The Right to Lateral Support: A Responsibility of Neighbours

In essence, the right to lateral is the principle that every landholder has an implied right to the preservation of support provided to that land or by the subsoil (often from neighbouring property). The principle was first outlined in Dalton v Henry Angus and Co (1881) LR 6 App Cas 740 and has since been challenged and affirmed in the modern common law. Within contemporary law, a landholder, who is found to have unnecessarily affected the support of adjoining property, will incur the liability of having created a nuisance.

The But for Argument

The ‘but for’ test is useful when attempting to establish liability. In circumstances where construction works or the removal of land causes the adjoining to be affected, the extent of the damage incurred must not have been able to occur had it not been for the actual building or structure on the land. A landowner is only eligible to claim damages if the nuisance caused upon his land is a direct or concurrent consequence of his own building. Therefore, the test should be applied in order to determine whether the subsidence or damage would have occurred if the adjoining land were in its natural state.

Furthermore, the element of actual interference is required for a landowner to claim damages. This is outlined in the case of Barbagallo v JandF Catelan Pty Ltd [1986] 1 Qd R 245, where it was concluded that for damages to be ordered, there must be an interference with the landowner’s ordinary right of enjoyment of his property. Therefore, it is not enough for there to merely be effect to the adjoining land, there needs to be an obvious loss of enjoyment incurred by the landowner for a claim of nuisance to arise.

Additionally, the elements of determining a nuisance must also be fulfilled. These are generally: -

• the applicant owns the property interfered with or has a right to possess the property;
• the interference with the plaintiff’s enjoyment of the property was caused by the respondent; and
• the interference caused by the respondent was substantial and unreasonable.

Where it is found that the aforementioned elements have been fulfilled, the court may order a mandatory injunction to compel the respondent to restore the land and property as it was prior to the nuisance occurring. It is vital to consider the many complicating factors when dealing with these disputes including: -

• if the loss of enjoyment stems from land on your property or technically on the neighbouring property;
• the extent to which the parties have mitigated their respective damages; and
• the benefit gained from neighbouring works which have caused a nuisance.

If you are facing development and property disputes or require advice to risks of development and your rights, Straits Lawyers are here to help. We are now offering online services in both English and Chinese.

Straits Lawyers is evolving! With our recent growth and development, we have expanded and are excited to announce the launch of our new name HandO Lawyers. Stand by for the new age of legal representation brought to you by HandO!

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.