Adjoining properties — Continuing nuisance — First defendant’s predecessor planting hedge close to boundary — Second defendant acquiring adjoining property — Claimant alleging damage caused by hedge — Expert evidence that damage due to defective drains — Claimant seeking to amend claim — Whether amended claim having real prospect of success — Appeal allowed
The claimant had owned and occupied a house for many years. The first defendant had owned the adjoining property until 2000, when she sold it to the second defendant, who in turn sold it to a third party in 2004. Part of the boundary of the defendant property abutted a rear wall of the claimant’s house. Between 1977 and 1983, before the first defendant owned the adjoining property, the then owners planted leylandii close to the boundary.
In June 2000, the claimant informed the first defendant that the trees were causing damage to his property through water entering the rear wall. The first defendant cut the trees cut down to stumps that stood approximately 30cms above ground level. Shortly afterwards, she sold the property to the second defendant.
The claimant brought an action for damages against the first and second defendants. The original particulars of claim stated that the trees, including the stumps and roots, were causing damage. It was alleged that the claimant had advised the second defendant, both orally and in writing, of the damage caused by the trees and had asked for the tree stumps to be removed and the soil to be excavated to a level below the boundary wall in order to prevent further damage. The claim against the first defendant was discontinued. The claim against the second defendant was in nuisance and negligence.
Expert reports concluded that the damage was being caused by defective drains and not the trees. The second defendant applied for summary judgment. The claimant accepted that the claim founded upon tree damage could not be sustained and applied to amend the claim to allege a continuing nuisance based upon the report’s criticisms about the design and lack of maintenance of the drain.
A deputy judge refused permission to amend the claim, concluding that the proposed amendment had no real prospect of success. The claimant appealed.
Held: The appeal was allowed.
Where a nuisance arose without the act or default of a defendant, liability could be established only if the defendant had “continued” the nuisance. In the instant case, the second defendant was not responsible for the construction or design of the drain. He could be liable for the nuisance only if he had knowledge or presumed knowledge of the nuisance, and he had failed to use any reasonable means to rectify it. Further, a defendant must have reasonably foreseen that the defect or condition would, if not remedied, cause damage to a claimant’s land: Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] QB 836 considered
The degree of knowledge required and the nature of any remedial action or investigation raised potentially difficult questions of fact and, once the evidence had been fully addressed, it might become apparent that the claimant had failed to make out a case of sufficient knowledge, and permitting the amendments would have done him no favours. However, it would be wrong to prevent the claimant from seeking to make his case.
Robert Horner (instructed by Shoosmiths, of Basingstoke) appeared for the claimant; Ewan Paton (instructed by Beachcroft LLP, of Bristol) appeared for the second defendant.
Eileen O’Grady, barrister
