Davey v Cambridge City Council

JurisdictionEngland & Wales
JudgeMr Justice Ouseley
Judgment Date14 July 2015
Neutral Citation[2015] EWHC 3427 (Admin)
Docket NumberCO/1332/2015
CourtQueen's Bench Division (Administrative Court)
Date14 July 2015

[2015] EWHC 3427 (Admin)



Royal Courts of Justice

Strand, London WC2A 2LL


Mr Justice Ouseley


Cambridge City Council

Mr Hutchins appeared on behalf of the Applicant

Mr Findlay QC appeared on behalf of the Respondent

Mr Justice Ouseley

This is a renewed application for permission to apply for judicial review following refusal on paper by Mr John Howell QC sitting as a Deputy High Court Judge. The case concerns action which was, at the time when the proceedings began, about to be taken (and now has been taken) to reduce the crown, thin the volume, of five London plane trees in the Alexandra Square conservation area of Cambridge.


The trees are owned by the city council on land owned by the city council but were encroaching on to the land of neighbouring householders and, it was said, causing the properties damage.


The local authority initially considered taking action to lop or thin the trees in 2010 but took the view, following representations made by a local action group with the benefit of an expert report that they commissioned, that now was not the time to do that.


The negotiations between the city council and the neighbouring land owner continued. The city council took the view that its liability was both high in relation to risk and substantial in relation to finances and decided to take the action to which I have referred.


The claimant, with the backing of the action group, decided to take action to stop this decision of 5 March 2015 being implemented. Mitting J refused to grant interim relief on 23 March 2015. Permission to appeal was refused by Laws LJ, but a temporary injunction restraining implementation of the decision was granted on 24 March 2015 by Black LJ. Two days later McCombe LJ refused the application for permission to appeal and for an injunction. The works to thin the five trees has been carried out.


Mr Hutchins says that nonetheless the proceedings should continue. The claimant raised with the local authority in correspondence before the decision was made the question of whether there was a defence available through coming to the nuisance. The defendant took the view that there was no such defence; incontestably right.


The defendant also considered an issue in relation to prescription. Although I note in the documents before me that there is some support for the fact that it considered whether there might be an argument in relation to prescription, the defendant decided that it did not wish to be involved in such an argument.


The challenge in its unamended form alleged that the local authority had failed to consider whether there might be an arguable defence on the grounds that the local authority had acquired by prescription the right for its trees to encroach on the neighbouring householders' land. The claimant now seeks to amend the grounds further to argue that the local authority had in fact erred in law in concluding that there was no defence to the claim of the householders based upon a right to encroach by tree roots acquired by prescription.


I add at this stage there appears to be some dubiety about quite how that claim for prescription is put; whether it is on the basis that the prescription period ran from 20 years from initial encroachment however much larger the tree roots might get, or whether the 20-year period for prescription only ran from the point at which the trees reached maturity, in relation to which there was some evidence provided by the action group that the trees had reached maturity in the 1960s. It is not necessary for me to resolve precisely how the point was put, but it is clear that the argument is capable of some degree of variation.


Fundamental to the arguments put forward with considerable tenacity by Mr Hutchins on behalf of the claimant is the decision of the Supreme Court in Lawrence v Fen Tigers Ltd [2014] UKSC 13. This is a case which concerns, among other matters, a question of whether it could be a defence to a claim in nuisance that the nuisance had become a right acquired by prescription. The issue concerned the acquisition of a right by prescription to create a noise nuisance. The Supreme Court took the view that such a right of prescription could be acquired, depending on the specific factual circumstances. Mr Hutchins draws attention to a particular passage in that case in the judgment of Lord Neuberger, in particular between paragraphs 28 to 41. Although those paragraphs are concerned with noise nuisance, the argument is that the language is applicable to nuisance by encroachment of tree roots or overhang by tree branches. There is, it has to be said, nothing in the judgment that suggests that the court was intending to go wider than noise nuisance or nuisances of a similar nature — perhaps, for example, dust — but did not suggest that what they were saying had anything to do with the different problems of nuisance and trespass created by trees.


There are two House of Lords cases which deal with nuisance by trees to which my attention has been drawn. None of those were cited in the Lawrence v Fen Tigers case. The first of those, which is the decision in Lemmon v Webb [1895] AC 1, represents the classic statement of the law, which is that no right can be acquired by prescription to a nuisance by tree encroachment. It deals specifically with trees.


As pertinent is the decision in the House of Lords in the Delaware Mansions Limited v Westminster City Council [2001] 1861, which in the headnote it says:

"Since the impairment of the load bearing qualities of residential land is itself a nuisance, the failure to remove a tree responsible for such damage constituted a continued nuisance allowing the affected owner to recover the costs reasonably necessary for remedial works."

As I say, neither of those cases were cited and there is no suggestion that they were disapproved.


Mr Hutchins seeks permission first to amend his...

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