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You’re not above the law when it comes to neighbourly duties

Every home owner wants to protect their own property. Unfortunately for the owners of several huts at Rozel, they quickly learnt that finding a way to force their neighbour to fix a potential hazard on their land was far from easy. In the recent case of Venturini v Ghyll Limited [2016] JRC 2004, in which Viberts represented Mrs Venturini, the law has been helpfully clarified to confirm the obligations an owner or occupier of higher land has to its lower neighbour.

Background

In 2012 there was a landslide in Rozel which damaged some of the idyllic beach huts lining Rozel pier. For one poor hut owner, the landslide completely destroyed the hut which her family had owned for generations.

The higher land was owned by Ghyll Limited, a Jersey limited liability company. The attitude of Ghyll was to deny any responsibility for the original landslide and to claim that despite the earlier landslide, its land was safe. One of the hut owners, Mrs Venturini, was simply not prepared to risk damage to her own hut and she decided to issue legal proceedings to seek a mandatory injunction which would force Ghyll to make its land safe.

The court first had to make orders to establish whether the land was unsafe. Access was granted to Mrs Venturini and an expert who she had appointed to provide a report. Although Ghyll was also ordered to provide a report from an expert, they did not comply.

Unsurprisingly, Mrs Venturini’s expert opined that if there was sufficient wet weather, the land was indeed unsafe and was susceptible to a further landslide. The opinion of the expert was for Ghyll to carry out investigatory work on the land in order to determine the extent of remedial work required. He further advised that the investigatory work should be carried out as soon as possible, otherwise the huts below were in danger of being damaged. The other risk was the potential for a landslide to cause a personal injury to anyone unfortunate enough to be in the vicinity when it happened.

Despite the report, Ghyll refused to pay for or carry out the investigatory works. Ghyll also refused Mrs Venturini access to carry out the investigatory work at her own expense. She was therefore left with no choice but to bring the matter back to court again, which she did with the blessing of all the other hut owners. At this point, Ghyll stated they wished to play no further part in the proceedings and, despite previously offering to pay for some remedial work on their land (which Mrs Venturini’s expert said would not be sufficient), it claimed to have no assets other than the land itself.

A welcome clarification

At court, Mrs Venturini had to establish a duty which Ghyll owed to her. The court therefore considered two Jersey property law principles, “voisinage” and “emboulement”.

The Jersey property law relating to landslides is embodied within the customary law principle known as “emboulement”, which states the lower ground must accept land which falls from the higher land. However, there is an important proviso: the landslide must be a natural landslide and the home owner of the higher land must not have done anything on his land to cause the landslide. The obvious difficulty with this principle is that it is not always possible to prove that someone has caused or contributed to the landslide.

Legal practitioners have long thought that because current knowledge and technology allowed parties to determine whether their land was susceptible from a natural landslide (and could therefore put in place provisions to try and avoid such a hazard), it was wrong for owners of dangerous land to rely on the strict principles of “emboulement” to avoid liability. It was therefore thought that a landowner who was on notice that his land was susceptible to a natural landslide could be forced by the owner of the lower land to make his land safe and, at the very least, make the recalcitrant landowner liable for any damage caused to the lower land. Unfortunately, no cases had come before the Royal Court which specifically decided a case on this point, however, in Venturini the Royal Court provided a useful clarification.

It was clear that for Mrs Venturini to obtain her injunction, the principle of “emboulement” did not apply. The now pressing need to access the land was to prevent a landslide rather than to claim damages for the 2012 landslide, which caused only minor damage to Mrs Venturini’s hut. The duty was therefore established with reference to the customary law principle of “voisinage” - a principle akin to the more widely recognised English concept of nuisance. This principle establishes a mutual duty on neighbours, quasi ex-contractu, not to use their properties in any way that causes damage to each other. This duty applies whether you are an owner or occupier of the relevant land.

The court said:

“For the purposes of this case, we draw the following principle from the authorities, namely that, whilst the owner/occupier of lower lying land is required to accept anything falling or descending naturally from higher lying land, if there is a hazard on the higher lying land, whether natural or man-made, of which the owner/occupier is or ought to be aware, and he does not take all reasonable steps to prevent or minimise the risk, that failure will constitute a breach of his duties under the law of voisinage to the owner/occupier of the lower lying land; rendering him responsible if damage is subsequently occasioned to the lower lying land by the hazard he has failed or omitted to so address.”

A link was consequently made between the principles of emboulement and voisinage, allowing Mrs Venturini to be granted access to Ghyll’s land to carry out the investigatory work. The court also ordered Ghyll to indemnify the costs Mrs Venturini incurred in carrying out this work.

On a finishing note, it is worth mentioning that the court considered whether the States of Jersey could intervene pursuant to the Statutory Nuisance (Jersey) Law 1999. For the hut owners this would have been the easiest route as the expense could have been initially met by the States who could then claim back the costs from Ghyll (or take any assets it could to help satisfy the costs). One of the hut owners had already written to the Minister who had determined there was no statutory nuisance which would warrant his department’s involvement. The court was therefore asked to state obiter whether they determined this to be wrong, however, the court determined that it was not for them to do so. It is likely that the hut owners may approach the Minister again at some point in the near future once the cost for stabilising the land is known, as there is clear evidence of the danger Ghyll’s land creates to not only the hut owners but also people using the public road (which the court also recognised). If the Minister maintains his position, the hut owners could potentially apply for the Minister’s decision to be judicially reviewed by the Royal Court.

Practical advice for landowners

The case of Venturini makes two things clear for landowners who genuinely and reasonably believe their land is at risk from a landslide from their higher neighbouring land.

Write to your neighbour and put them on notice that if they fail to make the land safe, they will be liable for any damage caused to the lower land by any subsequent landslide, whether naturally caused or not.

If there is a significant risk of damage, you have the chance to force the landowner to carry out the work before the damage actually happens. However, if the landowner does not accept that his higher land is unstable, you will have to prove it by way of an expert report.