England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR RECORDER DEREK WOOD QC)
(Sitting as an Official Referee)

		Royal Courts of Justice Strand London WC2
		21 July 1999

LORD JUSTICE PILL:

This is an appeal by Delaware Mansions Ltd ("the first appellants") and Flecksun Ltd ("the second appellants") 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 appellants 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 appellants. The engineers submitted a brief report and this was followed by further investigation. At a time after the second appellants had become freeholders, 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 appellants became freeholders, they have 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 which 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 (p 112A):

"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 appellants became freeholders. It was comparatively minor cracking which could have been remedied for less than £14,000.

The council submit that the second appellants have no cause of action because that damage occurred before they acquired their 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 freeholders' interest is merely reversionary is not a consideration in this case. The judge stated (p 119D):

"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."

The relevant facts are therefore that the incursion of the roots of the 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 Cooper, for the council, submits that in the absence of fresh physical damage after they became owners, the second appellants have no cause of action in nuisance. The remedial works were not necessitated by new physical damage to the foundations which occurred during their 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 appellants could not claim for damage which had occurred before they became owners.

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 p 11:

"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 p 24:

"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 appellants have such an interest. Mr Cooper, for the council, relies on the analysis of the law of private nuisance by Lord Lloyd at p 695. Insofar 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 the 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 the 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 AC 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 onto 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:

"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 construction 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 that:

"There would be a new and distinct injury every time a storm came; and this declaration is in form a declaration for a continuation of a nuisance".

Keating J stated:

"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 Keating 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 p 436:

"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 appellants' 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 appellants became owners 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 on 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] 1 QB 841 was correctly decided or as to its effect.

I would allow the appeal of the second appellants.

LORD JUSTICE THORPE:

I agree.

LORD JUSTICE BELDAM:

I also agree.

ORDER: Appeal of second claimant allowed with costs; no order on the appeal of the first claimant with no order as to costs; leave to appeal to the House of Lords refused. (This order does not form part of the approved judgment)