Nuisance – the right of support

Citation

Waterson, G. and Lee, R. (2000), "Nuisance – the right of support", Property Management, Vol. 18 No. 5. https://doi.org/10.1108/pm.2000.11318eab.006

Nuisance – the right of support

Nuisance – the right of support

Holbeck Hall Hotel Ltd v. Scarborough Borough Council (2000) The Times, 2 March, concerned the appeal by Scarborough Borough Council against the decision of Judge Hicks QC sitting as a judge in the High Court in which damages were awarded against the council as a result of the famous landslip in 1993 in which a large portion of the hotel slipped over the cliff and into the North Sea. As a result of the landslip the hotel had to be evacuated and later demolished.

The defendant council owned land forming the undercliff below the hotel. Through their responsible engineers they knew that if remedial action was not taken the landslip would be likely to progress and affect the claimant's land at some future, but indeterminate time. However, the cliffs on this part of the coast are subject to marine erosion and are notoriously unstable. Thus, the engineers did not foresee that the hazard was of such magnitude that it would be likely to involve a large part of the grounds and the hotel itself.

In the action in the High Court the claimants sought damages on the basis that the council, as owners of the downhill land were under a duty of care to maintain the cliffs. The defendant council argued that a mere omission on the part of the owner of the servient tenement was not actionable in the absence of positive action by him in withdrawing support.

The High Court applied Leakey v. National Trust for Places of Historic Interest or Natural Beauty (1980) QB 485 holding that the council owed a measured duty of care to the claimants to reduce any hazard to the claimants of which they were aware. See: Goldman v. Hargrave (1967) 1 AC 645. Thus, as the council knew of the hazards of failing to support the plaintiff's land they had failed in their duty of care and were liable for the damage.

The council, not surprisingly, appealed claiming that Leakey was confined to encroachments or escapes from the defendant's land onto the claimant's land. The case was not therefore applicable to cases of failure to provide support to neighbouring land where there had been no withdrawal of support. In other words it did not apply to mere omissions. The council further argued that although some damage was foreseeable if nothing was done about continuing slips, the catastrophic danger that actually materialised could not reasonably have been foreseen and thus they were not liable for it.

Stuart Smith LJ, delivering the unanimous decision of the Court of Appeal, held that the principle in Leakey applied equally to loss of support where there had been no withdrawal of it but mere omission and to encroachments or escapes from a defendant's to a claimant's land.

For a measured duty of care to arise the defendant had to know or be presumed to know of the defect or condition giving rise to the hazard and, as a reasonable man, had to foresee that the defect or condition would, if not remedied, cause damage to the claimant's land in the reasonably near future. Stuart Smith LJ agreed with council for the defendant that the defect had to be patent, not latent. However, it was no answer for the landowner to say that he did not observe a defect if a responsible servant had seen it, or the person to whom he had entrusted the responsibility of looking after the land should have seen it. However, if the defect was latent the landowner or occupier was not to be held liable simply because he would have discovered it had he made further investigations.

Thus, in most cases where foreseeable, physical injury or damage occurred to a claimant's property the defendant would be liable for all damage of the type that was foreseeable even if the extent of the damage was greater than foreseen.

In this case, however, since the council had done nothing to create the danger, the scope of the duty was more restricted. It was limited to an obligation to take care to avoid damage to the claimant's land that they ought to have foreseen without further geological investigation. The duty might also be limited by other factors so that it was not incumbent on someone in the council's position to carry out expensive, extensive (and ultimately futile?) remedial work to prevent the damage; the scope of the duty might be limited to warning the claimants of such risks as they were aware of, or ought to have foreseen, and sharing such information as they had acquired relating to it. The appeal was allowed.

Geoffrey WatersonRosalind Lee

The law is stated as it is understood to be up to 1 August 2000.