A knotty issue and the effect on nuisance claims

Davies v Bridgend County Borough Council: Supreme Court has granted permission to appeal following the Court of Appeal decision

In February 2023 the Court of Appeal handed down a decision in Davies v Bridgend County Borough Council [2023] EWCA Civ 80 relating to a claim in private nuisance concerning an encroachment of Japanese knotweed.

The Supreme Court is continuing a busy few months on matters involving private nuisance following the decisions of Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 (relating to a “visual intrusion” nuisance at the Tate Modern gallery) and in Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16 (relating to an escape of oil off the Nigerian Coast).

Background

Japanese knotweed has long been a scourge of property owners in the United Kingdom due to its damaging nature and the difficulty of removing it from a property.

In this case, the claimant became aware of Japanese knotweed encroaching onto his property in 2017, however, a letter of claim was first sent to the defendant in 2019. It became apparent that the knotweed had been encroaching onto the claimant’s land since at least 2004, if not earlier.

Documentation disclosed late in the litigation process established that the defendant had been aware of the knotweed for significantly longer than was first thought.

In 2012 the Royal Institution of Chartered Surveyors (RICS) published a report describing and highlighting the difficulties and damage that can occur as a result of Japanese knotweed.

Decision of First Instance

Based on the late disclosure and the RICS 2012 report, the district judge held that the defendant had breached its duty in nuisance between 2013 and 2018. This point was uncontested by both parties. The district judge found that a continuing encroachment was sufficient to show the defendant had breached its duty of care.

However, the claimant’s claim failed.

The damages element of the claim was purely for diminution in value rather than actual damage to the property. The Court of First Instance found that the claim for damages was pure economic loss, which is unrecoverable in the tort of nuisance. The court provided the decision of Williams v Network Rail [2018] EWCA Civ 1514 as authority to support its decision on pure economic loss.

Court of Appeal Decision

The matter was appealed to the Court of Appeal which subsequently overturned the decision on pure economic loss.

It was successfully argued that the principle set out in Williams allowed for a claim for diminution in value because there had been an encroachment onto the property causing physical interference and consequential losses, including diminution in value, which were recoverable.

The court did confirm that if the encroachment was only trivial, there would be no actionable claim.

The Court of Appeal also made a contentious decision in respect of causation and its relationship with the timing of the breach.

In short, it was argued by the defendant that the encroachment and diminution in value had already happened several years before they were found to be in breach (in 2013). Therefore, given the loss had predated the breach there should be no damages awarded in these circumstances.

The Court of Appeal rejected this argument and referred to the decision in Delaware Mansions Ltd V Westminster City Council [2002] 1 AC 321 to support its finding on this point.

Delaware Mansions involved ongoing subsidence damage to a property caused by a tree owned by the defendant. The claimant paid a significant amount to underpin the property given the defendant had failed to remove the offending vegetation. The defendant attempted to argue that there was no claim as the damage to the property had occurred during previous ownership and the new owners had bought the property, paid for underpinning and issued proceedings against the defendant for the cost of the underpinning. That argument failed because the court found that the tree continued to cause a nuisance (ongoing movement of the property) after the claimant had acquired the property and so the cost of underpinning was recoverable as it was required to prevent that ongoing nuisance. 

The Court of Appeal in Davies referred to the fact that in Delaware Mansions, despite the encroachment being historic, the damage was recoverable given the continuing nuisance caused by the defendant’s tree. 

I don’t agree with the Court of Appeal’s conclusion in reference to Delaware Mansions and believe that this could be prone to re-review when it appears at the Supreme Court.

In Delaware Mansions the claimant had no choice but to abate the continuing nuisance (ongoing movement of the property) due to the defendant’s breach of duty by not removing their tree. Thus the defendant’s ongoing breach or nuisance occurred and was still occurring before the damages (the cost of underpinning to abate the nuisance) were incurred.

However, in Davies, the damage occurred before there was any breach of duty by the defendant. Therefore, in my view, the Delaware Mansions principle doesn’t apply where the damages awarded were incurred before there was any breach of duty.

Key Decisions by the Supreme Court

The main priorities of the Supreme Court will be to consider whether the diminution in value is a pure economic loss in the absence of any physical damage to the property and whether the presence of Japanese knotweed having already encroached from the defendant’s land gives rise to ongoing nuisance and right to claim damages.

This latter point seems in direct contradiction to the decision in Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16 where the presence of oil caused by the defendant’s breach of duty did not give rise to a fresh cause of action so as to defeat the defendant’s limitation arguments. The Court of Appeal’s decision in Davies was made prior to the Supreme Court’s decision on Jalla and, therefore, it will be interesting to note whether the Supreme Court refers to its recent decision in its judgment. 

The point on causation with reference to Delaware Mansions, while a secondary point in this case, could be a vital consideration in future nuisance claims. If a claimant is capable of claiming for damage which occurred before the defendant has breached their duty of care, in matters involving previous encroachment, then this could provide assistance to claimants in future cases.

This decision by the Supreme Court is likely to have a significant effect on nuisance claims and, therefore, we will await the outcome with great interest.