Kirk & Ors v London Borough of Brent

In tree-root nuisance, failure to notify the tree owner before remedial works does not automatically defeat liability or make the claim liable to be struck out. Delaware Mansions v Westminster City Council [2001] UKHL 55 distinguishes between liability for a continuing nuisance and the amount of remedial expenditure recoverable. Notice and a reasonable opportunity to abate may affect recovery of underpinning costs, but the court must also consider whether the defendant knew or ought to have known of a reasonably foreseeable risk. Evidence of similar root damage nearby may support constructive notice. Where these matters are fact-sensitive and plausibly arguable, they should be determined at trial.

The first three claimants appealed against an order made by His Honour Judge Dean QC in the Central London County Court on 6 December 2004. Their claim alleged nuisance and negligence arising from encroachment by roots from the defendant council’s tree onto their property, causing subsidence and underpinning expenditure. The judge struck out the claim because the council had not been notified until after the underpinning works. A separate claim by the fourth to sixth claimants concerning another tree was not struck out.

The appeal concerned whether prior notification was legally essential to liability or recovery, and whether the pleaded evidence could establish foreseeability or constructive notice sufficient to give the claim a reasonable prospect of success.

1. Appeal allowed. The claim was not one which could properly be regarded as bound to fail or as having no reasonable prospects of success.
2. The court proceeded on the basis identified in Solloway v Hampshire County Council (1981) 79 LGR 449: liability for nuisance caused by tree roots depends on whether the encroachment was known or ought to have been known to the person responsible for the tree and created a reasonably foreseeable risk of damage. The adequacy of the council’s maintenance and the foreseeability of damage were fact-sensitive issues for trial.
3. The respondent’s reading of Delaware Mansions v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 was rejected. The House of Lords’ discussion of notice and a reasonable opportunity to abate did not establish a general rule that, without formal notice before remedial works, there could be no cause of action or recovery of any damages. Notice was relevant to the separate question of what remedial expenditure could be recovered. The court reconciled the relevant discussion with the statement that reasonable remedial expenditure may be recovered where there is a continuing nuisance of which the defendant knew or ought to have known.
4. The claimants could rely on circumstances said to amount to constructive notice, including a March 1998 letter acknowledging root encroachment from another council tree onto a neighbouring property and the possibility that it had contributed to movement. Whether that knowledge was sufficient to put the council on notice of a similar risk to the claimants’ property, together with information concerning other nearby properties, could not be decided summarily. The mere presence of a mature tree near a house built on London clay would not, by itself, establish notice or liability, since that would approach strict liability.
5. The absence of notice before the underpinning might affect recovery of the full underpinning costs, but it did not necessarily bar all damages, particularly as further damage was alleged after the works. It was inappropriate to strike out the underpinning-cost claim at that stage. The issues were remitted for determination at trial.
6. The relevant parts of the order below were discharged. The appellants were awarded the costs of the appeal and the striking-out application below, subject to detailed assessment if not agreed, with an interim payment of £15,000.

1. Court of Appeal (Civil Division) [2005] EWCA Civ 1701: allowed the appeal, discharged the relevant parts of the order below, and made costs orders in favour of the appellants.
2. Central London County Court: on 6 December 2004, His Honour Judge Dean QC struck out the first three claimants’ claim for damages concerning tree-root damage, holding that it had no reasonable prospect of success because the council was not notified until after the underpinning works.