Nuisance – Tree root damage – Cause of action – Change of ownership after physical damage – Whether continuing nuisance – Whether new owner entitled to costs of remedial works
On 25 June 1990 the freeholds of a number of
blocks of flats subject to long leases were purchased by the second appellant
company for £1. The first appellant company was formed to act as the
maintenance and service company for the tenants, who owned the company. In
1989, and prior to the purchase, engineers instructed by the first appellants
reported on damage to some of the blocks caused by the root action of a plane
tree; they recommended that the tree be felled or the property be underpinned.
The respondent council had responsibility for the tree; they declined to remove
the tree. Remedial works costing £570,735 were carried out to the properties.
In the court below, the recorder found that all or most of the structural
damage occurred no later than March 1990, and that because the appellants
acquired their interest after that date, they had no cause of action in
nuisance. The appellants appealed.
the second appellant was allowed. The fact that the nuisance existed before the
second appellant became owner of the properties was irrelevant. When there is a
continuing nuisance an owner is entitled to a declaration to abate the
nuisance, damages for physical injury and an injunction. On the same principle,
the owner is entitled to the reasonable cost of eliminating the nuisance if it
was reasonable to eliminate it. A nuisance was present during the second
appellant’s ownership; acceptance of the need for remedial work established
that. The actual and relevant damage was the cost of the necessary and
reasonable remedial work. Underpinning was held to be a reasonable way of
eliminating the nuisance, and the owner could recover the cost of doing it.
There was no need to prove further physical damage from nuisance.
The following cases are referred to in this
report.
Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127; 2 TLR 301, HL
Davey v Harrow
Corporation [1958] 1 QB 60; [1957] 2 WLR 941; [1957] 2 All ER 305, CA
Delaware Mansions Ltd v Westminster City Council (1998) 88 BLR 99
Hunter v Canary
Wharf Ltd [1997] AC 655; [1996] 2 WLR 348; [1996] 1 All ER 482, CA
Lemmon v Webb
(1894) 3 Ch 1
McCombe v Read
[1955] 2 QB 429
Masters v Brent
London Borough Council [1978] QB 841; [1978] 2 WLR 768; [1978] 2 All ER 664
Smith v Giddy
[1904] 2 KB 448
Whitehouse v Fellowes
(1861) 10 CB (NS) 765
This was an appeal by the claimants, Delaware
Mansions Ltd and Flecksun Ltd, from a decision of Mr Recorder Derek Wood QC,
who had dismissed their claim for damages in nuisance against the respondents,
Westminster City Council.
Michael Pooles QC (instructed by Beachcroft Wansbroughs)
appeared for the appellants; Adrian Cooper (instructed by Vizards) represented
the respondents.
Giving the judgment of the court, PILL LJ
said: This is an appeal by Delaware Mansions Ltd (the first appellant) and
Flecksun Ltd (the second appellant) against a decision of Mr Recorder Derek
Wood QC, sitting as a deputy High Court judge, on 5 March 1998 ((1998) 88 BLR
99). The judge dismissed claims for damages by the appellants against
Westminster City Council (the council). On appeal, the case has been argued
upon a single, though basic, legal point. What is the nature of the damage
required to sustain a claim in private nuisance for encroachment?
That being so, and because of concessions made at
the trial and findings of fact not challenged, the facts can be stated briefly.
A number of blocks of mansion flats in Maida Vale were damaged by the root
action of a plane tree for which the council were responsible. The freehold in
the blocks, known as Delaware Mansions, was sold by the Church Commissioners to
the second appellant in 1990 for £1. It is not suggested that the sale price
would have been any different by reason of any of the events now to be described.
The sale was completed on 25 June. The flats were
subject to long leases and the first appellant company had been formed to act
as the maintenance and service company for the tenants, who owned the company.
The second appellant company was formed as a wholly owned subsidiary of the
first appellant company.
In 1989 there were reports of cracking in parts of
the structure of the blocks and engineers were instructed on behalf of the
first appellant. The engineers submitted a brief report and this was followed
by further investigation. At a time after the second appellant had become the
freeholder, the appellants’ expert opinion was disclosed to the council. The
engineers believed, as the judge put it, that "either the tree should be
felled or the property should be underpinned". The cost of remedial work
if the tree had been felled was very small and, it is common ground, can be
ignored for present purposes. The removal of the tree would have ended the
nuisance.
The council declined to remove the tree,
suggesting less radical solutions. It must be said that their good faith is not
challenged. It is understandable that they should wish to preserve mature plane
trees in central London. However, upon their declining to remove the tree,
underpinning of the blocks was necessary and cost £570,734.98. It is not in
this appeal disputed that underpinning was, in the circumstances, reasonable to
end the nuisance or that the amount spent to achieve it was reasonable.
The case for the council is that, because the damage
occurred before the second appellant became the freeholder, it has no cause of
action in nuisance. The judge noted the expert opinion that no significant
deterioration had taken place between February 1990 and January 1993 and that
the amount of damage that had occurred in 1989 and early 1990 was sufficient to
persuade him "that [if the tree were not felled] the blocks had to be
underpinned". The judge made the following finding of fact at p112A:
After carefully reviewing the evidence on this
point I have reached the definite conclusion that all or almost all of the
structural damage which is the subject matter of the plaintiffs’ claim had
occurred as a result of the 1989 drought not later than March 1990. If, which
is not certain, some further cracking took place in the superstructure after
that date, that cracking in my judgment was the further consequence of the 1989
to early 1990 damage to the foundations.
The appeal has been contested on the basis that
all the relevant physical damage occurred before the second appellant became
the freeholder. It was comparatively minor cracking, which could have been
remedied for less than £14,000.
The council submit that the second appellant has
no cause of action because that damage occurred before it acquired its
interest. It is accepted that individual leaseholders at the time the damage
occurred would have had a cause of action, as would the Church Commissioners as
freeholders at that time. They had a claim for £570,000, it is submitted, even
though they had suffered no loss. It needs to be added that the fact that the
freeholder’s interest is merely reversionary is not a consideration in this
case. The judge stated at p119D:
The ordinary measure of damages would be the
diminution in the value of Flecksun’s interest. The cost of repair would be
taken as prima facie evidence of the amount by which that value had been
reduced, if it were reasonable for Flecksun to have the repairs done. Again, Mr
Cooper [counsel for the council] conceded that that would be reasonable in the
present case.
council’s tree under the blocks had by March 1990 created a situation in which,
unless the tree were felled, underpinning was necessary. The council declined to
fell the tree, the roots of which remained under the blocks. Mr Adrian Cooper,
for the council, submits that in the absence of fresh physical damage after it
became the owner, the second appellant has no cause of action in nuisance. The
remedial works were not necessitated by new physical damage to the foundations
that occurred during its ownership. A series of discrete claims would arise if
and when fresh damage occurred. Each owner can recover only on the basis of the
physical damage occurring during his period of ownership. The relevant damage
to the freehold occurred while the Church Commissioners were owners. The judge
held that the second appellant could not claim for damage that had occurred
before it became owner.
There is no doubt that the appropriate action when
there is encroachment by roots is in nuisance. In Lemmon v Webb
(1894) 3 Ch 1 this court considered the cause of action available to a
landowner upon whose land roots had encroached. Lindley LJ stated at p11:
But to plant a tree on one’s own land infringes
no rights, and, if the tree grows over the soil of another, I cannot discover
that any action lies for the encroachment unless damage can be proved. I can
find no authority for the proposition that an action of trespass would lie in
such a case.
Kay LJ stated at p24:
The encroachment of the boughs and roots over and
within the land of the adjoining owner is not a trespass or occupation of that
land which by lapse of time could become a right. It is a nuisance.
For any damage occasioned by this an action on
the case would lie.
Also, the person whose land is so affected may
abate the nuisance if the owner of the tree after notice neglects to do so.
Lemmon was applied
in Davey v Harrow Corporation [1958] 1 QB 60. Lord Goddard,
giving the judgment of this court, stated that "once it is established
that encroachment by roots is a nuisance, it must follow that if damage is
thereby caused, an action on the case will lie".
In Hunter v Canary Wharf Ltd [1997]
AC 655 it was held that only a person with an interest in land has an action in
private nuisance. Upon the facts of this case, the second appellant has such an
interest. Mr Cooper, for the council, relies on the analysis of the law of
private nuisance by Lord Lloyd at p695. In so far as is relevant Lord Lloyd
stated:
Private nuisances are of three kinds. They are
(1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct
physical injury to a neighbour’s land; and (3) nuisance by interference with a
neighbour’s quiet enjoyment of his land. In cases (1) and (2) it is the owner,
or the occupier with the right to exclusive possession, who is entitled to
sue… For the basis of the cause of action in cases (1) and (2) is damage to
the land itself whether by encroachment or by direct physical injury.
It follows, Mr Cooper submits, that the physical
damage must occur during the period of ownership.
The court has been referred to cases in which the
defence of limitation was raised and the question was whether a fresh cause of
action arose with fresh damage. In Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 it was held in the
House of Lords, by a majority, that a fresh cause of action arose upon fresh
subsidence when coal was worked in such a way as to cause successive
subsidences. I do not find that principle determinative of the present issue.
However, I do find assistance in Whitehouse
v Fellowes (1861) 10 CB (NS) 765, where a limitation defence was also
raised. The trustees of a turnpike road converted an open ditch by the side of
the road into a covered drain, but in consequence of the negligent way in which
the catch pits were constructed and kept, the drain was, at times of heavy
rain, insufficient to carry off the water to its accustomed channel and it was
consequently diverted on to other land, causing damage. The issue was whether
time began to run against a plaintiff from the date of the original
construction of the works. Williams J stated that he was of opinion that
"the continuance by the defendants of that negligent and improper
condition of the road under their charge, if accompanied by fresh damage to the
plaintiff, constitutes a new cause of action". Williams J continued at
p783:
Suppose an action to have been commenced
immediately after the first injury accrued to the plaintiff’s pits from the
flow of water down the road in question: when that cause came to be tried, the
only question would be how much damage the plaintiff had actually sustained. It
would be monstrous injustice to hold that the… damages must be assessed upon
that assumption. All that the jury could do would be to find what damages the
plaintiff had sustained from the wrongful act complained of: and they would be
told to give him such damages as they might find he has sustained down to the
time of the commencement of the action. According to the assumption, the
plaintiff has sustained damage from the wrongful continuance of the nuisance.
Did the statute intend that he should have no remedy for that? The true answer
to this objection, as it seems to me, is, that no fresh cause of action arises
from each fresh damage, but that, where there is not only a fresh damage but a
continuance of the cause of damage, such continuance of the wrongful act which
caused the damage constitutes a fresh cause of action.
Byles J stated at p787 that:
There would be a new and distinct injury every
time a storm came; and this declaration is in form a declaration for a
continuance of a nuisance.
Keating J stated at p787:
Here is a continuation of the nuisance, and a new
distinct and complete cause of action in respect thereof, for which I think the
plaintiff had a right to sue.
The question is as to the remedies available to a
landowner subject to a continuing nuisance. In Whitehouse there were
fresh incidents of physical damage, but the principle I extract from it is that
there is in the case of a continuing nuisance a continuing cause of action. It
exists by virtue of the continuance of the wrongful act. A plaintiff is
entitled to a declaration. He would also be entitled, subject to the safeguards
imposed by law, to abate the nuisance: Lemmon v Webb.
In Smith v Giddy [1904] 2 KB 448 there was damage to the
plaintiff’s fruit trees by trees from the defendant’s premises overhanging his.
It was held that the plaintiff was not confined to his remedy of cutting the
offending trees; he could claim damages.
In McCombe v Read [1955] 2 QB 429 Harman J, citing Smith, held
that an injunction would also lie to restrain a continuing nuisance to property
caused by encroachment of roots. Harman J stated at p436:
If an action on the case will lie, then the
remedy of injunction must be available if the nuisance be a continuing one, as
is clearly the case here. It could not be right to throw upon the plaintiff the
burden of watching for further subterranean encroachment. In my judgment,
however, the plaintiff is not entitled to an unqualified injunction, for he has
no remedy unless a nuisance be caused. The injunction will therefore be to
restrain the defendants from allowing the roots from any tree on their property
so to encroach on the plaintiff’s land as to cause a nuisance.
Thus, where there is a continuing nuisance, the
owner is entitled to a declaration, to abate the nuisance, to damages for
physical injury and to an injunction. He is, in my judgment, and on the same
principle, entitled to the reasonable cost of eliminating the nuisance if it is
reasonable to eliminate it. This does not offend against Lord Lloyd’s
formulation in Hunter, which was not intended to define the remedies of
an owner subject to a nuisance by encroachment.
A nuisance is present during the second
appellant’s ownership; acceptance of the need for remedial work establishes
that. The actual and relevant damage is the cost of the necessary and
reasonable remedial work. Underpinning has been held to be a reasonable way of
eliminating the nuisance and the owner can recover the cost of doing it. There
is no need to prove further physical damage resulting from the nuisance.
If the council had agreed to remove the tree when
asked, the damages would have been very small. In the circumstances, which are
probably unusual, the fact that the nuisance existed before the second
appellant became the owner is irrelevant. Had it been the case that the
purchase price was reduced to reflect the existence of a continuing
nuisance, the loss would have been that of the vendor. It would have been a
matter of evidence as to how the loss was to be apportioned between vendor and
a purchaser who did the remedial work. I have been glad to avoid a conclusion
under which the right to recover a large sum would have depended on the
accident of who was owner when slight physical damage resulting from the
nuisance occurred rather than depending upon where the loss of eliminating the
nuisance actually fell.
Having resolved to allow the appeal on the ground
stated, the court did not hear submissions from counsel as to whether Masters
v Brent London Borough Council
[1978] QB 841 was correctly decided or as to its effect.
I would allow the appeal of the second appellant.
THORPE and BELDAM LJJ agreed and did not add anything.
Appeal allowed.
