Davies v Bridgend County Borough Council

Nuisance – Causation – Damages – Appellant owning land on which Japanese knotweed grew – Knotweed encroaching onto respondent’s adjacent property – Respondent’s claim for damages for diminution in value of land dismissed – Court of Appeal allowing respondent’s appeal – Appellant appealing – Whether respondent entitled to damages based on diminution in value of property where same damage present prior to the breach of duty – Appeal allowed The respondent owned a property at 10 Dinam Street, Nant-y-moel, Bridgend, Wales. It adjoined land owned by the appellant local authority. Japanese knotweed growing on the appellant’s land encroached into the respondent’s land. The respondent became concerned about the knotweed in 2017 and raised it with the appellant in 2019. The respondent brought a claim in nuisance against the appellant. The district judge found that the knotweed on the appellant’s land appeared to have been present for more than 50 years and had spread from the appellant’s land into the respondent’s land before 2004, when the respondent bought his property. The district judge found the appellant was in breach of the relevant duty in nuisance owed to the respondent as a neighbour from 2013, when it knew or ought to have known that the knotweed was growing on its land, until 2018, when a reasonable and effective treatment programme finally started. However, the judge held that damages for diminution in value were irrecoverable. On a first appeal, the district judge’s ruling was upheld. On a further appeal, the Court of Appeal upheld the finding of continuing breach but found that damages for residual diminution of the value of the respondent’s land were recoverable: [2023] EWCA Civ 80; [2023] PLSCS 27. The appellant appealed. Network Rail intervened. Its interests were affected by the issues raised as it owned land on which Japanese knotweed grew and had spread to neighbouring land. Held: The appeal was allowed. (1) In the tort of private nuisance involving encroachment of Japanese knotweed from the appellant’s land onto the respondent’s land, the respondent was required to establish that the appellant’s breach of duty in fact caused the loss suffered. In the context of this case, the “but for” test asked whether the diminution in value of which the respondent complained had occurred “but for” the appellant’s breach of duty between 2013 and 2018. If the diminution in value would have occurred in any event, the appellant’s breach of duty was eliminated as a cause of the diminution in value so that there would be no causal link between the appellant’s breach of duty and the diminution in value: Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] EGLR 12 considered. (2) The Court of Appeal held that this case was not an exception to the “but for” test. Rather, it relied on Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] PLSCS 226; [2002] 1 AC 321 as regards establishing that the harm, that was the diminution in value, had been caused by the continuing breach of the relevant duty in private nuisance. Delaware established that where there was a continuing nuisance, the claimant was entitled, in appropriate circumstances, to abate the nuisance and recover the reasonable costs incurred in doing so. However, a loss representing a diminution in market value was not an aspect of reasonable costs incurred in abating a continuing nuisance. Delaware was not authority for the proposition that diminution in market value was recoverable, regardless of whether the diminution occurred prior to the defendant’s breach of duty. That case did not contemplate or consider that a claim by a property owner could be made for diminution in value of land which had been sustained without any breach of duty on the part of the defendant. (3) The district judge found that at some date “well before 2004” Japanese knotweed growing on the appellant’s land encroached onto the respondent’s land. In the context of the present case, the “but for” test asked whether the diminution in value of which the respondent complained had occurred “but for” the wrongdoing of the appellant between 2013 and 2018. The answer to that question was to be seen in the context that there was no evidence and no finding by the district judge that the appellant’s breach of duty between those years had increased or materially contributed to the diminution in value of the respondent’s land. In that context, the answer to the “but for” question was simply that the diminution in value had occurred long before any breach by the appellant of the relevant duty in private nuisance first occurred in 2013. Accordingly, the application of the “but for” test eliminated the appellant’s subsequent breach of duty as a causative factor. The diminution in value would have occurred in any event so that there was no causal link between the appellant’s breach of duty and the diminution in value claimed. Accordingly, the diminution in value of the respondent’s land had occurred prior to and was not caused by the appellant’s subsequent tortious conduct. (4) The respondent raised the further issue that he was entitled to recover damages in respect of diminution in value because the stigma causing the diminution decreased over time so that the amount of diminution in value also decreased over time. The respondent asserted that if the appellant had commenced treatment in 2013, the stigma and the resultant amount of diminution in value would have decreased by 2018. Accordingly, an award should be made for the difference between the amount of diminution in value in 2018 and what it would have been in 2018 if treatment had commenced in 2013. However, the duty of a trial judge was to consider only those matters which were in issue on the pleadings, and which were supported by evidence. The respondent’s further issue was not pleaded and there was no evidence to support it. Furthermore, the onus of proof remained on the respondent to establish the difference between the amount of the diminution in value in 2018 and what it would have been if treatment had commenced in 2013. The district judge would have acted improperly if he had made any award in favour of the respondent on a hypothesis not pleaded and not supported in evidence. An award of damages in relation to diminution in value could not be supported on the basis of the further issue raised by the respondent. Matthew White (instructed by Dolmans Solicitors of Cardiff) appeared for the appellant; Tom Carter (instructed by Ryans Solicitors of Liverpool) appeared for the respondent; Howard Palmer KC and Jack Harris (instructed by DAC Beachcroft Claims Ltd) appeared for the intervener. Eileen O’Grady, barrister Click here to read a transcript of Davies v Bridgend County Borough Council