Davies v Bridgend County Borough Council

Nuisance – Diminution in value – Damages – Appellant seeking damages from respondent in respect of Japanese knotweed on appellant’s land – County court dismissing claim – Appellant appealing – Whether appellant entitled to recover damages based on diminution in value of property where actionable nuisance established – Appeal allowed The appellant owned a property at 10 Dinam Street, Nant-y-moel, Bridgend, Wales. It adjoined land owned by the respondent local authority. There was Japanese knotweed growing on the respondent’s land which encroached into the appellant’s land. The appellant became concerned about the knotweed in 2017 and raised it with the respondent in 2019.  The appellant brought a claim in nuisance against the respondent. The district judge found the knotweed on the respondent’s land seemed to have been present for more than 50 years and had spread from the respondent’s land into the appellant’s land before 2004, when the appellant bought his property as an investment.  The district judge found the respondent was in breach of the relevant duty in nuisance owed to the appellant as a neighbour, starting from 2013 until 2018, when a reasonable and effective treatment programme finally started.  The judge held, amongst other things, that all the diminution in value damages were irrecoverable in law, based on the decision of the Court of Appeal in Williams v National Rail [2018] EWCA Civ 1514; [2018] PLSCS 129; [2019] QB 601. On appeal, the circuit judge accepted the appellant’s claim that the damages were losses consequential on the nuisance found but held that Williams was authority for the proposition that damages for diminution in value due to knotweed were irrecoverable in nuisance. The appellant appealed. The respondent submitted that the residual diminution in value (the reduction in value left even after knotweed had been properly treated) could not have been caused by the nuisance because the knotweed encroachment had already happened before the breach of duty.    Held: The appeal was allowed. (1) The courts below had misunderstood the decision in Williams. The Court of Appeal there held that private nuisance was a violation of real property rights, which meant either interference with the legal rights of an owner or interference with the amenity of the land, ie, the right to use and enjoy it. Although nuisance was sometimes broken down into different categories, those were merely examples and rigid categorisation might not easily accommodate new social conditions or might undermine proper analysis of factual situations which had aspects of more than one category but did not fall squarely into any one of them.  The proposition that damage was always an essential requirement of the tort of nuisance had to be treated with caution as it was not entirely correct. Moreover, the concept of damage in that context was highly elastic. In the case of nuisance through interference with the amenity of the claimant’s land, physical damage was not necessary to complete the cause of action.  Nuisance might be caused by an inaction or omission, and an occupier would be liable for continuing nuisance if with knowledge or presumed knowledge of the existence of the nuisance they failed to take reasonable steps to bring it to an end when there was ample time to do so. Similarly, an occupier would also be liable for failing to act to remove a hazard on their land which they were aware of, and where there was a foreseeable risk it would damage their neighbour’s land and it went on to do so. There was also a broad unifying principle of reasonableness between neighbours. (2) Once it was accepted that there was damage leading to a loss (the diminution in value) which was consequential on the nuisance, there was no authority that consequential damage to the claimant’s economic interests was irrecoverable. Reading Williams as a whole, it made a distinction between “pure economic loss”, ie, loss without physical damage or physical interference which was not actionable, and physical change to the claimant’s property as a result of the presence there of knotweed rhizomes. Once that natural hazard was present in the claimant’s land (to a non-trivial extent), the claimant’s quiet enjoyment or use of it, or the land’s amenity value, had been diminished.  For the purposes of the tort of nuisance, that amounted to damage and it was the result of a physical interference. If consequential residual diminution in value could be proved, damages on that basis could be recovered. They were not pure economic loss because of the physical manner in which they had been caused. The duty in nuisance which arose in this case depended on actual or presumed knowledge on the part of the respondent of knotweed on its land and the risk it represented. It was not a tort of strict liability. (3) The answer to the issue of causation was found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlay much modern tort law and, more particularly, the law of nuisance. The label nuisance or negligence was treated as of no real significance. The concern of the common law lay in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it. Where there was a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure might be recovered by the owner who had incurred it. The fact that the encroachment was historic was no answer when there was a continuing breach of duty as a result of persisting encroachment. (4) Viewed at 2018, after five years of breach of duty on the part of the respondent failing to treat the knotweed on its own land adequately, the knotweed was still encroaching on the appellant’s land and any treatment by the appellant would have been futile unless and until the respondent complied with its duty as a good neighbour and dealt with its own knotweed. That was not an exception to the “but for” test. The harm to the quiet enjoyment and amenity suffered by the appellant persisted in 2018 precisely because the nuisance was a continuing one. The harm had been caused by the breach of duty.  Diminution in value was recoverable and causation was not a defence to a claim where there was a continuing nuisance. In the present case, there was evidence in support of the figure of £4,900 as being a fair figure for the residual diminution in value. Tom Carter (instructed by High Street Solicitors Ltd, of Liverpool) appeared for the appellant; Matthew White (instructed by Dolmans Solicitors, of Cardiff) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Davies v Bridgend County Borough Council