Davies v Bridgend County Borough Council

A claimant seeking damages in private nuisance must prove that the defendant’s breach factually caused the claimed loss. The ordinary inquiry is whether the loss would have occurred but for the breach.

Where Japanese knotweed had already encroached before any actionable breach, and the later breach neither increased nor materially contributed to the land’s residual diminution in value, that diminution was not recoverable. Its persistence during a continuing nuisance did not establish causation.

A claimant must also plead and prove any alternative basis for quantifying loss. A court cannot award damages on an unsupported hypothesis, and the burden of proving the difference between the actual and counterfactual values remains on the claimant.

Japanese knotweed from land owned by Bridgend County Borough Council had encroached onto the claimant’s adjoining land well before 2004. The council’s actionable continuing nuisance began only in 2013, when it knew or ought to have known of the relevant risk but failed to implement a reasonable and effective treatment programme. That breach continued until 2018.

The claimant sought £4,900 for the residual diminution in his land’s value after treatment. The trial judge dismissed the claim, and a circuit judge dismissed his appeal. The Court of Appeal allowed a further appeal and awarded £4,900: [2023] EWCA Civ 80, [2023] 1 WLR 1551.

The council appealed. The principal issue was whether the residual diminution in value was factually caused by the breach occurring between 2013 and 2018. The claimant additionally argued that earlier treatment would have caused the stigma and resulting diminution to decline sooner.

1. Appeal allowed. Lord Stephens, with whom Lord Reed, Lord Lloyd-Jones and Lady Simler agreed, held that no damages should be awarded. Lord Burrows concurred.

2. A claimant seeking damages for private nuisance must establish factual causation. The ordinary “but for” inquiry asked whether the claimed diminution in value would have occurred without the council’s breach between 2013 and 2018. Its purpose was to eliminate irrelevant causative factors.

3. The knotweed had encroached onto the claimant’s land well before 2004, years before the actionable breach began. There was no evidence or finding that the breach increased or materially contributed to the residual diminution in value. That diminution would therefore have occurred in any event. The later breach was eliminated as a causative factor, notwithstanding that the council remained in continuing breach until 2018.

4. Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 did not justify a different result. That decision establishes that an owner may, in appropriate circumstances, recover reasonable expenditure incurred in abating a continuing nuisance of which the defendant knew or ought to have known. Residual diminution in market value is not such remedial expenditure. Delaware was not authority for recovering diminution which arose before the defendant’s breach.

5. The claimant’s alternative case also failed. It had not been pleaded, and there was no evidence that stigma diminished over time or as to the amount by which earlier treatment would have reduced the loss. The burden remained on the claimant to establish the difference between the actual value in 2018 and the value which would have existed had treatment begun in 2013. A trial judge could not properly award damages on an unpleaded and evidentially unsupported hypothesis.

6. Lord Burrows added that the standard “but for” test remained appropriate even if the pre-breach encroachment and the later breach were viewed as successive sufficient events. The claimant had failed to prove that the alleged interference with the use and enjoyment of the land was caused by the breach. The Court of Appeal’s award of £4,900 was therefore set aside.

1. United Kingdom Supreme Court: Allowed the council’s appeal from [2023] EWCA Civ 80 and held that no damages should be awarded.
2. Court of Appeal: Allowed the claimant’s appeal, dismissed the council’s causation argument and entered judgment for £4,900: [2023] EWCA Civ 80, [2023] 1 WLR 1551.
3. County Court, circuit judge: Dismissed the claimant’s appeal on 27 May 2022.
4. County Court, District Judge Fouracre: Dismissed all claims for damages on 8 November 2021.