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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kirk & Ors v London Borough of Brent  EWCA Civ 1701 (08 December 2005)
Cite as:  EWCA Civ 1701
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE DEAN QC)
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE LLOYD
|(1) JOANNE ELIZABETH KIRK|
|(2) ZOE MARANGOS|
|(3) KALLIOPE GRAVES||1st, 2nd & 3rd Claimants/Appellants|
|(4) GHULAM HUSSAIN|
|(5) PHILLIP HARROW|
|(6) DEBORAH HYAMS||4th, 5th & 6th Claimants|
|LONDON BOROUGH OF BRENT||Defendant/Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR CHRISTOPHER MAKEY (instructed by Messrs Beecham Fisher Ridley, Southend on Sea SS1 1AH) appeared on behalf of the Respondent
The 4th, 5th & 6th Claimants did not appear and were not represented
Crown Copyright ©
"(1) The presence of highly shrinkable clay subsoils in the area underneath No 42 and No44.
(2) The Defendants' daily operation of the trees for which they are responsible.
(3) The knowledge of the effect of T1 and/or T2 on No 44 admitted in the letter from Woodgate & Clark pleaded in paragraph 11 above. [Which should in fact be a reference to paragraph 12 of the particulars of claim.]
(4) The size to which [the two trees] had been allowed to grow without any adequate maintenance and the proximity of the trees to the property.
(5) The knowledge (including the expert knowledge) of the risk of tree root-related subsidence which was reasonable to expect a public body such as the Defendants to have.
(6) The absence of any or any adequate programme of tree maintenance which might have eliminated the said risk."
"The Defendants can neither admit nor deny the matters pleaded in paragraph 5 [of the particulars of claim, which is as regards the alleged damage] as they were not notified of any alleged damage to No 42 until after work had been undertaken to that property. In the absence of any and/or any appropriate notice having been given to the Defendants, it is denied that the Defendants can be liable for any remedial expenditure that has arisen arising out of damage caused by trees to the front of the property in the ownership of the Defendants, such damage not being admitted."
"Paragraph 18 is denied. In the absence of any notification of the risk of damage occurring to No 42 it was not reasonably foreseeable to the Defendants that there was such a risk of damage."
Then there is a sentence dealing with No 44 and it continues:
"[Tree 1] was removed by the Defendants in March 2001. Prior to the removal of [tree 1] both [tree 1] and [tree 2] were regularly pollarded and/or pruned by the Defendants who took all reasonable steps to ensure that [both trees] were kept in a proper and reasonable condition. [Both trees] were therefore adequately and properly maintained having regard to the size of the trees and their proximity to the properties. It is denied that there was no or no adequate programme of tree maintenance undertaken by and/or on behalf of the Defendants."
"Although liability is not admitted, it is recognised that roots from Brent's tree have encroached upon the foundations to the front of the property and as such there is the possibility these might have contributed to the movement."
Then they go on to make points about movement at the rear, and they continue:
"Although root encroachment has been demonstrated, there is no evidence to suggest the clay was desiccated. The existence of the roots might therefore have been of no consequence. You will appreciate that the presence of roots does not automatically equate to property damage."
"It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected."
"It is at this point that I see Solloway v Hampshire County Council 79 LGR 449 as important as a salutary warning against imposing unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable."
"In the end, in my opinion, the law can be summed up in the proposition that, where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it."
He held that that was the purchaser, and he dismissed the appeal on that basis.
ORDER: Appeal allowed with costs, both of the appeal and the costs of the striking-out application below, to be subject to detailed assessment if not agreed; it is ordered that the respondents pay £15,000 to the appellants by way of an interim payment of costs.