Freeholder plaintiff acquiring block of flats after damage inflicted by encroaching tree roots – Second plaintiff suing as management company owned by lessees of flats – Whether either plaintiff entitled to sue highway authority for negligent failure to control tree growth
In the early years of this century the Church Commissioners erected 19 blocks of flats, collectively known as Delaware Mansions, Maida Vale, London W9 (the estate). At all material times the 167 flats on the estate were demised on long leases granted by the commissioners. On April 5 1990 the commissioners sold the freehold of the estate for the nominal price of £1 to the second named plaintiff (Flecksun), a wholly owned subsidiary of the first named plaintiff (Delaware), which was wholly owned by the lessees of the flats (the lessees). As a party to each of the leases, Delaware operated as the management company of the estate with the right, inter alia, to enter each flat for the purpose of carrying out the lessor’s or its own obligations. One month before the sale to Flecksun, Delaware received a report from a firm of structural engineers, which confirmed that blocks 9-12 had sustained structural damage during the drought of the previous summer. The report concluded that the damage was attributable to encroachment by the roots of an 80-year old plane tree standing outside block 10, for which the defendant council were responsible as the highway authority. Remedial work was begun in October 1991 and completed in July 1992 at a total cost to the plaintiffs of £570,735.
At the trial of the plaintiffs’ action against the council based on nuisance and negligence the judge found: (i) applying Solloway v Hampshire County Council [1981] 79 LGR 449, that the council had been negligent in that they had, from the 1970s onwards, adopted a reduced pruning programme which they knew or ought to have known created a real risk of stimulating root growth to the point of weakening the foundations by reason of moisture reduction; (ii) that the relevant (physical) damage had occurred (and consequently the cause of action had accrued) at a time when the freehold was still owned by the commissioners. The outstanding issue was whether the council were correct in contending that neither plaintiff had sufficient interest in the property at the material time to maintain a cause of action in negligence or nuisance.
Held Judgment was given for the defendant council.
1. Flecksun had no interest in the estate at the material time and, having failed to take an express assignment of the right of action vested in the commissioners, had no title to sue: see Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858, per Lord Denning MR at p868G. Flecksun derived no assistance from Thompson v Gibson (1841) 7M&W 456 since the wrongful damage in that case continued to be inflicted after the change of ownership. For that reason the court declined to follow Masters v Brent London Borough Council [1978] QB 842.
2. The interest of Delaware at all material times, including the licence to enter the flats on certain occasions, was essentially contractual, not proprietary. There was no right to sue unless the plaintiff could at least claim a possessory right: see Hunter v Canary Wharf Ltd [1997] 2 WLR 684. The lessees might have been able to sue in their own right, but that point did not arise for decision.
Michael Pooles (instructed by Wansbroughs Willey Hargrave) appeared for the plaintiffs; Adrian Cooper (instructed by Vizards) appeared for the defendant council.
