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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davies v Bridgend County Borough Council [2023] EWCA Civ 80 (03 February 2023) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2023/80.html Cite as: [2023] 4 All ER 623, [2023] Env LR 21, [2023] HLR 28, [2023] 1 WLR 1551, [2023] WLR 1551, [2023] EWCA Civ 80, [2023] WLR(D) 70 |
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ON APPEAL FROM the COUNTY COURT at SWANSEA
HIS HONOUR JUDGE BEARD Appeal No. SA27/2021
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BIRSS
and
LORD JUSTICE SNOWDEN
____________________
MARC CHRISTOPHER DAVIES |
Appellant |
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- and - |
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BRIDGEND COUNTY BOROUGH COUNCIL |
Respondent |
____________________
Matthew White (instructed by Dolmans Solicitors) for the Respondent
Hearing dates: 17 January 2023
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Crown Copyright ©
Lord Justice Birss:
"The only actual damage in this case, which is not physical, is diminution in value. However I consider Williams is authority that such economic damage is not recoverable. The phrase "the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset" could not be clearer. I accept [counsel for the appellant's] argument that this is damage leading to a loss which is consequential on the nuisance found. However, it is not recoverable damage, it is pure economic loss."
The appeal – recoverability of diminution in value
"35. The Recorder then addressed damages for the diminution in value of the claimants' properties arising from interference with their quiet enjoyment of their land. The Recorder held that, given that the claimants were entitled to recover damages to treat the knotweed in order to remove the nuisance, the appropriate diminution in value was the residual diminution in value once the treatment was completed. The Recorder held (at [243]-[259]) that Mr Williams was entitled to £10,500 and Mr Waistell was entitled to £10,000 for that reason."
i) On the first basis, characterised as an encroachment claim, there was no tort of nuisance because while knotweed had encroached onto the claimant's land from NR's land, and was not trivial (paragraph 53), nevertheless that knotweed on the claimant's land had caused no actual physical damage. The existence of physical damage was a necessary element of the tort put this way and so the claim put that way failed (see paragraphs 19 to 21). The fact the presence of the knotweed had resulted in a diminution in value of the properties did not constitute damage.
ii) On the second basis, characterised as a quiet enjoyment/loss of amenity claim, the tort was made out because the presence of knotweed on NR's land was a sufficiently serious interference with the claimants' right of quiet enjoyment/ amenity value of their properties to constitute an actionable nuisance. The recorder found that a landowner in the claimants' position would suffer a loss of enjoyment. He considered that the diminution in value of the properties, combined with the fact that any owner would have to live with the concerns and adverse consequences of a devalued property, is properly characterised as an aspect of the amenity of the land protected by the tort of private nuisance.
"43 … To paraphrase Lord Lloyd's observations in Hunter at 696C, in relation to his third category, loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, such as may directly follow from, and reflect, loss caused by tangible physical damage to the land, but damages may nevertheless be awarded for loss of the land's intangible amenity value. […] What is relevant is the objective effect on the amenity value of the land itself, and it is that effect which satisfies any requirement there may be to show damage. Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance."
"48. The purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land as such as a facet of the right of ownership or right to exclusive possession. The decision of the Recorder in the present case extends the tort of nuisance to a claim for pure economic loss. Counsel for the claimants did not identify any case in which a similar decision was reached or, more generally, where the amenity of a property has been held, for the purposes of actionable private nuisance, to include the right to realise or otherwise deploy the value of the property in the financial interests of the owner. Contrary to the view of the Recorder, that would not be an incremental development of the common law by way of analogy but a radical reformulation of the purpose and scope of the tort."
55. Japanese knotweed was rightly described by the Recorder (at [5]) as a pernicious weed. It does not only carry the risk of future physical damage to buildings, structures and installations on the land. Its presence, and indeed the mere presence of its rhizomes, imposes an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop, and in the cost of developing, the land, should the owner wish to do so. As the RICS paper observed, any improvement or alteration of the property requiring the removal of contaminated soil would require disposal of the soil either on site or, more likely, off site by special, and probably expensive, procedures. For all those reasons, Japanese knotweed and its rhizomes can fairly be described, in the sense of the decided cases, as a "natural hazard". They affect the owner's ability fully to use and enjoy the land. They are a classic example of an interference with the amenity value of the land.
56. The Recorder found that: (1) NR had actual knowledge of the presence of Japanese knotweed on its land behind the claimants' respective bungalows in 2013; (2) NR was, or ought to have been, aware of the risk of damage and loss of amenity to adjoining properties caused by the close proximity of knotweed no later than some time in 2012 with the publication of the EA code of practice and the RICS paper; and (3) NR failed reasonably to prevent the interference with the claimants' enjoyment of their properties. That is sufficient, on the well-established principles I have outlined earlier, to give rise to a cause of action in nuisance: Goldman v Hargrave; Leakey v National Trust For Places of Historic Interest or Natural Beauty. If, and insofar as, damage is required to complete that cause of action, it is constituted by the diminished ability of the claimants to use and enjoy the amenity of their properties.
64. Again, I cannot see anything in those statements which is inconsistent with a finding of liability in the present case on the basis of interference with the utility and amenity of the claimants' properties from the presence of the Japanese knotweed rhizomes. On the contrary, consistently with the elastic concept of damage in this area of the law and with a finding of liability in the present case, Schiemann LJ said (at [77]):
'The underlying policy of the law is to protect a claimant against what Markesinis and Deakin in their book on Tort Law (4th ed, 1999) describe at p.422 as 'unreasonable interference with the claimant's interest.' Phrases such as 'physical damage to land' are portmanteau phrases which embrace the concept of land being affected and this resulting in damage to the economic interests of another'.
"69. In that case [Delaware], however, physical damage to the buildings had actually occurred. It was not necessary to analyse the situation, and nor was the situation in fact analysed, on the basis of loss of amenity value prior to the physical damage of the buildings. Furthermore, unlike Japanese knotweed and its rhizomes, the branches and roots of a tree are not in themselves a hazard.
[…]
73. In short, there is no reason why the legal position concerning nuisance caused by the encroachment of the branches or roots of trees should undermine the right of the claimants in the present case to claim damages for nuisance by reason of the encroachment of Japanese knotweed and its rhizomes from NR's land."
"75. […] I see no reason why the claimants should not be able to argue and succeed before us on the ground of an unlawful interference with their enjoyment of the amenity of their properties due to the impairment of their right to use and enjoy those properties. They have not relied upon any evidence that was not before the Recorder, and the characteristics and damaging nature of Japanese knotweed have always been at the very heart of this litigation."
"'Pure Economic Loss' is the term used to describe an economic loss to the claimant which does not result from any physical damage to or interference with his person or tangible property."
The respondent's notice causation point
"29 […] I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. […]
[…]
31 In both the second Wagon Mound case and Goldman v Hargrave the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it."
[…]
33 Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during [the claimant's] ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of [the defendant], as in effect the judge found. 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 agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000. On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench.
[at 35-37 Lord Cooke considered authorities from Australia and the USA]
38 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. […]
The respondent's notice point on quality of evidence
Conclusion
Lord Justice Snowden:
Lord Justice Baker