Phipps v Pears and others: CA 10 Mar 1964

In about 1930 a house, no 16, one of two adjacent houses in common ownership was rebuilt. One wall was built close against the adjacent no. 14. Thirty years later no. 14 was demolished by its later owner, the Defendant, leaving the adjoining wall of no.16, which was rough and unpointed, exposed to the weather. During the next winter, frost caused cracks in the wall. The Plaintiff, successor in title of the owner who built no. 16, sought to recover from the Defendant for the damage done to the wall. He claimed an easement of protection and said that he was entitled to protection for the wall by virtue of the general words implied by Section 62 of the 1925 Act in the conveyance of no 16 to him.
Held: The claim failed. There was no right known to the law to protection from no. 14 for the wall of no. 16 against exposure to weather. Accordingly, no such right or advantage had passed to the Plaintiff under the relevant statutory provisions.
Lord Denning MR, said: ‘There are two kinds of easement known to the law: Positive easements, such as a right of way, which gives the owner of land a right himself to do something on or to his neighbour’s land: and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways onto the adjoining building or the adjoining land, and is thus doing something to the neighbour’s land, exerting a thrust on it; see Dalton -v- Angus per Lord Selborne, L.C. But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution, because the law has been very chary of creating any new negative easements.
Take this simple instance: suppose you have a fine view from you house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if you neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as the right to a prospect or a view: see Bland -v- Moseley . The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view . Such a covenant is binding on him by virtue of the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant; but it is not binding on a purchaser who has no notice of it, see Leech -v- Schweder .’
. . And ‘The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development, see Dalton -v- Angus per Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would put a break on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise, every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather.’
Lord Denning MR, Pearson, Salmon LJJ
[1964] 2 All ER 35, [1965] 1 QB 76, [1964] 2 WLR 996, [1964] EWCA Civ 3
Bailii
Law of Property Act 1925 62
England and Wales

Updated: 12 May 2021; Ref: scu.262798