Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

does not apply to mineral rights held apart from the surface.116 Mineral rights generally override the register,117 unless the position regarding mines and minerals has been noted on the register.118

2.Subterranean rooms

[31.20] A freehold or leasehold estate can be created in an underground room, a cavern or a railway tunnel,119 but it needs to be made clear that ownership is detached from the land above. As Brightman J remarked in Grigsby v. Melville “a purchaser does not expect to find the vendor continuing to live, mole-like, beneath his drawing room floor”.120

3.Flats

[31.21] A flat is an artificial division of the space above the surface, requiring precise definition.121 A flat will be presumed to include the whole of external walls122 but only a portion of those which are internal. The upper boundary is somewhere in the floor joists to which the ceiling is fixed,123 a rule which also fixes the lower limit of the flat above.124 The airspace above the building’s roof is usually excluded from individual flats.125 These rules are subject to variation.126 The landlord is obliged to keep in repair the exterior and structure of a block of flats let on short residential leases.127

Most estates are firmly rooted in the soil, but it is not necessarily so. A freehold estate can be created in a cubic or polyhedric space not anchored to the earth.128 Flying freeholds exist by statute in Lincoln’s Inn,129 and why not a hanging garden? Although some pre-war flats were sold freehold,130 lenders remain reluctant to accept freehold flats as security for a mortgage,131 since the repairing obligations are uncertain.

These obstacles are overcome at present by selling flats leasehold, and for the future by commonhold schemes.132

116LRA 2002 s 4(9).

117LRA 2002 schs 1/3 paras 7–9; Law Com 271 (2001), [5.95–5.98].

118DLRR 2003 rr 71–72; PH Kenny [2002] Conv 305.

119Metropolitan Rly v. Fowler [1893] AC 416, 420.

120[1972] 1 WLR 1355, 1360G; DLRR 2003 r 25; Grays’ Elements (3rd ed), 21–22; Megarry & Wade (6th ed), [3.045–3.046].

121DLRR 2003 r 25.

122Sturge v. Hackett [1962] 1 WLR 1257, 1266.

123At 1266.

124Phelps v. City of London Corporation [1916] 2 Ch 255.

125Davies v. Yadegar [1990] 1 EGLR 70, CA; Haines v. Florensa [1990] 1 EGLR 73, CA; Ibrahim v. Dovecorn Reversions [2001] 2 EGLR 46, (2001) 82 P & CR 28 at 302, Rimer J; Hallisey v. Petmoor Developments [2000] Times November 1st, Patten J; N Roberts [2001] Conv 387; JE Adams [2001] Conv 373.

126Hatfield v. Moss [1988] 2 EGLR 58 (roof included).

127Campden Hill Towers v. Gardner [1977] QB 823, reversed by LTA 1985 s 11(1A).

128K Gray [1991] CLJ 252; Wright v. Macadam [1949] 2 KB 744, 747, Jenkins LJ.

129Lincoln’s Inn Act 1860; M Vitoria (1977) 41 Conv (NS) 11.

130SM Tolson (1950) 14 Conv (NS) 350.

131CML Handbook for Solicitors (Council of Mortgage Lenders, 2002), [5.5].

132See above [4.12ff], [4.16ff].

4.Tort actions

[31.22] Ownership in the lower airspace can be asserted though an action in trespass or nuisance. Trespass is a better way of asserting pure ownership because it requires no proof of damage. Any invasion suffices, for example when a horse pokes its head through a boundary fence. An injunction can be obtained to order removal of an intrusion or to restrain a threatened intrusion without showing that the landowner is actually inconvenienced.133 Lateral invasions which occur without the licence of the landowner are actionable in whatever form: when building eaves overhang the neighbouring land,134 advertising signs protrude over the neighbouring airspace;135 or cranes are erected so that the jibs swing over neighbouring land.136 The owner of the soil could cut down a wire placed above his land without licence.137

Invasion by overhanging tree branches is treated as nuisance,138 which can be abated by lopping them off, and which gives rise to an action for damages for any injury caused.139 In defiance of the general rule mentioned above, an injunction can be obtained for the removal of branches without proof of damage.140

5.Airspace

[31.23] Common law ownership extended up to the sky and down to the centre of the earth.141 That “sweeping, unscientific and unpractical” doctrine142 could not survive the development of balloons and aircraft.143 In the lower region close to the ground, the owner of the soil has virtually complete control,144 and he retains control to a height “necessary for ordinary use and enjoyment of the land.”145 A Croydon man who put a fibreglass spitfire on his roof challenged planning controls but raised no property issue.146 Professor Gray has speculatively placed the division at a height of

133Kelsen v. Imperial Tobacco Co (of GB and Ireland) [1957] 2 QB 334, McNair J; John Trenberth v. National Westminster Bank (1979) 39 P & CR 104, 106.

134Baten’s case (1610) 9 Co Rep 53b, 54a–b, 77 ER 810; Fay v. Prentice (1845) 1 CB 828, 838, 135 ER 769; Ward v. Gold (1969) 211 EG 155, 159; Tollemache & Cobbold v. Reynolds (1983) 268 EG 52.

135Kelsen [1957] 2 QB 334 (projection of 8 inches).

136John Trenberth (1979) 39 P & CR 104, 107–108; E McKendrick (1988) 138 NLJ 23.

137Wandsworth Board of Works v. United Telephone Co (1884) 13 QBD 904, 919, Bowen LJ.

138Pickering v. Rudd (1815) 4 Camp 219, 221, 171 ER 78; Lonsdale v. Nelson (1823) 2 B & C 302, 311, 107 ER 396; Lemmon v. Webb [1895] AC 1, HL (branches); Mills v. Brooker [1919] 1 KB 585 (cannot take fruit); Morgan v. Khyatt [1964] 1 WLR 475, PC.

139Davey v. Harrow Corp [1958] 1 QB 60, CA; Smith v. Giddy [1904] 2 KB 448; Butler v. Standard Telephones & Cables [1940] 1 KB 399; Solloway v. Hampshire CC (1981) 79 LGR 449; Russell v. Barnet LBC

[1984] 2 EGLR 44; Hampshire CC v. Milburn [1991] 1 AC 325, HL.

140McCombe v. Read [1955] 2 QB 429; King v. Taylor [1976] 1 EGLR 132, Eveleigh J.

141Latin: Cujus est solum, ejus est usque, ad coelem et ad inferos.

142Commissioners for Railways v. Valuer-General [1974] AC 328, 351, Lord Wilberforce.

143PBH Birks “Before We Begin: Five Keys to Land Law” ch 18 in Bright & Dewar, 462; K Gray [1991] CLJ 252, 305; Grays’ Elements (3rd ed), 16–21, 30–41; Megarry & Wade (6th ed), [3.051]; Panesar’s General Principles, 163–167.

144Air is not land: Great Western Rly Co v. Swindon & Cheltenham Extension Rly Co (1884) 9 App Cas 787, HL.

145Bernstein v. Skyviews & General [1978] QB 479, 486F, Griffiths J.

146Croydon LBC v. Gladden [1994] EGCS 24, CA.

32

NEIGHBOUR OBLIGATIONS

Neighbours. Easements: rights of way; services; boundary structures; miscellaneous affirmative rights. Easement-like character and novel rights. Licences. Restrictions. Rights to light. Novel restrictive easements. Non-derogation. Restrictive covenants. Positive obligations between freeholders. Means of enforcing positive obligations.

A. NEIGHBOURS

1.Unsatisfactory state of the law

[32.01] No land is an island. Even land surrounded by water has boundaries beneath the water. However extensive his domain, the landowner has neighbours – a necessary adjunct of the division of land – and whether he likes it or not, to have neighbours is to have a relationship with them, at least at a legal level. Division implies the need to delineate boundaries, and the need for rights over the adjacent land.

Easements developed earlier than restrictive covenants, the one being recognised at common law whereas the other is a construct of equity leaving historical anomalies to permeate the law. These two basic categories interlock with a series of other rights – rights to sue in tort, the natural rights of all landowners, public rights, commons, profits and so on – along with shadowy principles such as non-derogation from grant and benefit and burden (in two flavours pure and impure). Finally there is an astounding defect in our law which does not permit the imposition by one freeholder of a positive obligation affecting a neighbour’s freehold land so as to bind his successors. Positive obligations are non proprietary. Many neighbours do want to make binding commitments of just this kind, and it is simply not possible to operate a block of flats without a scheme of considerable ingenuity and complexity designed to circumvent this defect in the common law.1

Although property law has not yet developed it, there is a category of rights needed to regulate the legal relationship of neighbours.2 They have a minus – in the shape of land burdened by the obligation – counterbalanced by a plus, that is land benefitted.3 This disparate category is yet to fuse into a coherent whole.

1See above [4.22ff].

2The Law Commission proposal to create a category of land obligations replacing restrictive covenants without assimilating easements was too limited: Law Com 127 (1984); more work is to be done on this proposal.

3The neighbour principle; see below [33].

At present two expositions are required in parallel, one (this chapter) describing the rights which may be needed between adjacent owners and the other (the three succeeding chapters) outlining the main methods of creation – expressly, by division of the land and by long use (by prescription).

2.Types of neighbour obligations

[32.02] Neighbour obligations fall into three main categories

(1)Affirmative rights: rights to make use of neighbouring land:

affirmative (positive) easements such as rights of way; also public rights, profits and commons.

(2)Restrictions: rights to restrict the use of a neighbour’s land:

restrictive easements such as rights to light and support; rights created by nonderogation from grant; also restrictive covenants.

(3)Positive obligations: rights to have a neighbour spend money for the benefit of adjacent land:

freehold covenants are not proprietary but there are several means of evasion such as leasehold schemes, estate rentcharges, conditional benefits, and now commonholds.

B.RIGHTS OF WAY

1.Private rights of way

[32.03] Access to a house is obviously essential. A right of way to particular land over neighbouring land is the archetype of an easement.4 It is a private right enjoyed by one particular landowner as an adjunct to his ownership, but shared with the owner of the land.5

Most commonly rights of way are granted for general purposes, including use by any form of vehicle.6 Under White v. Grand Hotel, Eastbourne7 the way is not restricted to the use or requirements existing at the time of the grant.8 The scope of any restriction is determined from the wording of the deed of grant. Use may be limited to foot traffic, or with various classes of animal, or it may be vehicular. Permitted

4Gale on Easements (Sweet & Maxwell, 16th ed by J Gaunt & P Morgan, 1997); also Chappelle Land Law (5th ed) ch 12; Cheshire & Burn (16th ed) ch 18; Dixon’s Principles (3rd ed) ch 7; Goo’s Sourcebook (3rd ed) ch 16; Gravells, LL – Text (2nd ed) ch 7; Grays’ Elements (3rd ed), 450–514, 591–597; Maudsley & Burn LL – Cases (7th ed) ch 10; Megarry & Wade (6th ed), [18.040–18.078]; Smith’s Property Law (4th ed) ch 20; Swadling “Property” ch 4 in Birks’ English Private Law, [4.149–4.153]; Thompson’s Modern LL ch 13.

5Thorpe v. Brumfitt (1873) LR 8 Ch App 650; Jelbert v. Davis [1968] 1 WLR 589, CA.

6Kain v. Norfolk [1949] Ch 163, Jenkins J; Jelbert v. Davis [1968] 1 WLR 589, CA; Robinson v. Bailey [1948] 2 All ER 791, CA (building materials); Rosling v. Pinnegar (1987) 54 P & CR 124 (public visits to stately home); Jalnarne v. Ridewood (1989) 61 P & CR 143; McKay v. Surrey CC [1998] EGCS 180, Ch D.

7(1912) 106 LT 785, CA.

8Finch v. Great Western Rly (1879) 5 Ex D 254; Coopind (UK) v. Walton Commercial Group [1989] 1 EGLR 241, Hoffmann J; HW Wilkinson [1989] NLJ 1384; Jalnarne v. Ridewood (1989) 61 P & CR 143;

Fairview New Homes v. Government Row Residents Ass [1998] EGCS 92, Scott V-C.

purposes can also be limited. A right of way to carry materials to repair a cottage does not authorise the carrying of construction materials.9 Access for agricultural purposes does not permit access for a caravan park.10 Limited access can be granted for repair of the gable wall of a cottage,11 or to drive a land rover on to down land to fill water troughs.12

The width of the way is of vital importance. Ownership of a driveway carries with it the right to build right up to its boundary,13 and trivial interferences or alterations to the burdened land have to be tolerated,14 but action can be taken against any substantial interference with the right granted.15 Examples are narrowing the way,16 restricting the height of a right of way,17 making access to a garage more difficult,18 removing footpaths on either side of a carriageway,19 or parking cars of other tenants.20 Alterations may be allowed by reserving a right of variation.21 There is no right to deviate from the line of a right of way22

A right of way may or may not include a claim to park whilst loading and unloading.23

2.Ransom strips

[32.04] Gaps between land and the adjacent public highway are called ransom strips. Rights of way are not necessarily implied and it is quite possible for a house to be landlocked, a fact which will greatly reduce its value.24

The owner of the strip is entitled to charge for its use, holding the landlocked owner to ransom or indeed to refuse all use of it. Neighbours cannot be compelled to grant easements. Whatever the moral position, there is nothing legally improper about exploiting a ransom strip and the onus is on a person buying land to ensure that he has all necessary rights over neighbouring plots.

9Wimbledon & Putney Commons Conservators v. Dixon (1875) 1 Ch D 362, CA.

10RPC Holdings v. Rogers [1953] 1 All ER 1029; Johnson v. Record (1998) 75 P & CR 375, CA.

11Ward v. Kirkland [1967] Ch 194; Williams v. Usherwood (1983) 45 P & CR 235, CA.

12White v. Taylor (No 2) [1969] 1 Ch 160.

13Minor v. Groves (2000) 80 P & CR 136, CA; Soper v. Leeman-Hawley [1993] CLYB 1622; West v. Sharp (2000) 79 P & CR 327, CA (right not limited to hardcore track).

14Dawes v. Adela Estates (1970) 216 EG 1405 (automatic lock on external door of block did not interfere with the access to the flats).

15Petty v. Parsons [1914] 2 Ch 653.

16B & Q v. Liverpool & Lancashire Properties [2001] 1 EGLR 92, Blackburne J.

17VT Engineering v. Richard Barland & Co (1968) 19 P & CR 890, Megarry J.

18Celsteel v. Alton House Holdings [1985] 1 WLR 204, Scott J; on appeal [1986] 1 WLR 512, CA.

19Scott v. Martin [1987] 1 WLR 841, CA.

20Hilton v. James Smith & Sons (Norwood) [1979] 2 EGLR 44, CA.

21Overcom Properties v. Stockleigh Hall Resident Management [1989] 1 EGLR 75, CA. Complete removal of a promised right may be a derogation from grant: Saeed v. Plustrade [2001] EWCA Civ 2011, [2002] 2 EGLR 19.

22Bullard v. Harrison (1815) 4 M & S 387, 105 ER 877; Selby v. Nettlefold (1873) LR 9 Ch App 111.

23Affirmative answer in VT Engineering v. Richard Barland & Co (1968) 19 P & CR 890, Megarry J; negative in London & Suburban Land & Building Co (Holdings) v. Carey (1991) 62 P & CR 480, Millett J.

24J Murphy & Sons v. Railtrack [2002] EWCA Civ 679, [2002] 31 EG 99; see below [34].

3.Public highways

[32.05] Public rights exist over ways called highways. These are available to all members of the public, without any requirement for landownership and no easement is required.25 Access may be controlled for example by planning rules.

4.Private street works

[32.06] John Betjeman’s subaltern fantasised about being driven by “roads ‘not adopted’, by woodlanded ways” to dance with Miss Joan Hunter Dunn.26 The poet encapsulated the status value of living on a private street, but it can be a costly privilege. The highway authority may choose to execute works on an unsatisfactory private street, apportioning the cost between the owners fronting the street (frontagers).27 New buildings fronting a private street will not be permitted until the builder has paid over to the highway authority the cost of any works required to the street.28 On a new building estate, the builder constructs the roads, but invariably enters into an agreement with the local highway authority to ensure that the estate roads will be adopted as highways maintainable at public expense on an agreed date.29 The cost of making the road up to the proper standard falls on the builder. A person buying a house on a new building estate must ensure that there is an adequate provision for adoption of the estate roads and for maintenance in the interim period.30

C. RIGHTS TO SERVICES

[32.07] Le Corbusier said that a house is a machine for living in. Services are needed to keep that machine running.

1.Pipes and cables

[32.08] Access is needed for pipes and wires – for water, electricity, telephone wires, rainwater, and foul water waste and hi-tech cables for electricity and computers.31 These must be secured independently of and in addition to any right of way.32 Pipes may be shared with the owner, but drains33 and cables are more likely to be exclusive, in which case they may fall into the next category.

25Dovaston v. Payne (1795) 2 Hy Bl 527, 531, 126 ER 684, Heath J; Rangeley v. Midland Rly Co (1868) LR 3 Ch App 306, 311, Cairns LC.

26A Subaltern’s Love-Song, l 29.

27Highways Act 1980 s 205 (private street works code).

28S 219 (advance payments code); a buyer must check on compliance.

29S 38(3).

30This is achieved by a bond ie a deposit of money with a bank to cover the developer’s commitments.

31Trailfinders v. Razuki [1988] 2 EGLR 46, Ch D

32Penn v. Wilkins [1975] 2 EGLR 113, Megarry J.

33Simmons v. Midford [1969] 2 Ch 415; Lee v. Stevenson (1858) EB & E 512, 120 ER 600.

2.Corporeal parts

[32.09] A corporeal thing has a tangible existence (animal, vegetable or mineral) so that it can be touched, as for example with houses, trees, and gardens.34 Exclusive or unrestricted use of a thing passes the property or ownership in it as land, as opposed to giving an easement to use it.35 Examples are tunnels,36 gateways,37 coal shoots,38 overhanging eaves of a house,39 and the name plate.40 These pass automatically on sale, and on a division of ownership the thing attaches to the part with which it is naturally enjoyed, whether it is the part sold or the part retained.41

3.Wayleaves for utilities

[32.10] Many easements are created by statute or under statutory powers,42 for example wayleaves for telephone wires or electricity cables, usually subject to the payment of compensation.43 Statutory rights may44 operate within the framework of easement law, but they do not need to do so.45 Services provided by public undertakers include mains water and sewerage,46 electricity,47 gas,48 and telecommunica-

Undertakers generally have a duty to provide a supply to an existing and a power to install new infrastructure paid for by the consumer,51 with necessary powers to construct new infrastructure under public roads

and streets,52 and compulsory purchase powers.53 Properties abutting the public street will be able to secure direct access to mains services but if private land has to

34As with land itself, ownership of a “corporeal hereditament” consists of an abstract right to the physical thing.

35Crown Estate Commissioners v. City of London (1994) 158 LGR 681, CA.

36Metropolitan Rly Co v. Fowler [1893] AC 416, HL; C Sweet (1916) 32 LQR 70, 427.

37Reilly v. Booth (1890) 44 Ch D 12, CA.

38Hinchliff v. Kinnoul (1838) 5 Bing NC 1, 132 ER 1004.

39Simmons v. Midford [1969] 2 Ch 415, Buckley J. Eavesdrop is an associated easement giving the right to drain rainwater on to the neighbouring garden off the eaves of a thatched house, though not in a spout: Reynolds v. Clarke (1725) 2 Ld Raym 1399, 92 ER 410.

40Francis v. Hayward (1882) 22 Ch D 177, CA.

41Wheeldon v. Burrows (1879) 12 Ch D 31, 60–61, James LJ; Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557.

42JF Garner (1956) 20 Conv (NS) 208.

43Mercury Communications v. London & India Dock Investments (1995) 69 P & CR 135.

44Mason v. Shrewsbury & Hereford Rly (1871) LR 6 QB 578.

45Great Western Rly Co v. Swindon & Cheltenham Extension Rly Co (1884) 9 App Cas 787, 792, Lord Fitzgerald; Taff Vale Rly Co v. Cardiff Rly Co [1917] 1 Ch 299, 316, CA (statutory right could be exclusive).

46Both under the Water Industry Act 1991.

47Electricity Act 1989; Utilities Act 2000.

48Gas Act 1986; Utilities Act 2000.

49Telecommunications Act 1984; Cable and Broadcasting Act 1984; Broadcasting Act 1990.

50Water Industry Act 1991 s 106–109; Gas Act 1986 ss 7–8; etc.

51Gas Act 1986 ss 7–8; Electricity Act 1989 s 19; Water Industry Act 1991 s 98–99; s 219(1); Thames Water Utilities v. Hampstead Homes (London) [2002] EWCA Civ 1487, [2002] 43 EG 202 (CS) (office conversion to flats).

52Telecommunications Act 1984 sch 2 para 9; Electricity Act 1989 sch 4; Gas Act 1986 sch 4. Traffic managers are to co-ordinate work.

53Telecommunications Act 1984 ss 34–41; Gas Act 1986 sch 3; Electricity Act 1989 sch 3.

be crossed a private easement is required (“a wayleave”) unless undertakers have the right to cross private land.54

Private sewers can be adopted by agreement or by declaration by the sewage undertaker.55 On a new housing estate the developer will construct the sewers and enter into a sewerage agreement to ensure that they are taken over by the undertaker.

4.Perpetuity

[32.11] Easements to use existing services may continue indefinitely, but an easement to use a feature to be constructed in the future must be confined within a perpetuity period. An easement to use “sewers hereafter to pass” was void since it gave a right to use future easements without limit of time.56 The decision attracted considerable opprobrium.57 Under modern law it would be possible to wait and see, and it is usual to adopt the statutory perpetuity period of 80 years, thus validating an easement to use a feature actually constructed within that period.58 It is now proposed to remove easements from the scope of the rule completely, a most welcome development.59

D. BOUNDARY STRUCTURES

1.Party walls

[32.12] A boundary dividing the land of two neighbours may be in the sole ownership of one or other of them.60 Practice has sanctioned the use of a T mark on plans, the head of the T pointing into the land carrying ownership of the fence.61 Alternatively two neighbours may be joint tenants62 of the boundary, in which case neither can deal with it without the consent of the other. More common still is a party arrangement, particularly where a wall separates two terraced or semi-detached houses. Each owns half to a vertical line down the middle of the wall,63 but removal of that half is prevented by an obligation on owner A to support B’s half of the wall, that obligation being either expressed or created by prescription after 20 years.64 Prudential

54Telecommunications Act 1984 sch 2 para 10 (3 m above ground and 2 m clear of buildings); Electricity Act 1989 sch 4 para 6; British Waterways Board v. London Power Networks [2002] EWHC 2417, [2003] 1 All ER 187; Water Industry Act 1991 ss 46, 159; etc.

55Water Industry Act 1991 ss 102–104; there is an appeal mechanism.

56Dunn v. Blackdown Properties [1961] 2 All ER 62, Cross J; RH Maudsley (1961) 25 Conv (NS) 415, 416–418; South Eastern Rly Co v. Associated Portland Cement Manufacturers (1900) [1910] 1 Ch 12, CA (equivocal); Newnham v. Lawson (1971) 22 P & CR 852; Nickerson v. Barraclough [1981] Ch 426, 434G, Brightman LJ.

57G Battersby (1961) 25 Conv (NS) 415; JT Farrand (1962) 106 SJ 123, 147; L Elphinstone (1963) 107 SJ 2; K Scott [1961] CLJ 175.

58Perpetuities and Accumulations Act 1964 ss 1, 3; J Tiley (1966) 110 SJ 694, 720.

59Law Com 251 (1998), [7.41]; P Sparkes (1998) 12 TLI 148, 156.

60Jones v. Stones [1999] 1 WLR 1739, CA (flowerpots on wall were trespass).

61They have been included on LR filed plans since 1962 if: (1) referred to in the documentary title; or (2) contained without explanation on pre-registration plans.

62LPA 1925 s 34. An attempt to create a legal tenancy in common in a boundary structure operates to create a party wall: s 38(1).

63Disputes: s 38(2); A Samuels (1993) 137 SJ 331.

64Jones v. Pritchard [1908] 1 Ch 630; Sack v. Jones [1925] Ch 235.

Assurance Co v. Waterloo Real Estate65 shows that it is possible to take adverse possession of the other half of a party wall of it by repairing the whole and by including the whole in a lease.

2.Support

[32.13] There is no right to insist that the neighbour’s land is kept in its natural condition, but there is a right to insist that he will provide support if he digs it out.66 This is a natural right of support for land as an incident of ownership. Lateral support is required where the ground is dug away, for example to form a gravel pit, to extract clay,67 or to prepare foundations for building work or where cliffs collapse into the sea.68

Buildings require an easement of support. The leading case, Dalton v. Henry Angus & Co69 concerns support by one building for another, but exactly the same principle applies to a terrace of buildings,70 within a block of flats,71 where a building is supported by neighbouring land, or timber structures are supported.72 A right of support is sometimes described as a restrictive (or negative) easement, since the main obligation is not to withdraw support,73 and is usually enforced by an injunction.74 However, a majority of the House of Lords regarded it as affirmative (or positive), since use is made of the neighbouring building by the pressure exerted upon it.75 The right is almost always created by prescription.

3.Work to party walls

[32.14] The Party Wall etc Act 199676 applies when work is proposed on a boundary after June 1997.77 Existing rules governing Inner London78 are clarified and extended to the whole country.79 A building owner80 must serve a notice on the adjoining owner

65[1999] 2 EGLR 85, CA.

66Dalton v. Henry Angus & Co (1881) 6 App Cas 740, 791, Selborne LC, 808, Lord Blackburn; Grays’ Elements (3rd ed), 11.

67Morris v. Redland Bricks [1967] 1 WLR 967, CA.

68Holbeck Hall Hotel v. Scarborough BC [2000] QB 836, CA.

69(1881) 6 App Cas 740, HL; JF Garner (1948) 12 Conv (NS) 280; EH Bodkin (1962) 26 Conv (NS) 210; TH Wu [2002] Conv 237.

70Solomon v. Vintner’s Co (1859) 5 H & N 585, 157 ER 970; Dalton at 826.

71Impressively early is Pomfret v. Ricroft (1669) 1 Wms Saund 321, 85 ER 454, note (b).

72Woodhouse v. Consolidated Property Corp (1993) 66 P & CR 234, 243, Glidewell LJ.

73Dalton v. Henry Angus & Co (1881) 6 App Cas 740, 763, Lindley J, 776, Fry J; Byard v. Co-operative Permanent BS (1970) 21 P & CR 807. There is no duty to repair: Southwark & Vauxhall Water Co v.

Wandsworth Board of Works [1898] 2 Ch 603, CA.

74Morris v. Redland Brick [1967] 1 WLR 967, CA.

75Dalton at 792, Selborne LC, 797, Lord Watson, also Pollock B, Lindley and Bowen LJJ; Great Northern Railway Co v. IRC [1901] 1 KB 416, 429, Stirling LJ; Phipps v. Pears [1965] 1 QB 76, 82C, Lord Denning MR (hybrid).

76JE Adams [1996] Conv 326; G Powell (1998) 142 SJ 772.

77SI 1997/670.

78London Building Acts (Amendment) Act 1939 ss 45–59, as amended; D Wright (1955) 18 Conv (NS) 347.

79Except the Inner Temple and certain Crown interests: ss 18–19.

80S 20. An “owner” includes a person in receipt of rent and a purchaser under an agreement; excluded are lenders, yearly tenants, those with lesser terms, and statutory tenants: Frances Holland School v. Wassef [2001] 2 EGLR 88, Ct Ct.