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Delaware Mansions Ltd and antr v. Westminster City Council (1999) 46 EG 194
In June 1990 the first appellant purchased the freehold of a number of blocks of flats subject to long leases from the Church Commissioners. The second appellant (Delaware Mansions) was formed to act as the maintenance and service company for the tenants who owned the company.
In 1989, prior to the purchase, engineers instructed by the first appellant reported on damage to some of the blocks caused by the roots of a plane tree. They recommended that it be felled or the property be underpinned. The council did not wish to fell the tree so remedial works were carried out at a cost of £570,735.
At first instance it was held that the appellants had no cause of action in nuisance as most of the structural damage occurred before they became owners. The appellants appealed.
The case for the council was that by March 1990 the tree root damage under the blocks was such that felling of the tree and underpinning was necessary and, as the council declined to fell the tree, the roots remained under the blocks. In the absence of fresh physical damage after they become owners in June 1990 the second appellants had no cause of action in nuisance. The remedial works were not necessitated by new physical damage to the foundations during their ownership. If and when fresh damage occurred new and separate causes of action would arise. Each owner can only claim for damage occurring during his or her own period of ownership. The relevant damage in this case occurred when the Church Commissioners were owners.
Pill LJ, giving the unanimous decision of the C of A, said that there was no doubt that the appropriate action in respect of tree root damage is nuisance (Lemmon v. Webb (1894) 3 Ch I) and that only a person with an interest in land has an action in private nuisance (Hunter v. Canary Wharf Ltd (1997) AC 655).
From the case of Whitehouse v. Fellows (1861) 10 CV (MS) 765 Pill LJ extracted the principle 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". He concluded on the basis of Lemmon v. Webb, Smith v. Giddy (1904) 2 KB 448 and McCowles v. Read (1955) 24 B4 29 that where there is a continuing nuisance the owner is entitled to the remedies of a declaration, abatement of the nuisance, damages for physical injury and an injunction. Furthermore he is entitled to the reasonable cost of eliminating the nuisance if it is reasonable to do so.
The acceptance of the need for remedial work established that the nuisance was present during the second applicant's ownership. The relevant damage was the cost of necessary and reasonable remedial work and underpinning was held in the court below to be a reasonable way of eliminating the nuisance. Thus the owner can recover the cost of doing it without the need to prove further physical damage. The fact that the nuisance existed before the second appellant became the owner was irrelevant.
Pill LJ added:
I have been glad to avoid a conclusion under which the right to recover a large sum could have depended on the accident of who was the owner when slight physical damage resulted from the nuisance occurred rather then depending upon where the loss of eliminating the nuisance actually fell.
A sentiment that will no doubt be shared by any property owner subject to continuing nuisance from encroaching tree roots.
By contrast the plaintiffs in the following case were not so lucky, although they sustained substantial damage. In Bybrook Bevan Garden Centre Ltd and others v. Kent County Council (1999) EGCS 132 the plaintiff owned land, a garden centre, bordered on two sides by a stream and on a third by a lane maintained by the defendant. The stream was carried under the road in a culvert constructed by the predecessor of the defendant council to carry the water into the River Great Stour. The culvert was adequate until the construction of the M20 and a business park in the early 1980s caused increased run off with the result that the lane and the plaintiff's site flooded after heavy rain. The plaintiffs asked the council in 1994 to enlarge the culvert but it refused by letter in 1995 on the grounds that the existing one was structurally sound. In 1996, following torrential rain, the plaintiff's site was seriously flooded causing £123,000 of damage. The plaintiff brought action against the council alleging that the culvert constituted a nuisance and/or the defendants were guilty of negligence.
The court was obliged, albeit reluctantly, to follow the Court of Appeal decision in Radstock Co- operative and Industrial Society v. Norton-Radstock UDC (1967) Ch 1094 where it was held on similar facts that a riparian owner had to take the river bed as it was with such inconviences as were inherent in it. Furthermore, since that case turned an riparian rights the plaintiff could not claim that it was inconsistent with Sedleigh Denfield v. O'Callaghan (1940) AC 880 and Goldman v. Hargrave (1967) AC 645, where it as held that in certain circumstances a defendant can be taken to have adopted or continued a nuisance which he personally had not created. There was also no question of the defendants failing to prevent the culvert becoming blocked as in Pemberton v. Bright (1960) IWLR 436. The same considerations would also apply to the allegation of negligence (Leakey v. National Trust (1980) 2WLR65)
The only assistance the court could give to the hapless plaintiff was to hope that "an appropriate authority" would call on the defendants to take the remedial action required by S25 the Land Drainage Act 1991, but this would not help them to recover their loss.