CHANCERY DIVISION
Strand London WC2A 2LL |
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B e f o r e :
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KENNETH GODDARD | Claimant | |
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MEGAC LTD & ANOR | Defendant |
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PO Box 1336 Kingston-Upon-Thames Surrey KT1 1QT
Tel No: 020 8974 7300 Fax No: 020 8974 7301
(Official Shorthand Writers to the Court)
MR W MOFFETT (instructed by Grundberg Mocatta Rakison LLP) appeared on behalf of the 2nd Defendant
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Crown Copyright ©
MR JUSTICE LINDSAY:
"The supply of water aforesaid is intended to be by means of a pipe about Two Inches in diameter already laid."
"The Owner has agreed with the Grantee for the grant to him in fee simple of the right to take water from the said boring so far as the same may be required for the domestic purposes only of the Grantee."
"1. In consideration of the premises and of the covenants hereinafter contained the owner hereby grants unto the grantee full and free right and liberty to draw and receive from the said boring and to convey through the said pipe such an amount of water as may be required for the domestic purposes only of the grantee's said dwelling and for no other purpose whatsoever with liberty from time to time as shall be necessary to cleanse repair or replace the said pipe in the same position as the present pipe and for these purposes and no other to enter upon pass along and break up the land adjoining the said pipe doing as little damage as possible to the said land TO HOLD the said liberties and rights unto the grantee in fee simple."
"The grantee hereby covenants with the owner …"
"To remove and carry away all stones gravel soil clay sand or any refuse or rubbish at any time removed from the said pipe or accumulated on the adjoining land at the time of any repair thereto or cleansing thereof and not at any time to create or continue a nuisance on the Owner's land."
"In the event of a water main being laid by the competent local authority or other statutory contractor along the nearest public road to The Lodge aforesaid to apply to such authority or contractor for the main water supply to be connected to The Lodge at the Grantee's expense."
"The Claimant will, inter alia, contend that by reason of the 1974 Conveyance and the 1974 Deed [and it is chiefly, if not only, the 1974 deed to which I have referred which is the material document] the owner (or owners) from time to time of AHH [that is the Hill House] was (or were), in the premises, at all material times under an obligation or duty to ensure that …"
"The Flat accordingly comprises a 'flying freehold'. (That is to say Miss Smee's flat]. It is common ground that, no doubt because of the circumstances in which Miss Smee came to acquire her freehold, there are no covenants of any sort regulating the relationship between the two freeholders. That relationship is regulated by the law of easements and by the law of nuisance and negligence."
"Nowadays, however, matters have been transformed by the developments in the law of nuisance and negligence heralded by the decision of the Judicial Committee of the Privy Council in Goldman v Hargrave [1967] 1 AC 645."
"Those two cases remain, no doubt, good authorities in relation to the law of easements; but they tell us nothing about the proper content of the modern law of nuisance and negligence. It is to those causes of action that I now turn."
"The law of easements may provide Abbahall with no remedy but the modern law of nuisance and negligence does."
"the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made."
"What Abbahall seeks by way of its claim for damages is reimbursement of the expenditure already incurred, and hereinafter to be incurred, in abating the nuisance."
"a duty to make the appropriate contribution to the cost of the appropriate works, always assuming, that is, that the works are actually carried out."
"The other is a caveat as to the potential ambit of this decision. As I have made clear my decision is confined to the situation where the owner of a flying freehold shares with her neighbours below the protection of a common roof. Other solutions may be appropriate where the properties in dispute are arranged side by side rather than one on top of the other. I would also wish to reserve the question of what Miss Smee's duty might be were the cost of the necessary repairs to be of a wholly different and very much greater order of magnitude than is in fact the case. It may be that it would make no difference."
"There is nothing that I wish to add to his analysis of the issues in this case, his reasoning or his conclusions."
"The judge accepted the view, expressed by the surveyors in their report and not challenged, that the condition of the house at Queensgate Place Mews constitutes a danger to the public. If the parties cannot bring themselves to act responsibly, it must be hoped that the local authority will give urgent consideration to the exercise of its powers to require the abatement of what, on the evidence, is plainly a public, as well as a private, nuisance."
"There is no previous analytical information to establish whether the contamination also occurs under normal conditions and there is no obvious source of pollution. The catchment of bore holes of this depth are also usually protected from contamination from the land surface by the underlying thick mantle of soil, clay and aquifer rock. However, pollution of the bore hole itself from surface water ingress from the neighbouring field containing sheep may be responsible. It is unlikely that cattle grazing in Mr Baden-Powell's own field were responsible for the high bacteria counts as alleged by Mr Goddard, because this field is down gradient of the bore hole. However, the council has not yet asked the environment agency to investigate this as it could have done under paragraph 6.9(iii) of Circular 24/91."
[After further discussion]