London Borough of Islington v Elliott & Anor

A permanent quia timet injunction to prevent an apprehended nuisance requires proof that an actual infringement will occur unless restrained. The danger must be real and sufficiently imminent, and the threatened damage must be substantial and incapable of adequate redress by damages.

Imminence is assessed in all the circumstances. Relevant matters include the probability and timescale of injury, the cost of preventive action, and the defendant’s ability and willingness to avert the harm before it occurs. A mandatory injunction is not justified merely because a tree may cause damage at some future time. Where the landowner has already resolved to remove the source of the risk well before damage is expected, an injunction is unnecessary.

The Council appealed against a County Court costs order made after proceedings concerning Ash trees on its land. The adjoining owners had sought damages and a mandatory quia timet injunction requiring removal or control of the trees. The trees were removed after proceedings began, leaving costs as the only live dispute.

The County Court tried the underlying claim to determine which party would have succeeded. It found no existing physical damage, but considered that serious damage was likely in future and that an injunction would have been granted. It therefore awarded most of the claimants’ costs against the Council.

The central issue was how probable and imminent physical damage must be before a permanent quia timet injunction may be granted to prevent a threatened nuisance.

1. Appeal allowed. The claimants would not have obtained a permanent quia timet injunction. The County Court’s costs order was therefore set aside.

2. Damage is an essential component of actionable nuisance. In the absence of existing physical damage, a claimant seeking permanent quia timet relief must prove a real and substantial risk of imminent damage. Because such an injunction interferes with the defendant’s property and may compel positive action and expenditure, the court proceeds cautiously. A permanent injunction requires proof that an actual infringement will occur unless relief is granted.

3. The inquiry is not governed by a fixed period defining imminence. The court assesses the probability that injury will occur, its likely timescale, the gravity and remediability of the anticipated damage, the cost of prevention, and whether the defendant can and will avert the danger before it materialises. The approach in Fletcher v Bealey (1884) 28 Ch D 688 and Lloyd v Symonds [1998] EWCA Civ 511 was applied. Hooper v Rogers [1973] 1 Ch 43 was distinguished because the threatened subsidence there was inevitable, restoration was the only effective remedy, and the defendant would not act without an order.

4. Where tree damage is not expected for an appreciable period, the defendant’s ability and willingness to control or remove the trees in the meantime are material. A claimant must show that an injunction is necessary. A mandatory injunction is not ordinarily justified merely because an adjoining tree may cause damage at some future time.

5. Although serious damage would probably have resulted if the roots eventually reached the claimants’ drains and foundations, no damage was expected for at least three years. By December 2008 the Council had issued a works order to remove the trees, and its pleaded intention to perform the work was unchallenged. The County Court therefore could not properly find that an injunction was necessary.

6. Exercising the costs discretion under Civil Procedure Rules 1998, the court ordered no costs for the period up to and including service of the defence. A further letter before action would probably have revealed the works order and avoided proceedings, but allowance was also appropriate for the Council’s earlier misleading communications and later silence. Once the defence disclosed the works order, the claim was bound to fail, and the Council was entitled to its costs thereafter.

Lady Justice Rafferty and Lord Justice Longmore agreed with Lord Justice Patten.

1. Court of Appeal (Civil Division): The Council’s appeal was allowed. The County Court’s costs order was replaced by no order for costs up to and including service of the defence, with the claimants to pay the Council’s costs thereafter.
2. Clerkenwell and Shoreditch County Court: His Honour Judge Mitchell held that the claimants would have obtained a quia timet injunction had the trees not been removed. He ordered the Council to pay all costs up to 6 March 2009, half the costs from 7 to 20 March 2009, and all costs thereafter.