Measured Duty Of Care For Landowners

When problems arise with a neighbour’s property that causes damage to your own, it can be tough – especially when it’s unclear who should be required to pay for what. Each case can be so unique that it’s difficult for the Courts to find a set precedent in order to solve the dispute. This issue has been highlighted by more than one case.

It’s already vital that local authorities – and their insurers – consider any liability potentially arising from the land that they own. There are instances where the question arises as to what responsibility a landowner has towards their neighbour if natural forces cause that land to do damage to their neighbour’s property.

This is highlighted in the case of Holbeck Hotel v. Scarborough, where Scarborough Borough Council was sued when a cliff it owned collapsed, taking a hotel and its grounds with it. In this case, the court said that the Council landowner owed a measured duty of care to its neighbour, the hotel. However, determining what the measured duty of care actually requires the landowner to do is less clear.

There has been a new Court of Appeal case, Coope v. Ward, which deals with the measured duty of care between adjoining landowners that further demonstrates the difficulties.

  • A retaining wall between two adjoining properties originally retained land to a depth of 4 ft., later becoming 9 ft. After heavy snowfall, the wall collapsed and the claimants (who owned the retained land) brought a claim against the defendants (onto whose land the wall collapsed) asking for a financial contribution towards the cost of replacing the wall.
  • No fault or blame was in question, simply that the issue needed to be fixed to prevent further movement of the claimant’s land on to the defendant’s.
  • The Court had said that both parties had a duty of care, although had failed to define what this meant in real terms beyond the defendants allowing the claimants access to their property to carry out repairs.
  • The Court of Appeal then had to determine to what extent the defendant had to contribute to the cost of rectifying the problem.
  • It was discussed if both claimant and defendant benefitted from the wall being repaired (based on an earlier case), but also whether the claimants had themselves caused the collapse due to an increase in the load on their side.
  • Ultimately, the Court of Appeal found that they could not order the defendants to pay because there was no clear engineering solution outlined.
  • They did not rule as to what the defendant’s financial contribution should be, should an engineering solution be proposed
  • However, the Court of Appeal did state that the defendants have a measured duty of care to the claimants and so it may be necessary for them to allow the claimants access to their land in order to carry out works.

What can be derived from this case is that:

a)      It was relevant to consider whether the claimants had done anything to contribute to the collapse.

b)      The Court needed to consider what the proposed engineering solution was.

c)       It was also relevant to consider the extent to which both parties would benefit from the proposed works.

Unfortunately, the Court gave no indication as to where a contribution should be set, but did confirm that it is for the claimants to arrange and carry out the work, and for the defendants to allow it to happen and possibly contribute.

This demonstrates the way in which this kind of case can be so particular and individual, that it’s difficult to resolve satisfactorily. Forbes Solicitors offer a 100% client-focused dispute resolution service that recognises your problem as unique and, as such, tailors every part of that service to your needs.

For more information, please contact us today, on 0800 037 4268 or use the contact form.

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