Delaware Mansions Ltd & Anor v City Of Westminster

A continuing nuisance caused by root encroachment gives rise to a continuing cause of action. A landowner may recover the reasonable cost of eliminating the nuisance where remedial work is reasonably necessary, even if the substantial physical damage occurred before the claimant acquired the land. Further physical damage during the claimant’s ownership need not be proved. The remedies for a continuing nuisance include damages, an injunction, abatement and declaratory relief. The formulation of private nuisance in Hunter v Canary Wharf Ltd was not intended to define exhaustively the remedies available for encroachment.

The appellants owned mansion flats damaged by the roots of a plane tree for which Westminster City Council was responsible. The structural damage had substantially occurred before the second appellant acquired the freehold, but the nuisance continued and underpinning was reasonably required after the acquisition. The trial judge dismissed the claim, holding that the second appellant could not recover for damage occurring before it became owner: (1998) 88 BLR 99.

The appeal concerned whether a claimant subject to a continuing nuisance could recover the reasonable cost of remedial works without proving fresh physical damage during its ownership.

1. The appeal of the second appellant was allowed. There was no order on the appeal of the first appellant.

2. Root encroachment is actionable in private nuisance where it causes damage. In a continuing nuisance, the cause of action continues by virtue of the continuance of the wrongful act. The landowner may seek declaratory relief, abatement, an injunction and damages.

3. The appropriate measure in this case was the reasonable cost of eliminating the nuisance. The council had declined to remove the tree, and underpinning was accepted to be a reasonable and necessary remedy. The relevant damage was therefore the cost of the remedial work, rather than only physical damage occurring during the claimant’s ownership.

4. Fresh physical damage during the period of ownership was unnecessary. The existence of the continuing nuisance and the reasonable need for remedial work were sufficient. This approach did not conflict with Lord Lloyd’s classification of private nuisances in Hunter v Canary Wharf Ltd, which was not intended to define the remedies for nuisance by encroachment.

5. The unusual facts meant that the nuisance’s existence before acquisition did not defeat recovery. If the purchase price had reflected the nuisance, questions of apportionment between vendor and purchaser might have arisen. The court did not decide whether Masters v Brent London Borough Council was correctly decided or determine its effect.

• Court of Appeal (Civil Division) — Allowed the second appellant’s appeal from the decision reported at (1998) 88 BLR 99; no order was made on the first appellant’s appeal. Leave to appeal to the House of Lords was refused.
• High Court — Mr Recorder Derek Wood QC dismissed the appellants’ claims for damages.