line from which they can be monitored and measured and his liability therefore properly assessed and contained.[23]I will consider the effect of what purported to be Party Wall Act 1996 notice later.[24]It could only relate to proposed works to what was the external wall of number 105 enclosed by the structure and chimney of the adjoining 103. The upper external wall, the property of 105, was not used as a party wall at any stage prior to the building works being undertaken by Mr Ruth, raising the roof of 103 and tying it in to the external flank wall of 105. The mere fact that part of the external flank wall had become a party wall clearly does not result in that part of the external flank wall which is not a dividing wall between the properties, becoming a party wall see Weston v Arnold 1873 L.R.8 Ch. App. 1084.[25]In my judgement the parapet on top of the original external flank wall of 105 was also owned at all material times by the claimant.

The garden wall

[26]The Claimant contends that the garden wall to the left of 105 as one faces the rear of the terrace is owned by the Claimants. It is a low Victorian brick wall approximately three feet high with a terracotta coping. The buttresses are all on the side of the wall facing the garden of 105. The outer face of the wall is in line with the original external gable wall of 105 and the parapet above. There is some evidence that the neighbours in the terrace regard the wall to the left of them, as they face the rear of their properties, as being the responsibility of those owners. An OS map from the O.S 1:500 series carried out in the 1880’s according to the experts is remarkably detailed and accurate. An enlargement of the 1885 ordinance survey map showing the boundary positions shows the garden wall dividing 105 and 103 as wholly on 105’s property[27]Such a depiction must make allowances for error when such a scale is so enlarged but under pins the understanding of the neighbours including Mrs Bond the occupant of 107 who gave evidence before me as to where the garden boundaries lay.[28]The garage originally built in the lower part of the garden of number 103 was built of brick. The face of the wall towards 105 was regarded as the boundary and was inline with the outer face of the Victorian garden wall. The outer face of the Victorian wall near to the house, not only is in exact line with the outer face of the gable wall and parapet, but is inline with an old vertical exposed painted line between the edge of the original paint on the rear face of number 103 now covered by rendering.[29]In my judgment the garden wall is wholly built on the land of the claimant at 105 and it seems that this has been acknowledged by the first defendant on various occasions when he has offered to make good at his expense the damage the he caused to the wall lower down the garden, adjacent to the newly built garage replacing the old.

PARTY WALL

[30]The defendant’s case appears to be, in relation to the party wall, that although the notice was defective, informed consent nonetheless was given by the then owner of the property Mr Pollard before the works were carried out, and in relation to that part of the wall which is not a party wall consent was given and that no trespass took place.[31]It is clear that Mr Ruth is an experienced builder and experienced in doing up old property including terraced houses. He would have been aware of his duties in relation to party walls. I am satisfied that he believed that the entire dividing wall between 103 and 105 was a party wall. He would have had sight of the 1936 conveyance of No. 103 and the Land Registry entry at paragraph 3 of the property register:
“The house wall from both sides are stated to be party wall”
[32]As a professional he doubtless would have known that should he seek the protection of the Party Wall Act of 1996 in relation to his proposed works he would have to follow its statutory code. The notice dated the 19th December 2002 does not identify the adjoining owner of address. Nether does it identify the building owner and address. Furthermore the proposed works are baldly described as “building extension” and no details of the nature of the extension e.g. addition of third storey appear on the document. The party structure notice was clearly intended to be dated 19th December 2001 and the insertion of 2002 was clearly a mistake because the acknowledgment of the notice by Mr Pollard is dated the 19th December of 2001.[33]There is a sharp conflict as to the content of the notice and thus whether there was informed consent.[34]Mr Pollard with financial assistance from his father had moved from 105 Lower Thrift Street to a larger house in Billing Rd, Northampton in December 2001 Number 105 was on the market and vacant. Mr Pollard says that he visited it from time to time to ensure that it was kept in good order and do some decorating. The sale of the house was in the hands of Messrs Whites Estate agents in Northampton. Ms Jones and Ms Lovegrove had dealings with Whites in relation to the negotiation for sale. Before they agreed to purchase 105 they were informed by Whites that building works were proposed in relation to 103. They also discussed the matter with Mr Pollard. Both Ms Jones and Ms Lovegrove understood from Whites and Mr Pollard that the building works at 103 would relate to the extension of the kitchen and the building of a pitched roof over the extended rear kitchen and the bathroom above it.[35]In cross-examination Ms Jones accepted that some copy sketches on A4 paper had been provided to her by Whites prior to sale which showed the kitchen extension and pitched roof detail but also on closer examination showed a proposed additional three storey extension. She said she did not notice this latter detail until July of 2002, after the third storey and roof had been erected.[36]The details of the proposed alterations to 103 prepared by Mr Swift on behalf of the defendants and seemingly supporting the planning application for the extensions to 103 do not disclose in any sensible detail the method of erecting the additional storey and roof support particularly in relation to the purlins.[37]Mr Ruth says that he went round to Mr Pollard’s house in Billing Road in December 2001 with the party wall notice and with full plans and details of the proposed extensions to 103 Thrift Street. If this were the case then in relation to the party wall a robust and common sense view could be taken that there was a compliant notice. The accompanying detail in the plans perfecting the brief information in the actual notice. A freeholder of the adjoining premises properly informed, and then signing the receipt and indicating consent might be bound by such consent.[38]Mr Pollard in giving evidence is adamant that no visit ever took place to him at his new home and that Mr Ruth never served him with any detailed plans or information indicating that the extension to 103 related to adding a third storey to the house.[39]Mr Pollard was vigorously and properly cross-examined by Mr Vaughan putting Mr Ruth’s case that the plans were given to him, that they were discussed and explained and that he Mr Pollard must have supplied the estate agents Whites with copies of the plans upon which they in turn based sketches of the plans furnished to Ms Jones and Ms Lovegrove. It is right that Mr Pollard ticked the box in the sellers information pack indicating that no letter or notice concerning 105 had been received by him. His explanation was that his belief throughout was that the kitchen extension works with the bathroom above it with the back of number 103 and did not adjoin and therefore concern 105.[40]Mr Ruth in his original sworn statement in paragraph 3 in which he described meeting with Mr Pollard at his new home address in Billing Road said that he “…seemed to be aware of my application and indicated to me that he had had a look at the plan. As I had not previously showed him the plans I understood this to mean he had been to the council offices to look at the plans himself and or he had received details from the development control…I gave him the Party Wall Notices and he signed a receipt for it. I discussed quite freely with him what I intended to do. I do not know if Mr Pollard disclosed the notice to the Claimants or not”[41]There is no mention in that account that he had left a set of plans detailing the proposals in relation to the third storey and the gable wall with Mr Pollard That statement was made on the 19th December 2008. In his statement of 4th December 2009 at paragraph 17C he said inter alia “…I believe I left him a set of drawings…” It is at that time that he asserted that he had shown a set of drawings to Ms Jones and Ms Lovegroves following the erection of scaffolding at the front of No. 103 in May 2002.[42]Ms Jones struck me as very frank and candid witness. She was prepared to disclose matters that on the face of it were against her interest as when she said that Whites before the purchase of 105 provided her with a set of sketch plans which on close examination in July 2002 she realised showed the third storey extension at number 103.[43]I am satisfied that the discussions that Ms Lovegrove and Ms Jones had when works started in May 2002 arising out of the erection of the scaffolding at 103 partially obstructing their front door related solely and wholly to the kitchen extension and that no plans were shown, neither were there any discussions about a roof extension. I am satisfied that there was some banter about the removal of the pebbledash on 103.[44]I reject the evidence of Mr Ruth that he showed copies of the plans to either Mr Pollard or to Ms Jones and Ms Lovegrove. I do not accept his evidence that he supplied a set of plans to Mr Pollard. I accept Mr Pollard’s evidence as truthful and accurate and that Mr Ruth never visited him at Billing Road in Northampton neither did Mr Ruth discuss with him a proposed extension by way of an additional floor to 103 Thrift Street.[45]I am satisfied that Mr Pollard was wholly truthful when he said first he knew of the additional storey was when he drove down the street and saw it in the course of erection.[46]It is feature of this sad case that Mr Ruth throughout has failed to be open and transparent in relation to the scope and timescale of his building activities both at 101 and 103 Lower Thrift Street. He took the view that 103 was his house and he could do whatever he liked to it, and in it, at anytime that he chose convenient to the operation of his business and his development activities. He is clearly a hardworking and industrious man who is intolerant of criticism.[47]Clearly no valid notice was given of the Party Walls Act 1996 in relation to the works to be done on the party wall.[48]It follows that in the absence of the provision of reasonable information as to proposed works both in relation to either the party wall and gable wall owned by 105 there could be no permission express or implied in relation to the building works affecting those walls.

The Building Work

[49]In cross-examination the first defendant accepted that it was not reasonable for a neighbour to put up with such building work for four years and he would not like it if it were inflicted on him. 103 was an empty house which was gutted from top to bottom. A new stair case was put in, new flooring with some rewiring re-plumbing and the building of fresh piers with strengthened foundations to carry loads to the basement. The building was drylined and replastered throughout where appropriate, fresh window lintels and substantial block work added to create a new third floor and the substantial roof structure above it to carry the heavy concrete roof tiles.[50]In addition the kitchen was extended and re-roofed with a pitched roof and the bathroom above it also re-roofed. The garden was substantially altered and the existing garage demolished then rebuilt. This activity went on over a period of four years. Mr Ruth unattractively in re-examination sought to qualify his admission in cross-examination saying that if it was continuous work over four years that he would consider that to be unreasonable.[51]At length the court has been taken to the personal diaries of Ms Jones. As to the events described and her reactions to them I am satisfied that they are frank and honest both in relating fact and depicting mood.[52]Late in the day the day books of Mr Ruth were made available. Earlier disclosure had been by way of edited extracts.[53]Where the evidence of Ms Jones and Ms Lovegrove and the diary entries of Ms Jones as to events occurring at 103 conflict with the oral evidence of Mr Ruth I prefer the evidence of Ms Jones and Ms Lovegrove. I do not accept that the day book entries of Mr Ruth contain a comprehensive account of all the building activity at 103. They contain some entries relating to sub contract works. They do not relate to the other ad hoc utilisation of Mr Ruth’s staff or his own activity during evenings and weekends. In evidence he complained that he had little time for holidays.[54]Continuous building work through a relatively short period can be tolerated as a reasonable necessity or alternatively avoided. Works which go on over a four year period on a sporadic or ad hoc basis without notice and at anytime can become unbearable.[55]I do not accept the evidence of Mr Ruth that no mechanical vibrating tools were used in the demolition of the roof, or in the fixing of purlins, joists, floors, staircases and the preparation of foundations for the substantial brick piers in the basement.[56]It is clear that the erection of the walls of the third storey and the fixing of them to the external gable wall at number 105 together with the insertion of purlins into that wall, and the attachment of roofing to the gable were clear acts of trespass.[57]The manner in which the work was carried out was in part evidenced by the dislodging of bricks in the gable wall into the loft of 105 indicates that some considerable force was used.[58]By the fixing of purlins into the gable and of joists to the gable the loading of the wall would clearly be affected. The evidence of Mr Ruth as to the labourer ‘Henric’ using considerable force when using a bolster and hammer in his presence may give some indication as to the measure of his approach when unsupervised.[59]There is clear physical damage that has resulted to the walls and fabric of number 105. This is graphically depicted in the careful diagrams appended to Mr Andrew Dutton’s report and in the photographs that accompanied that report. Mr Dutton is the structural engineering expert called by the claimant. I have also had the benefit of reading the report and hearing the evidence of Mr Reading the structural engineering expert whose evidence is relied upon by the defendant. In relation to cracking the first question that I have to decide is when did the significant cracking occur.[60]Firstly there is the home buyers survey report of January 2002. Some cracking is observed. Mr Reading contends that such cracking is the genesis of that later recorded by Mr Dutton and spoken to by Ms Jones and Ms Lovegrove.Mr Dutton takes the view that whilst slight cracking was observed had there been any concern then a responsible surveyor would have drawn attention to that fact by expressing concern.[61]The uncontradicted evidence of the claimants is that the cracking started and developed at the time the roof was removed and works commenced at the upper levels of 103. This would connote some causative relation between the works undertaken and the cracking that occurred. Mr Dutton expresses the view that the works carried out at number 103 have resulted in significantly increased loads on the party wall with number 105 and its foundations due to the removal of the cross wall in the basement and its replacement with a beam spanning the dividing wall and the remaining pier and the removal of the wall at ground floor level and its replacement with a beam spanning into the diving wall and the addition of the further storey “In fact the loads have been increased by 25% the weights of each floor and 50% of the weights of the internal cross walls. Previously all these loads run down the internal cross walls”.[62]Mr Dutton methodically and conscientiously discussed various scenarios that could cause such cracking such as by foundation movement, sagging of beams or failure of beams bearings or shortening of columns or posts within 105, or the shrinkage of timber above the beam under the first floor. He convincingly rules out those explanations.[63]The cracked walls are cross walls and he observes that the walls have dropped causing cracking yet the beams have not. He expressed the view that the brick work walls were formerly arching in some way. It is likely that the brick work was arching over the door head and thrusting against the party wall. He observed that the crack pattern matched this arching with a crack indicating the line where brick work, in his view, has fallen away below the crack. The brick work below the arch was held in place by tension in the brick work and plaster and the stiffness of the door jamb and it is possible that following the work to install the beams in 105 when the cross wall was removed the brick work was left arching and hanging waiting for an event which might cause it to drop. He expressed the view that the cross walls in 105 were left in such a state that either vibration or shock caused the hanging brick work to drop. That in turn would allow the arch to break up. It is also possible that there was some arch thrust relief as would occur if the matching cross wall in number 103 were demolished and the party wall moved slightly.[64]He expressed the view that when the cross walls were removed in the basement ground floor and part of the first floor in number 103, this significantly reduced the ability of the cross walls to buttress the party wall in the centre. The process of removing these walls and installing replacement beams into pockets cut into the walls in his view would have caused significant vibration. He concludes that the only probable explanation is that arching had developed and shock or vibration caused the arch to fall.[65]Mr Reading accepted the mechanism leading to the cracking but did not agree with Mr Dutton that the amount of vibration produced in 103 that could precipitate the movement that occurred to cause the cracking. He produced an addendum report which indicated that vibration force would have had to have been the force of a demolition wrecking ball hitting the wall. He based his calculations on information which was contained in a late disclosed report based upon some limited and irrelevant data relating to houses on a trunk road subject to heavy road vibration.[66]I was able to see and hear Mr Reading give evidence and formed the impression that he was not wholly objective in his approach and preferred the reasoned and dispassionate approach of Mr Dutton who analysed the work done in number 103 and related its effect to what happened in 105.[67]Mr Reading reserved his position in relation to the effect of vibration from the works of 103 pleading lack of data about the works in number 103 and expressed a difference of opinion as to the quantum.[68]It is obvious however from the plans submitted for planning consent by Mr Swift on behalf of the defendants what the extent of the works was, from basement to roof and in detail. The building was gutted and refurbished in its entirety.[69]I also take account of the fact that not only was there substantial cracking 5mm wide and over the great extent of the walls, but that the door frames became deformed so that the doors in order to fit had to be substantially adjusted.[70]I am satisfied that these were all matters of damage that were caused by the building works carried out by Mr Ruth and those variously employed by him.[71]I am satisfied that there was significant want of care in the manner in which he planned and carried out those works. A prudent builder carrying works on a party wall including the insertion of steel beams and roof purlins and demolition works at basement level prior to the building of brick piers would have ensured that structures part of, or fixed to the dividing wall would not be damaged.[72]The unauthorised works in relation to the gable wall by the erection of the first storey caused damage to the front parapet of 105. The defendant dismantled part of the parapet removing brickwork replacing it with its block work that was subsequently rendered. The terracotta copings were removed.[73]When carrying out the unauthorised works on the parapet I am satisfied that damage was caused to the cement in fill between the tiled roof of 105 and its parapet. This caused the ingress of water into the loft of number 105 and the deterioration of one of the purlins near to the damage roof.[74]A subcontractor employed by first defendant gave evidence of the repair he attempted after complaint had been made by Ms Jones and was unable to explain to me why the flashing fell short of the ridge tile and was laid in such a way that water could go under the flashing and thus vertically down the roof to where the hole had been made. It was inept. It was work attempted long after the matter had been reasonably brought to the attention of Mr Ruth. It was a job done in 25 minutes with very bad grace and resentment from Mr Ruth. He took the view that it was the Claimant’s Roof and that they should fix it. The fracture of the cement infills would not have occurred without the trespass and interference by the defendant with the claimant’s gable. I accept the evidence of the claimants that the defendant’s workman smudged render over the quoins, part of the front elevation of number 105 and when asked to address the difficulty the defendant’s declined to paint them back in the original colour but preferred to apply the same yellow colour used to cover the rendering of 103.[75]Adjacent to the newly built garage at the foot of the garden of 103 the defendant knocked down a short length of the plaintiff’s garden wall and removed the matching Victorian bricks replaced them with other bricks on a line coterminous with the garage wall but not with the rest of the defendant’s wall.[76]The claimants allege that the defendants have committed nuisance. Firstly by unreasonably prolonging the carrying out of works on 103 for a period of four years whereby noise dust and some pollution was caused by burning noxious materials in the garden but also by maintaining scaffolding that came into 105 which was not properly fixed and repeatedly banged against the wall and which enabled workman using the scaffolding to see into the windows including the bathroom window whenever the scaffolding was used as work platform or for access. Such use of course also impinged upon the amenity of the claimants who were unable to use their patio and garden without privacy.[77]I am satisfied that the building activity could and should have been completed within the year and that the continued works constituted a degree of nuisance that caused such a loss of amenity to the claimants that was incompatible with the reasonable enjoyment by them of their house and land.[78]I am also satisfied that Mr Ruth deliberately disregarded their comfort by causing or permitting noise from operations at weekends and by not supervising his workman such that they played noisy radios or used machinery for protracted periods without giving any sensible warnings to the occupants of 105. It is clear that Mr Ruth removed fencing in order to get access to garden of 105 when he built the garage at the foot of the garden of 103. I am satisfied that he persistently sought permission to put his scaffolding upon the land of 105 for his convenience to build a replacement garage at 103 and when it was initially refused the Defendants obtained a reluctant consent from Ms Jones and Ms Lovegrove on the basis that their privacy would be respected and some security given and that scaffolding would be removed after a month. It remained there for 10 weeks and the lower part of the garden was used as store for some of his building materials I do not accept the evidence of Mr Fountain, Mr Ruth’s contractor, that it was for a very limited period.[79]It is evident that in digging the prescribed footings for the garage a metre deep heavy machinery was used which caused the tarmac areas at the foot of 105 garden to be ripped up. I am satisfied that this want of care epitomised the approach of Mr Ruth towards the occupants of number 105 and the integrity of their garden. I am satisfied that the plum tree was damaged when such want of care was also shown and that shrubs were uprooted in the garden for the convenience of Mr Ruth.[80]It is evident from the diaries of Ms Jones and the evidence of Ms Lovegrove that they frequently sought reassurances as to when work was going to be completed and reassurance as to when damage was to be repaired. It is evident from the diaries of Mr Ruth that he perceived Mr Jones and Ms Lovegrove as irritants who got in the way of his prolonged four year project. I accept the evidence of Ms Jones that he was persistently bullying in his manner towards her and unpleasant epitomised by his reaction to the damage caused to the roof of 105 “Your roof you fix it”.[81]I heard the evidence of Mr Giles Frampton as to an informal mediation meeting in 2003. He was the brother in-law of Ms Lovegrove. He struck me as being objective and impressive as an impartial witness. He deposed that Mr Ruth was shown the structural engineering report from Parkhouses a firm of civil engineers showing damage to No. 105 but dismissed it as having no relevance. Mr Ruth said he was never shown any such report. I do not believe him. Mr Frampton’s evidence was confirmed by both Ms Lovegrove and Ms Jones. Mr Frampton observed that Mr Ruth seemed to wind up claimants then dismiss their complaints as unjustifiable. He showed a degree of belligerence even in the presence of a third party that corroborates the evidence of Ms Jones as to the belligerence shown to her. It was evident from what Mr Frampton said that even Mrs Ruth became exasperated at his attitude and this prompted Mr Ruth to grudgingly promise to undertake some repair to the roof and undertake some remedial work at sometime in the future.[82]Significantly at that meeting Mr Ruth asserted that Mr Jones and Ms Lovegrove had in fact signed a Party Wall Act agreement with him. It indicates that Mr Ruth is prepared to say anything which would exculpate him when it suits.[83]I am satisfied that during the building works at 103 and later when 101 was renovated from 2006 onwards building debris was placed up against the wall and fence of number 105 causing it to deflect and fall.[84]It is evident that after the Ruth’s started to live at 103 after the 1st of April of 2006 that noise levels reduced, although some fitting out of the house continued. In relation to the garden works there were episodes of extreme noise caused by petrol driven cement mixers and angle grinders. On their own these activities might be considered reasonable but as part of a cumulative course of conduct over four years they have a different effect. I am satisfied that over two or three days when workman burnt carpet in the garden of 103 and noxious fumes and smoke came over 105 and beyond to 107 where children were playing Mr Ruth was belligerent and threatening to Ms Jones when he learnt that Ms Jones had made a complaint to the local authority.[85]Indeed I accept that whenever she made a complaint to Mrs Ruth in reasonable terms Mr Ruth would accuse her of being unpleasant to Mrs Ruth and was aggressive towards Ms Jones to the degree that she became fearful of bringing to attention of Mr Ruth such matters as rubble and filth falling into the garden of 105 from the building works at 103, and the persistent noise and the use of the garden of 105 as a storage place and convenient for Mr Ruth’s work for building work because of fear of repercussions.[86]In so far as there were building works as number 101 although it is a short distance away from 105, five or ten metres in my judgment that activity is too remote having regard to Ms Jones and Ms Lovegroves right to quiet enjoyment of 105. The Ruth’s have two children a boy and a girl. There is evidence to show that the boy was a nuisance and badly behaved and fouled mouthed. This was not only directed towards Ms Lovegrove and Ms Jones but at people in the street as well. In so far as the children were noisy as children are in the gardens of terraced houses in close proximity to each other that is part and parcel of the mixed ambiance of the neighbourhood. Some people rejoice in hearing even noisy children play. To others it may be anathema if they are used to a quiet life. The Claimants have established grave nuisance covering a period of three years. The loss of amenity and enjoyment of their case I assess at £30,000 to which must be added to the value to the Defendants of the unabated nuisance constituted by the stealing of support for their raised roof and attached 3rd storey. The value to their house is irreversibly enhanced. I would estimate this to be no less than £45000. At this stage an injunction is not the appropriate relief.

The Harassment Claim

[87]The main matters relied upon are that the first defendant in particular was aggressive and insulting towards Ms Jones and that he was dismissive of her reasonable complaints as to the nuisance of his building works and thirdly that the true colour of this course of conduct was exemplified by two things. Firstly his diary in which Ms Jones and Ms Lovegrove were referred to by particularly disparaging names and secondly by several notes that were released from the bedroom window of 103 and came down into the courtyard of 105 at a time when the children were clearly present upstairs as was evident from their voices and their mother was present too according to Ms Jones. The children were then eight and ten. In the notes there is a clear reference to lesbians and homosexuality and the like. The handwriting ranges from that which was childlike to that which was sophisticated.[88]Ms Jones and Ms Lovegrove have lived together in a same sex partnership for some years.[89]It is the defendants case that it was a mere coincidence that notes with such references came down from a window just above their courtyard. The handwriting on several of the notes seems to be adult. Mrs Ruth identifies it as being that of her daughter. This court is not in the position to express a view as to whose handwriting it was whether that of a particular juvenile or adult. Looking at the conduct of Mr Ruth towards Ms Jones and Ms Lovegrove over a protracted period of time I find it difficult to dismiss this as a mere coincidence. At its very least it exemplifies an expressed attitude in the Ruth’s household that may have affected the children that reflects the resentment and antipathy of Mr and Mrs Ruth towards Samantha Jones and Rachel Lovegrove. I regard the conduct of Mr Ruth towards Ms Jones since 2003 as being clear harassment within the meaning of the Protection of the Harassment Act 1997. It is behaviour that of course must be seen in the context of an acrimonious neighbours dispute. It must be balanced against the feelings that Mr and Mrs Ruth must have felt when legal proceedings have been threatened against them and when the first Claimant has been taking a photographic record of what has transpired over the years. Nonetheless taking all of those matters into account I driven to the conclusion that there was a campaign of harassment against Ms Jones.[90]I assess the damages under this head at £6,000.

Personal Injuries Claim

[91]Since May 2005 Ms Jones has experienced symptoms of severe back pain affecting her ability to walk on occasions. She suffered apparent pain between her sacroiliac joints on either sides. At one stage ankylosing spondylitis was suspected but this was ruled out in January of 2006 by an orthopaedic surgeon. It appears that her physical symptoms were enhanced when she was in Northampton and diminished when away.[92]Prior to the events involving the defendants in this action Ms Jones was noted to have suffered from some depression in January of 1993 and in September of 2004 a note was recorded of a history of a back injury 7 years ago i.e. in or about 1997.[93]“An assessment of her condition in January of 2006 relates that the spinal problems began in 2003 following a yoga holiday. She started to get low back pain sciatica for which she had physiotherapy treatment which gave some relief, but at the time, she told me that she was commuting daily to her job and this seemed to aggravate the problem. She had an exacerbation of her symptoms following another yoga holiday in 2004 with worsening symptoms with lower back pain and stiffness and more recently she suffers from pains higher up the spinal and on waking she is very stiff and painful on both hips. Driving increases her pain to almost intolerable levels when she is lying down she feels a dead feeling coming on in her upper and lower limbs bilaterally. She sleeps poorly because of her pain. Although physiotherapy treatment has helped in the past recent treatment has not helped. She has no sphincter problems and there are no red flag signs. She is otherwise fit and well other than suffering with hay fever. She drinks moderate amount of alcohol, continues to practice yoga and to use an exercise bike.” Dr Holden a consultant psychiatrist who reported upon Mr Jones conditions on the 12th of February 2007 in his summary and conclusion says “She described the stress she suffered in the context of the building work, rising not just out of a sense of the damage being done to her property but her powerlessness to do anything about it. She describes classical symptoms of stress with depression and anxiety. Her depression is of a reactive nature I have no reasons to believe that he psychological stress due to the index events as described” He goes on to say:
“In addition she began suffering from back pain from about April May 2005. This has been investigated and no adequate orthopaedic pathology found to explain it. In my opinion the most likely cause of her ‘physical inquest’ symptomology is psychological. I consider that it is most likely that she is suffering from somatisatiom, a process which underlying anxiety and depression are converted into physical symptoms subconsciously”
[94]I also had the benefit of a very long and thorough report setting out the full history of Ms Jones physical and psychiatric state since 1997 from the consultant forensic psychiatrist Dr Ash Roychoudury, instructed by the Defendants.[95]The two distinguished psychiatrists in accordance with their duty consulted and prepared a joint statement of agreement & disagreement the relevant parts of the agreement are:- “(i) Dr Holden and Dr Roychoudury agree that Ms Jones describes suffering stress related symptoms in the context of the building work carried by builder & neighbour next door following their purchase of the property in spring 2002 (ii) Dr Holden and Dr Roychoudury agree that it is for the court to decide the factual issues and building law in this case. (iii) Dr Holden and Dr Roychoudury agree that she describes her classical symptoms as stress with depression and anxiety which have continued since she left and rented out the property. They agree that her depression and anxiety symptoms are more likely than not to have arisen from the stress of the events as she described them rather than from any other source. (iv)Dr Holden and Dr Roychoudury agree that no adequate orthopaedic pathology has been found to explain Ms Jones condition, and that, on the balance of probability, most likely cause of her physical and “symptomology” is psychological, caused by a form of somotisation symptoms in the context of mixed anxiety and depressive order. (v) Dr Roychoudury and Dr Holden agree that Ms Jones has had treatment with centreline and anti-depressant they do not consider that further treatment would be appropriate prior to the ending of litigation. After litigation it is likely that there will be some improvement in her mental state, but in view of the chronicity of her problems they consider that she would then require a benefit from a course of cognitive behaviour therapy for her somatisation. Currently this would cost approximately £120 per session and should need between 8 and 12 sessions to recover. (vi) Dr Roychoudury and Dr Holden agree that the prognosis of her symptoms after the resolution of the case can be variable although it is more likely that they will show a gradual improvement that can be helped by active treatment which is described above. It is less certain that she will easily return to work and may require retraining. ”[96]The defendant contends that Ms Jones condition though regrettable has nothing to do with them, contending that even if nuisance is proved it is not foreseeable that this type of injury could result from it.[97]The nuisance of course includes the removal of the roof of 103 in 2002 without notice, necessarily involving the withdrawing of purlins from the party wall, and involving acts of trespass and nuisance whereby walls were erected against the claimants wall and purlins inserted into the gable wall without permission and the causing of damage to the gable wall and the damage to the roof and internal cross walls.[98]In such circumstances of continuing nuisance and trespass and a refusal to abate the nuisance or ameliorate its consequences it is possible that the householder could be psychologically affected in consequence of such nuisance and refusal to abate.[99]Mr Vaughan submits that in relation to the nuisance claim the first claimant cannot succeed in recovering damages for personal injuries. He relies upon Hunter and Others v Canary Wharf Ltd [1997] A.C. p655 and in particular the speeches of Lord Goff p.687 – 688 citing with the approval of Professor Newark’s classic article on “The Boundaries of nuisance” [1949] 65 L.Q.R p.480, and the speech of Lord Lloyd at p.696: “The essence of private nuisance is easy enough to identify, and it is the same in all three classes of private nuisance, namely interference with land or the enjoyment of land. In the case of nuisances in class 1 or 2 the measure of damages is, as I have said, the diminution in the value of land. Exactly the same should be true of nuisances within class 3. There is no difference of principle. The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that is the right approach, then the reduction in the amenity value is the same whether the land is occupied by the family man or the bachelor… If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damage in private nuisance does not depend on the number of those enjoying the land in question. It also follows that the only persons entitled to sue for loss in the amenity of value of the land are the owner or the occupier with the right to exclusive possession”.[100]Mr Vaughan is clearly right in my judgment. The claim is however pleaded in the alternative that there is a case in negligence; 19: The defendant has negligently caused extensive damage to and has destroyed parts of the claimants land and premises as set out above and in the first schedule to these particulars of claims. 20: The first claimant has witnessed the damage to and destruction of parts of the claimant’s land and premises since around June 2002 onwards. (Emphasis Given) 21: The First claimant was a person so closely and directly affected by the defendant’s negligent acts that they ought reasonably to have had her in contemplation as being so affected. 22: In all the circumstances in was reasonably foreseeable that the first claimant would suffer psychiatric injury as a result of witnessing the damage to and destruction of her property (Emphasis Given).” It is clear beyond doubt that the noise and the manner of sporadic working over a protracted period which gives rise to the remedy in nuisance has caused anxiety and distress.[101]It is evident that the refusal to abate the nuisance and the intransient and aggressive stance taken by the defendants reflected in the award for harassment has caused distress and discomfort. Mr Vaughan submits on behalf of the defendant that the claimants have failed to demonstrate negligence by the defendants in relation to the building works.[102]He points out that the experts agree that the cracking of the interior walls was something that could not be readily foreseeable even by a prudent contractor carrying out the operations conducted by Mr Ruth in the refitting of number 103. How thus could a contractor like Mr. Ruth foresee that such unforeseeable damage could reasonably cause psychiatric harm to Ms. Jones?[103]Clearly a want of care was demonstrated in relation to the damaging of the parapet and roof of number 105, and by over painting the front wall, as well as by the demolition of part of the dwarf garden wall at the rear. These matters are comparatively minor and easily remedied. In considering whether there was a duty of care this case it is appropriate to stand back and consider how the whole of the project in relation to number 103 was conducted. From start to finish it was epitomised by a complete and deliberate disregard of the claimant’s property, convenience comfort and amenity and was aggravated by the harassment. A developer having hands on control of building operations in a situation involving the gutting of number 103, the unlawful attachment of its raised roof structure to 105 and the building of the garage abutting the boundary wall between 103 and 105 has a duty to ensure that such operations were conducted in a timely way with the least inconvenience to the neighbour as is reasonable in all the circumstances. Some dislocation, inconvenience and loss of amenity is inevitable when building works take place in neighbouring houses and must be borne by and affected neighbour otherwise no redevelopment, improvement or repair could ever take place. For this aspect of the claim the remedy is in nuisance.[104]In so far as the building works went on beyond 2006 in relation to number 101 those were matters in my judgment do not fall to be considered. The evidence of the neighbour at number 99 has indicated that although the work was protracted it did not cause concern to him.[105]In my judgment the claimants case is not made out that the first claimant suffered psychiatric injury as a result of witnessing the damage to and destruction of her property. The first claimant became depressed by reason of the first defendants stubborn refusal to recognise that he had caused damage to the roof and to the internal walls and wrongfully attached his roof timbers to the claimant’s gable wall. In part that aspect of the claim is reflected in the remedy for harassment in part driven by a commercial motive.[106]The physical damage to the building was done during 2002. The mediation meeting tended by Mr Frampton occurred in 2003 and it is clear had the defendant honoured the agreement made at that meeting and matters been put right then Ms Jones would not have developed the conditions she now complains of and which both experts agree she continues to suffer from, namely a persistent somatoform pain disorder, a process by which underlying anxiety and depression are subconsciously converted into physical symptoms. In this case back pain and or a mixed anxiety and depressive disorder causing somatisation symptoms in the form of back pain.[107]Ms Jones medical condition derives not by reason of witnessing damage to her house but from conduct of the defendants in failing to address her reasonable requests to deal with it and by the fact that the project was unreasonably protracted.[108]I am satisfied that the first claimant began to suffer from severe back pain at the end of April 2005 and that in March 2006 she was advised that the probable cause of this was severe muscle spasm caused by stress. The evidence is that the first claimant from May of 2005 from time to time has experienced pain that has been so severe that she has great difficulty walking and sitting and there have been periods of time when she had been housebound because of pain and limitation in movement and in consequence her sleep has been significantly disrupted and has become irritable, her concentration energy motivation and memory have been diminished.[109]The claimant has been in receipt of incapacity benefit since March of 2006. She has had to take pain killers anti-depressants and tranquillizers and has attended physiotherapy and counselling in order to try and reduce and manage the symptoms.[110]The experts recommend cognitive behaviour therapy and it is likely that the resolution of this dispute at the end this case would assist her recovery. The parties agreed that in the event of liability being shown general damages in the sum of £28,750.[111]Were liability established for personal injury there is an associative claim for loss of earnings. There is an item of claim for 11 weeks lost earnings to tend to repair works and to deal with the claim. This is not recoverable as a head of damage. Arguably it could form part of a costs claim.[112]The first claimant maintained a loss of earnings claim from April 2005 to November 2009 at the rate of £4,097.92 net per month. This totals £237,679.36.[113]The first claimant has an architectural degree and a post graduate diploma in design for film and television from Kingston University. She has experience in design for films and experience at varying levels throughout her career on notable films and as an event designer. Much of her work has been done on a project by project basis and as freelance. Latterly between March 2003 and March 2005 she worked as an art director on a 3D television series called “The New Captain Scarlet” at Pinewood Studios.[114]The first Claimants skills can only be fully utilised within a limited market and over a period of time when there is either feast or famine depending upon whether there is some right connection for employment. This is evidenced in Ms Jones account as to how whilst admirably qualified for a particular job it went to some relative of the Director who had no such qualification.[115]On the schedule of earnings that have been provided I would assess her earning capacity at £23,000 per annum net. This gives a total of £115,000 for five allegedly lost years. The assessment proposed by Mr Vaughan is too low and takes no account of inflation.

Conclusion

[116]The claimants who are joint owners of 105 between them had a reasonable earning capacity.[117]There were substantial periods of time when for their own convenience they moved to London to pursue their employment. They always intended to sell the house when they could, the object being to get upon the first rung of the property market. When away from the house Mrs Jones was substantially relieved from the stresses placed upon her.[118]It is a remarkable feature of this case that two able women with a reasonable earning capacity did not obtain sound advice and spend the comparatively modest sums needed to put right the damage caused to their house by Mr Ruth’s continuing nuisance and trespass. It could then have been sold.[119]I am satisfied that in relation to the personal injuries claim no negligence has been proved. Such particulars as are relied upon form part of the nuisance and harassment claims which has been proved and for which damages have been awarded.[120]As to the dividing walls between 103 and 105 the following declarations are made i) The gable wall of 105 not enclosed by the chimney of 103 and the basement ground and first floors of 103 are and were in the ownership of 105. ii) The garden walls dividing 103 and 105 are wholly the property of 105 the claimants.[121]The garage is built wholly upon the land of 103 the defendants. There is a four and a half inch overhang created by the guttering and eaves such trespass in my view is de minimis. As to the extent of the rebuilt wall, which follows the line of the newly built garage there was clearly a technical conversion of the original bricks, and the boundary now has a small kink to it. To that extent the boundary now formed by this section of wall and the garage wall is wholly on the land belonging to 103. This gives a marginal increase of land useable for 105. In my judgment no damages are awardable in relation to this. The appearance of the rebuilt wall is satisfactory.[122]There is a claim for mortgage payments between May 2002 and February 2010 in the sum of £64,720 which is not sustainable. It is the cost of purchasing and maintaining a capital asset which remains. In so far as the Claimants had alternative accommodation because of the nuisance part of the cost this is reflected in the nuisance award. Part reflects their convenience.[123]The claim for loss of opportunity to sell in my view is too tenuous and remote.[124]I am satisfied on the balance of probabilities that had the repairs to the roof and cross walls been carried out the Alliance and Leicester B.S. would have granted a mortgage saving the Claimants approximately £10,000. In my judgement this is too remote. The proximate cause of their loss was their impecuniosity which could not be reasonably within Mr. Ruth’s knowledge.[125]For replacement tarmac and properly making good I award £1,000.[126]For the damage to the plants and removal of the current bush and interference with the fence I award £1,500.[127]From the foregoing it can be seen that I do not consider that this is a case which is appropriate for a diminution of value assessment of damages.[128]I am satisfied that the house once put right can be sold for its proper value. I accept Mr Dutton’s evidence that the remedial works includes the use of stainless steel to fix the cracking and to forestall any blight that may attach on resale of this house by reason of the cracking. The cost of repair I accept is £12,950.[129]The 2nd Claimant was unable to use 105 for the purposes of teaching yoga. The claim for £350 is made out.[130]It is evident that once these proceedings come to an end then the first defendants health in all likelihood should recover with in a relatively short time following cognitive therapy and the two sets of parties can disengage from this obsessive dispute which has consumed so much of their energies and resources. 131. Summary of Damages Nuisance which includes the continuing failure to abate by removal of the roof purlins and 3rd storey walls, loss of amenity. £30,000 Increase in value of 103 by means of the wrongful and continual nuisance. £45,000 Repairs to 105. £12,950 Damages for harassment. £6,000 Alternative Venue for 2nd Defendants Yoga. £350 Plants and Fence £1500 Making good tarmac. £1000 Total £96,800