Nuisance – Tree roots – Quia timet injunction – Respondents seeking injunction requiring appellants to remove ash trees from its property to prevent root damage to respondents’ property – Appellants issuing works order for removal of trees prior to issue of proceedings by respondent – Whether injunction necessary to prevent nuisance – Appropriate order for costs – Appeal allowed
The respondents’ residential property adjoined another that was owned and let by the appellant council. The appellants’ tenants had not maintained the garden and a number of self-sown ash saplings had grown there. Since 2004, the respondents had regularly complained to the appellants about the ash trees and had sought to persuade the appellants to remove them on the grounds that their roots would cause damage to the respondents’ property. In 2008, they provided the appellants with a report from a civil engineer advising that ash trees were unsuitable for planting within 15-20m of a house owing to their high water demand and that the saplings should be dealt with as a matter of urgency to prevent them causing inevitable damage. The appellants indicated that they would take no action unless and until the respondents could prove that the trees were causing significant damage. The advice of the civil engineer was that this could be expected within about five years.
In further correspondence, the respondents threatened court proceedings, but they sent no formal letter before action. Instead, in March 2009 they proceeded directly to the issue of a claim for a quia timet injunction to require the appellants to remove the trees to abate a potential nuisance. Meanwhile, unknown to the respondents, in December 2008 the appellants in fact issued a works order for the removal of the trees.
The respondents did not pursue their claim for an injunction but the costs of the proceedings remained in dispute. In a hearing on costs, the judge found that it had been reasonable for the respondents to seek an injunction rather than wait for actual harm to occur. He found that, while there was no danger of harm within the next three to five years, there was no reason for delaying the work to remove the trees since delay would only increase the eventual cost of the work as the trees grew larger. He awarded the respondents: (i) their entire costs up to the date when, as he found, they should have sent a letter before action; (ii) half of their costs from then to the date of issue of proceedings; and (iii) their entire costs thereafter. The appellants appealed.
Held: The appeal was allowed.
(1) Damage was an essential component in any claim in nuisance. Where there was no actual nuisance, the respondents had to show that the prospect of such damage was sufficiently imminent and certain as to justify the grant of quia timet relief to prevent a threatened or apprehended act of nuisance. Since the grant of such relief ordinarily involved an interference with the rights and property of the defendant, and could take a mandatory form requiring positive action and expenditure, the court would proceed with caution and required to be satisfied that the risk of actual damage occurring was both imminent and real. A claimant had also to show that an injunction was necessary in order to prevent the occurrence of the nuisance. A defendant was entitled to rely on its own rights and obligations as an adjoining landowner to cure the problem; accordingly, in principle, it should only be in cases where the risk of damage was imminent and the intransigence of the defendant obvious that the court should ordinarily be prepared to grant an injunction in order to prevent a nuisance that did not yet exist. Mandatory injunctions were not justified merely on the grounds that if nothing was done a tree on adjoining land might at some point in the future begin to cause damage to the claimant’s property.
Although there was no real dispute that the roots of the ash trees would in time cause serious and substantial damage to the respondents’ property, and that damages in those circumstances would not be an adequate remedy, it was not an appropriate case for granting a quia timet injunction. Where the experts had identified an appreciable period of time before any actual damage was likely to occur, the court had to take into account the ability and willingness of the appellants to prevent such damage before it occurred by taking steps in the meantime to control the growth of the trees on their land. The matter did not turn simply on the narrower question of whether the tree roots were likely to cause damage within a particular period of time; instead, all relevant circumstances had to be taken into account, including the cost of removing the trees and the likelihood of the appellants taking such action. Given the existence of the works order and the appellants’ unchallenged evidence that they intended to carry out those works, it was not open to the judge to find that an injunction was necessary to prevent the potential nuisance: Fletcher v Bealey (1884) 28 Ch D 688, Hooper v Rogers [1973] 1 Ch 43 and Lloyd v Symonds [1998] EWCA Civ 511 considered.
(2) In light of the above, the exercise of the court’s discretion on costs fell to be reconsidered. Taking into account the respondents’ failure to send a letter before action, which would have led to them being informed about the works order and to proceedings being avoided, but also taking into account the earlier uncertainty as to the appellants’ intention to carry out the works, it was appropriate to make no order for costs for the period up to and including service of the defence; the appellants should have their costs of the action from that date, when it had become apparent that the respondents’ claim had to fail.
Simon Butler (instructed by the legal department of Islington London Borough Council) appeared for the appellants; Robert Duddridge (instructed by Bishop & Sewell LLP) appeared for respondents.
Sally Dobson, barrister
