Property - reasons for refusing the defendants' strike out application.
Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
Between |
Stewart Newton |
Plaintiff |
And |
Professor Howard Morris |
First Defendant |
|
Josef El-Raghy |
Second Defendant |
Advocate N. M. Santos-Costa for the Plaintiff.
The First Defendant appeared in person.
CONTENTS
|
|
Paras |
1. |
Introduction |
1 |
2. |
Background |
2-9 |
3. |
The defendants' submissions |
10-17 |
4. |
The plaintiff's contentions |
18-27 |
5. |
Decision |
28-35 |
judgment
the MASTER:
1. This judgment represents my detailed written reasons for refusing the defendants' strike out application.
2. The general background taken from the plaintiff's order of justice is that the plaintiff is the owner of a property known as Le Rocher Rouge ("the Site") in St. Brelade. The first defendant is owner of a property known as Rochez to the north and the east of the Site. The second defendant is the owner of property known as Le Creux du Rocher ("the Creux") to the east of the Site.
3. Paragraph 8 of the order of justice describes there being a large granite upstand of rock owned by the first defendant which overlooks the Site and the gardens of the first and second defendants.
4. The plaintiff intends to demolish the existing dwelling house at the Site to construct a new four bedroomed dwelling house and has planning permission to do so. It is not necessarily set out the history of the planning process and the various objections taken other than to note that the Minister dismissed the third party appeal brought by the first defendant by the decision Planning Application RP/2017/0760 dated 19th February, 2018. The relevance of the planning process is that in dismissing the third party appeal, the inspector recommended the deletion of the condition requiring a geotechnical survey of work to be carried out at the Site, which recommendation the Minister accepted.
5. Notwithstanding the deletion of the condition in relation to a geotechnical survey, the plaintiff in any event carried out his own surveys through Frederick Sherrell Limited a company specialising in engineering geology. The individual retained by the plaintiff through Frederick Sherrell was Mr Richard Gould.
6. Mr Gould produced three reports dated November 2016, 19th January, 2017 and July, 2017. The November report was produced on the basis of an inspection through binoculars from the east and from the Site. The January report was also based on an on foot inspection from the first defendant's patio and lower garden area. The second defendant refused to agree to any investigations taking place on his property. The July report was produced following the Minister granting planning permission which led to the recommendations at paragraph 7-2 of the report.
7. The defendants have refused to provide access to their properties to allow the inspection as set out in paragraph 7-2 of Mr Gould's July report.
8. The order of justice therefore seeks a declaration that:-
"the court has power to permit the plaintiff to take all reasonable steps to prevent and minimise the persevered risks associated with the excavation rather than to wait for damage or even injury to occur and which permission extends to the appointment of Frederick Sherrell Limited and its agents to carry out a full and proper comprehensive geological investigation". The court then sought the following orders at paragraphs 3 to 7 of the prayer."
9. It is these proceedings that the defendants sought to strike out the plaintiff's order of justice on the basis that it was vexatious and an abuse of process.
10. Professor Morris made the following submissions on his own behalf. They were also made on behalf of the second defendant because the second defendant was unable to attend in person. I made it clear that technically the second defendant was not present because the first defendant could not speak on his behalf. However, I recorded the second defendant's position as adopting all submissions made on behalf of the first defendant.
11. The reason why the parties were in dispute was because the plaintiff wanted to carry out an extensive excavation on his land. It was therefore the plaintiff who was running the risk of breaching duties owed under the principle of voisinage; the defendants were not in breach of any duty at all. Accordingly, the principle of voisinage did not apply.
12. The rock was currently stable as was accepted at paragraph 7-1.3 of the July report where the inspector stated:-
"...that large-scale instability of the upstand of rock is unlikely in its existing state."
13. What the plaintiff wanted to do was set out at paragraph 7-1.4 of the July report which stated:
"During construction, the excavation should be supported to ensure that the adjacent ground remains stable and does not compromise the stability of the neighbours' land and the stability of the upstand of rock. This will probably mean adopting a phase to top-down excavation an integral ground support system (a semi-contiguous pile wall with anchor tied backs to support the soil and weathered bedrock in the upper levels, and rock bolts and a netting or sprayed concrete revetment to support the less weathered bedrock in the lower levels.)
14. There is no need to investigate further because the same conclusions would be reached.
15. What was proposed in terms of inspection set out in paragraph 7-2 of the July report cited above was not acceptable.
16. The case was very far removed from Venturini v Ghyll Limited [2016] JRC 004 where there was an existing rock fall which had damaged one of the huts. There was no rock fall in the present case. The rock fall in Venturini had led to damage; there was no damage at present. There was no breach by the defendants of their duty. The first defendant submitted that the danger and hazard of rockfall would be created by excavations on the land the plaintiff's not due to any actions of the defendants. Therefore, the approach of the plaintiff was to turn the Venturini case on its head.
17. The defendants wanted to enjoy the aura and beautiful vista of the natural rock outcrop in their respective gardens, without let or hindrance from the plaintiff.
18. Advocate Santos-Costa in response reminded me of the applicable test on a strike out application and emphasised it was only in cases that were doomed to failure should the jurisdiction be exercised. The present case clearly marked an arguable legal position which could only be determined by the Royal Court.
19. He accepted this was an extension of Venturini because the present proceedings concern an owner/occupier of land taking reasonable steps to prevent or minimise the risk that such an owner/occupier would cause damage or injury in respect of adjoining properties by acts taken on his own land.
20. An owner/occupier of land who wished to take certain steps in relation to his land where there was a risk of causing damage to neighbouring properties should not be forced into a position of having to wait see if damage actually occurred through the use to which the owner/occupier put their own property. Such person was entitled to ask the court to compel neighbours to permit owner/occupiers access to such land to take reasonable steps to prevent or minimise that risk.
21. Advocate Santos-Costa accepted that any order to take reasonable steps to reduce or minimise the risk had to be at his client's expense. However, there was no material difference between an owner of land being assisted by the courts to take steps to prevent or minimise a hazard on adjoining property that could cause damage to his own land and an owner of land permitted to take steps on adjoining property to prevent or minimise the risk of damage or injury that adjoining property.
22. The plaintiff's claim was a two stage process; the first stage was simply seeking access to ascertain the extent of any risk and what would be reasonable steps to prevent or minimise that risk; the second stage depended on what the expert found and what steps were then proposed should be carried out.
23. Advocate Santos-Costa accepted in relation to both stages there was scope for argument as to what were reasonable steps to carry out an inspection, and what might be reasonable in terms of steps that were ultimately required to reduce or minimise a risk.
24. There is also an issue as to how far the court would go enforcing any orders made, if a party refused to comply. His approach however he contended was still preferable than simply compelling a party to wait and see whether any risks or hazards materialised. His position was at least arguable.
25. The principle was an important one because it did not just apply to the particular facts of this case but was of more general application in relation to developments on adjoining properties where the development on one site might affect or damage property on an adjoining site.
26. He emphasised paragraph 39 of Venturini as follows:-
"39. Where a hazard has been identified and the owner/occupier will not or cannot take all reasonable steps to prevent or minimise the risk, then rather than wait for damage or even injury to occur, it follows that the Court must have the power to permit the owner/occupier of the lower lying land to do so, prime face at the cost of the owner/occupier of the higher lying land."
27. In light of this observation, he suggested that the Royal Court also had the power, in order to prevent or minimise a risk which an owner or occupier might create by developing his own land, to compel neighbouring owners/occupiers to suffer reasonable steps to prevent or minimise the risk of damage to those neighbouring properties due to the development. Those steps would be at the expense of the developing landowner.
28. In taking the applicable principals there was no dispute between the parties. These were adopted in Home Farm Developments v Le Sueur [2015] JCA 242 at paragraphs 23 to 29 which I applied in Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223. Paragraph 29 of the Home Farm Developments case stated as follows:-
"Applying these principles to the circumstances of the present case, the Appellants' Order of Justice should be struck out only if we are satisfied, based upon the conclusions which we can draw from the relevant documents and facts which are not in dispute, that any trial of the issues would be unnecessary because the claim would inevitably fail. In doing so, we acknowledge that in the particular circumstances of this case a distinction may made between paragraph (1)(b), which refers to a claim or pleading which is "scandalous, frivolous or vexatious", and paragraph (1)(d) which refers to "abuse of process". Whilst the former expression might, as the Deputy Bailiff referred to in Pike (at p. 37), suggest a degree of opprobrium about what has been pled, for example the making of unjustified allegations of outrageous conduct or the unreasonable inclusion of a solicitor as a defendant, we do not consider that the expression "abuse of process" necessarily carries the same connotation. In the context of striking out, we consider that a claim or pleading may be said to be an abuse of process where, after applying the test set out in Trant, the conclusion can be reached that to allow the proceeding to continue would be an unnecessary waste of the court's time because at the end of any trial the result would inevitably be that the claim would fail."
29. In my judgment the position advanced by Advocate Santos-Costa is correct in that it is arguable that the principle of voisinage should be extended further in the manner he contends. This is therefore not a plain and obvious case where the strike out jurisdiction should be exercised. It is in particular a case which involves a developing field of law where care needs to be taken before striking out a case.
30. In reaching this view, I agree with the first defendant that the case is not identical to Venturini. That case concerned a failure by an owner/occupier of land to address a hazard on his own land which could damage adjoining properties. The owner of that adjoining property was therefore permitted by the Royal Court by order to go onto the land where the hazard existed to prevent or minimise future landslips. The present case by contrast concerns a hazard which the plaintiff will create by excavation on his own land and the possibility that such excavation could cause damage or injury on either of the property of the defendants i.e. his neighbours. In my view, that distinction does not mean that the threshold for a strike out case is met. It is at least arguable that an owner of land who wishes to develop his own land and knows that, in doing so, there is a material risk that damage or injury will be caused to his neighbours' land should not be either compelled or permitted simply to wait and see whether such damage or injury actually materialises. It is at least arguable that the law in such circumstances should permit or require such an owner to take reasonable steps to prevent or minimise the risk of such injury or damage rather than let it occur.
31. The flipside of the current case is that, if the defendants had identified risks or hazards that the plaintiff was going to cause to their properties by developing his own land and the plaintiff refused to address those risks, it is at least arguable that an injunction would be granted restraining the plaintiff from carrying out his own development until he took adequate steps to prevent or reduce the risk of damage to his neighbours' property. What the plaintiff is seeking is the converse of that position. He wishes at his own expense in advance of development to take steps to reduce and minimise the risk of harm to the defendants' land but they refuse to allow him to do so. It is at least arguable that the Royal Court will assist a person in the position of the plaintiff in such circumstances.
32. The view I have reached does not mean that the plaintiff's position is not without its challenges. As Advocate Santos-Costa fairly accepted, there might be arguments between the parties as to what are reasonable steps both when carrying out any inspection and to mitigate any material risk. Issues might also arise if, notwithstanding any court order, an owner/occupier of land refuses to allow a neighbour to take steps to prevent or minimise a risk.
33. I have also not ignored the fact that any extension of the principle of voisinage cuts across rights of property that owners of land may enjoy and it is possible that the extending the principle of voisinage further as contended by the plaintiff may be a step too far. However, that is a matter for the Royal Court to determine. It is not capable of being determined on a strike out application.
34. While I refused the defendants' strike out application for the above reasons, I also ordered that stage one of the plaintiff's application should be heard by the Royal Court as a matter of urgency, namely the issue of whether or not a plaintiff's expert should be permitted access to the properties of the defendants to carry out a closer examination and to produce a further report. I therefore gave directions for the filing of affidavit evidence as to the precise steps the expert proposed to take while allowing the defendants an opportunity to respond. I then issued directions for the filing of skeleton arguments. I also dispensed with the need for filing of any answer in respect of this issue because primarily the dispute concerned whether the principle of voisinage should be extended in the manner contended for by the plaintiff. Any factual dispute was limited to the extent of any steps to be taken and whether these were reasonable or not.
35. It is also right to record in this judgment that I encouraged the plaintiff and the defendants to attempt to resolve their differences through discussion. This was not only because this is a neighbour dispute where the Court almost always encourages parties to try to resolve their differences by agreement rather than through a court process. In this case, in addition, if the defendants are right in their argument that the principle of voisinage does not apply, if they have rejected reasonable offers to prevent or mitigate loss due to development of the plaintiff's property which loss then materialises, such a refusal on the part of the defendants may have serious consequences for them. In particular, the plaintiff would be entitled to argue that he should not be liable for any losses caused by a breach of the duty of voisinage because the defendants had rejected a reasonable offer to mitigate the loss that later arises. In other words the plaintiff, even having breached the duty of voisinage, should not be liable for any loss which the plaintiff reasonably attempted to avoid in the first place. This possibility is an additional reason why I encouraged the defendants to consider engaging in some form of alternate dispute resolution.
Authorities
Venturini v Ghyll Limited [2016] JRC 004.
Home Farm Developments v Le Sueur [2015] JCA 242.
Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223.