Selby owned the freehold of 11 Royal Mint Street, London. Whitbread & Co owned the Rising Sun pub at number 12. Whitbread wanted to demolish and rebuild number 12.
Whitbread obtained consent from the licensing justices, but that consent came with a condition that the new pub be set back from the street to provide a wider footpath. Whitbread entered into an agreement with London County Council that the strip of land to the front of the new pub would be transferred to the Council, and dedicated as a highway.
Whitbread then served a party structure notice on Selby, and an award was made authorising the works. The Rising Sun was demolished in March 1915 and, in accordance with the agreement, on April 1915 the strip of land was transferred to the Council. The works were completed in August 1915 and the new Rising Sun pub had opened.
In January 1916 the lack of support to the part of the party wall that was exposed when the Rising Sun was set back was causing damage, and Selby’s surveyor and the third surveyor issued an addendum award requiring Whitbread to erect a pier on the land had transferred to the Council to support the exposed wall. Whitbread did not appeal the award, and did not comply with the award. Selby issued proceedings to enforce the addendum award.
Whitbread argued that, as they had transferred the relevant land to the Council, they were no longer building owners within the meaning of the 1894 Act; following Mason v Fulham Corporation the Council were now the relevant building owner, and the award should have been made against them.
Whitbread also argued that the surveyors’ tribunal had no authority to make an addendum awards because the first award had dealt with the issues in dispute exhaustively.
The Court found that Whitbread was liable as building owner irrespective of the fact that the relevant land had been transferred to the Council. Whilst Mason v Fulham Corporation was correct that benefits, such as the right to receive compensation, was transferred to a new owner, liabilities such as the obligation here to remedy a withdrawal of support, was not transferred; it remained with the building owner that did the work.
On the second issue the Court found that the surveyors’ tribunal retains the ability to make further addendum awards where required.
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