Snow is the last straw

Cases involving easements of support are quite rare. This is good news since they generally concern landslides of one sort or another. But what is common is that neighbouring properties have differing ground levels, one being higher than the other, the higher one being supported by a retaining wall. This was the case in Ward v Coope where, to quote the January 2015 Appeal judgment: “the collapse was catastrophic”.

Two homes, one in Orchard Lane and the other in Armstead Road, had back gardens that shared a common rear boundary. The Armstead Road properties were built at the turn of the last century and their back gardens were lower than the land at the rear by about four feet. So, when they were built, the Armstead Road owners built a retaining wall about seven feet high. The lower four feet of this wall stopped the land beyond it falling into their gardens. At this stage the land at the rear was waste ground.

The Orchard Lane property was built in 1973. Its builders piled earth up along the original wall. As a result, the wall retained earth that was some seven feet higher on the Orchard Lane side than it was on the Armstead Road side. In 1991 a boundary wall was built, for the Orchard Lane property, on top of the piled-up earth; which increased the load on the original wall yet again.

In January 2010, a heavy snowfall was “the last straw”. The wall collapsed and soil and bricks tumbled into the rear garden of the Armstead Road property. The Orchard Lane property had, in legal terms, caused a “nuisance” to the Armstead Road owners.

The County Court judge apportioned the cost between both parties, with a greater share falling on the Orchard Lane owners. But, while sympathising with his difficulties, the Court of Appeal decided that:

  • Neither owner was in any way at fault.
  • There had been no evidence of earlier indications of a potential collapse that either party should have noticed and done something about.
  • The cause was the increase in loading caused by the Orchard Lane owners’ predecessors, so “… the responsibility for the collapse lay on their side of the fence…” and therefore they should bear the costs of putting it right.
  • Each owner owed the other a “measured duty of care” in relation to the collapse which, in this case, meant that the Armstead Road owners had, at least, to give the Orchard Lane owners access to carry out works, to remove obstructions to gaining access and to allow the rear garden of the Armstead Road property to be used “for propping or otherwise”.

But, almost as interesting in property law terms, was the decision about easements of support. The Orchard Lane property had acquired a right of support for the original four feet of height twenty years after the wall was first built. The piling up of the earth in 1973 extinguished that right because it was impossible to distinguish the “increased burden from the earlier one”. Then a new twenty year period started, but the 1991 wall building exercise extinguished whatever rights had by then been acquired. But then another twenty year period started and would have given rise to a new right of support, had the 2010 snow storm not intervened a few months before the twenty year period expired!

Anyone carrying out works near their boundary would do well to consider whether or not, by imposing an increased burden on their neighbour’s property, they are – by implication – extinguishing a right of support they have spent at least two decades acquiring.