Ultan Todd and Fionnuala Todd (plaintiffs) v Concetta Cinelli, Bruno Concelli, Newtown Developments Ltd, Brefni Plant Hire Ltd, Rafaele Cavallo and Paul McMahon (defendants).

Real Property - Easements - Right of support - Whether demolition of one of two semi-detached houses a breach of the right of sup- port - Whether plaintiffs entitled to damages for change of appearance to house.

Damages - Assessment - Whether plaintiffs entitled to aggravated damages - Whether plaintiffs entitled to punitive damages.

The High Court (Mr Justice Peter Kelly); judgment delivered 5 March 1999.

Where one of two semi-detached houses, which had been built together as one, was demolished, there was a breach of the easement of support and the neighbouring landowners were entitled to damages for the change to the appearance of their house. The plaintiffs were also entitled to aggravated damages due to the outrageous conduct of the defendants.

Mr Justice Kelly so held in awarding the sum of £161,800 damages to the plaintiffs.

John Trainor SC and Karen Fergus BL for the plaintiffs; Joseph Finnegan SC and Sara Moorhead BL for the first and second defendants; James Nugent SC and John L. O'Donnell BL for the third and fourth defendants; Alex Owens BL for the fifth defendant; Rory Brady SC and James Phillips BL for the sixth defendant.

Mr Justice Kelly said that the plaintiffs had bought a house, called "Quinton", in Howth, County Dublin, in 1992. The house was semi-detached and the adjoining house, owned by the first and second defendants, was known as "Woodview". In June, 1995, the existing rear and side extensions of "Woodview" were removed, as were trees in the garden. The second defendant acknowledged to the first plaintiff at this time that, while he would like to demolish the house, he knew that he was not entitled to do so.

In November 1995, further demolition works were carried out. These works were carried out in an entirely sub-standard way and entirely contrary to proper building practice. The demolition was completed in a few hours, and no notice of the intention to carry out this hurried demolition was given to the plaintiffs. The second plaintiff discovered that the works had been done when she came home from work. The defendants had admitted liability on the morning of the hearing, and the matter was one for assessment only.

It was clear that substantial repairs would have to be effected to the plaintiffs' house. That was clear for some time and criticism had been made of the plaintiffs for not having remedial works carried out already, especially since they were in receipt of in excess of £28,000 on foot of an insurance claim which they had made arising from the damage to their premises. The plaintiffs had said that one reason for the delay in carrying out repairs was that they did not wish to remove the evidence of the effects of the defendants' wrongdoing.

However, that was not a justification since there was extensive video and photograph evidence available. The second reason was a valid one. The plaintiffs had been advised that they should not effect repairs to their house until they knew precisely what the first and second defendants proposed to do with the vacant site. Two different planning permissions had been obtained in 1996 and 1997, and the first of these had been appealed by the plaintiffs to An Bord Pleanala, because of their concern as to its effects on "Quinton". Agreement had been reached between the parties as to the damages payable in respect of a number of matters. These were: the costs of repairs to be carried out at the plaintiffs premises, fees expended on the planning appeal, costs of rental accommodation while repairs were carried out, professional fees to date and into the future, and miscellaneous expenses, the sum total of which was £29,900.

Turning to the matters in dispute, Mr Justice Kelly said that the plaintiffs were entitled to a contingency sum of £5,000. There was also a dispute as to the amount of diminution in value of the plaintiffs' house which would remain even when all of the repair and redecoration work was carried out. Mr Justice Kelly said that he found the evidence on behalf of the plaintiffs to be more persuasive. Their witness had referred to a series of comparator houses in the area which had been sold between December 1996 and February 1999. In addition, the photographic evidence did not support the evidence for the defendant.

The plaintiffs' witness had suggested that the diminution in value to the plaintiffs' property was attributable to three factors, namely, doubts concerning its structural stability, difficulties which a prospective purchaser might have in obtaining finance, and the change in appearance brought about as a result of the removal of its matching pair. Mr Justice Kelly said that 50 per cent of the diminution in value was due to the extraordinary appearance of the plaintiffs' house in the absence of its matching pair.

The defendants had claimed that the plaintiffs were not entitled to damages in respect of the changed appearance of their house. They relied on the decision of the English Court of Appeal in Phipps v Pears [1964] 2 All ER 35, where a house had been demolished, leaving a nearby house exposed to frost which caused cracks in the wall. It was held that there was no right to protection against exposure to weather, which differed from the easement of support. Such a right would have to be provided for by way of a covenant, but the law would not recognise such an easement. It would be a negative easement, which would unduly restrict a landowner in the enjoyment of his own land and would hamper legitimate development. Mr Justice Kelly said that that case had no application to the present one. Firstly, this was a case, not merely of adjacent houses, but of two houses built as one, and the first and second defendants had consented to a declaration that the plaintiffs' house was entitled to a right of support.

Phipps v Pears did not concern a right of support: see Bradburn v Lindsay [1983] 2 All ER 408, 414. In Treacy v Dublin Corporation [1993] 1 IR 305, the then Chief Justice, Mr Justice Finlay, had distinguished Phipps v Pears and held that where one terraced house was demolished, leaving an internal wall exposed to the elements, which would, by virtue of the age of the house, be likely in a very short time by wind and weather to become unstable and cease to be a support, there was breach of the easement of support.

Secondly, there was no question of legitimate development being hampered in this case. In fact the converse was true. Planning permission had been required for the demolition of "Woodview", and it was almost inconceivable that it would have been granted.

To ensure that there was no question of double recovery, Mr Justice Kelly said that the house should be valued as if the repairs in respect of which the plaintiffs were being awarded £25,000 were carried out. He held that the current open market value of the plaintiffs' house was £190,000, and, assuming that £25,000 worth of works were carried out to it, it would be worth £200,000. Were it not for the demolition of "Woodview", the plaintiffs' house would be worth £280,000. If a semi-detached house were built on the site of "Woodview", it would substantially address the factors contributing to the diminution in value of the plaintiffs' house. However, no commitment had been given by the first and second defendant as to what they intended to do with the site. As a matter of probability, therefore, Mr Justice Kelly said that he had concluded that no work would be carried out on "Woodview" for at least the next few years, and even if work was done, there was no guarantee that it would involve the construction of a semi-detached house. However, some sort of dwelling house would be built at some stage. Mr Justice Kelly assessed the loss to the plaintiffs at £65,000.

As regards general damages for the inconvenience, stress and general misery which the plaintiffs had suffered, including the strain on their relationship, Mr Justice Kelly awarded £10,000 to the first plaintiff and £12,000 to the second plaintiff.

The second plaintiff had also brought uncontroverted evidence that she had begun to complain of atopic eczema in April 1997. While she had a genetic pre-disposition to this condition, prior to the activities in suit she was asymptomatic. Her symptoms had been triggered by stress and perhaps by mould allergy. Mr Justice Kelly awarded £22,500, to include £7,500 for damages into the future.

The plaintiffs had claimed aggravated damages. The principles on which such damages are awarded were set out by the Supreme Court in Conway v INTO [1991] 2 IR 305. A number of factors referred to in that case were present here. The demolition was carried out without warning, in violation of all appropriate safeguards, and at a time when the second defendant and his professional advisers knew that there was no entitlement to do it. Furthermore, the demolition was carried out notwithstanding the prior representation that the demolition would be only partial and that works of reconstruction would be complete by Christmas of that year. The site had been left as a wilderness since the time of destruction, despite the fact that the first and second defendants had the means to carry out reconstruction, and this had inconvenienced the plaintiffs much more than was necessary.

The plaintiffs were entitled to a modest sum in recognition of the added hurt or insult to them as a result of the outrageous conduct of the defendants and Mr Justice Kelly awarded £7,500 by way of aggravated damages.

The circumstances did not warrant an award of punitive damages, as claimed by the plaintiffs. In Conway v INTO, Mr Justice Finlay had stated that such damages should not be awarded if in the opinion of the court the amount necessarily payable by the wrongdoer in the form of compensatory damages constitute a sufficient public disapproval of and punishment for the particular form of wrong-doing.

Mr Justice Kelly awarded a total of £161,800 to the plaintiffs.

Solicitors: O'Connor (Dublin) for the plaintiffs; David M. Turner (Dublin) for the first and second defendants; O'Reilly Doherty & Co. (Dublin) for the third and fourth defendants; Noel O'Connor (Cavan) for the fifth defendant; Good Murray Smith & Co (Dublin) for the sixth defendant.

CORRECTION

Graham O'Neill (plaintiff/ respondent) v Canada Life Assurance (Ireland) Limited and Lloyds Abbey Life plc (defendants/ appellants).

In the report of the Supreme Court decision in the above case published on 29 March 1999, the names of counsel appearing for the parties were transposed. The appearances of counsel should have read as follows

Ercus Stewart SC and Roderick Horan BL for the appellants; Frank Clark SC and Frank Callanan SC for the respondent.