Nuisance

Citation

(2002), "Nuisance", Property Management, Vol. 20 No. 1. https://doi.org/10.1108/pm.2002.11320aab.003

Nuisance

Nuisance

Delaware Mansions Ltd and another v. Westminster City Council (2001) The Times October 26

The House of Lords has confirmed the decision of the Court of Appeal in this case (see Property Management, Vol. 18 No. 2, pp. 145-6), holding that where there was a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure might be recovered by the owner who had to incur it.

The case involved damage, caused by the roots of a tree owned by Westminster City Council, to a block of mansion flats owned by the claimant. Westminster Council tried to avoid liability on the basis that all the damage had occurred before the claimant acquired the property and thus only the previous owners could sue for damages. The Court of Appeal rejected the argument on the basis that there was a continuing nuisance. The case broke new ground in English law in that "until now there has been surprisingly little authority … about the recoverability of remedial expenditure after encroachment by tree roots" (per Lord Cooke).

During the course of his judgement Lord Cooke made the following observation:

… It was important not to impose unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours was the key to the solution of problems in this field, it could not 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…

However, he went on to point out that:

… Should they elect to preserve the tree for environmental reasons, they might fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost had fallen might recover it, even though there might be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future.

Thus, the situation seems to be that the fact that damage to property by tree roots occurred during a previous ownership will not be a bar to the present owner recovering the cost of remedial works as long as the tree that caused the damage has not been removed, and the owner of it had reasonable notice of the damage, and a reasonable opportunity to abate the nuisance.