Mr and Mrs H instructed us in a property dispute after proceedings were issued against them as a result of works that they did in their garden, which was at a much higher level to the neighbour’s garden, which the neighbours claimed had caused them loss and damage.
The neighbours were claiming that the works undertaken by Mr and Mrs H had caused land subsidence and alleged damage to a fence in their garden.
Mr and Mrs H’s garden was on a very steep slope separated into three different levelled areas. Mr and Mrs H’s garden sloped down and met Mr and Mrs W’s garden. Mr and Mrs H have lived in their property since the early 1970s, and when they first moved in, Mr A had built a number of dry stone walls at three different points down the slope of his garden to hold back the land and create three levelled areas. Separating the two properties was a series of fence panels that had been put in by the original owners of Mr and Mrs W’s property.
Mr and Mrs H made extensive use of the levelled area immediately outside their property, and some use of the area lower down, known as level 2, but rarely used the levelled area on the third level of the slope or paid any attention to Mr and Mrs W’s garden or fence.
The issues arose because, in late 2020, Mr and Mrs W started to clear away the ivy which had massively grown over their fence panels, and Mr and Mrs H went down to help. During the clearance works, a conversation was had where Mrs W told Mrs A that she planted the ivy 10 years ago and that it had actually completely overgrown their fence panels and intertwined into them, causing severe damage.
The concrete fence post had also been dislodged but this appeared to be because they were never concreted in properly. During their chat, Mrs W also stated that all they had done since they had lived in their house for the last 26 years was replace the fence panels. This meant that the gravel boards and concrete posts must have been in situ for nearly 30 years.
In the course of clearing the ivy from the fence panels, it was also noted that a couple of pieces of slab had fallen off the dry stone wall built by Mr H and they were on the ground near the fence panels.
Mr and Mrs H also noticed for the first time that the garden belonging to their neighbours had been dug out and that instead of the garden having a steep slope in it, the ground had been excavated so the ground level in Mr and Mrs W’s garden was actually flat. Whilst discussing matters, Mr and Mrs W mentioned that they have been meaning to replace their fence or, build a proper retaining wall on the boundary line.
Mr W said that he didn’t think it would be possible for them to build a retaining wall on the boundary line if the dry stone wall put in by Mr H over 35 years earlier remained in position because it was only a few feet away from the boundary line.
Mr H, therefore, agreed that he would move his dry stone wall back into his garden, which he later did.
Mr and Mrs W then issued proceedings against Mr and Mrs H claiming that when Mr and Mrs H built a new wall in their garden in June 2021, the wall had exerted lateral pressure causing slippage of land onto their property. They claimed the cost for replacing the damaged fence and sought an order that the new wall built by Mr H, at Mr W’s insistence, be taken down to avoid any further nuisance.
Expert evidence was obtained that indicated that the new wall built by Mr H was not moving, nor had it or any previous wall been responsible for the alleged damage to Mr W’s fence, and that Mr and Mrs W were at fault because their garden had been dug out and support to Mr and Mrs H’s land had been removed.
In the Court proceedings, Mr and Mrs H, therefore, included a counterclaim seeking damages for the removal of their common law right of support.
The judge agreed with Mr and Mrs H that the neighbours had removed the natural right of support to their land by excavating their garden and the claim made by the neighbours therefore failed and they were ordered to pay damages and costs to Mr and Mrs H.
