Delaware Mansions Ltd and Another v Westminster City Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEYN,LORD BROWNE-WILKINSON,LORD COOKE OF THORNDON,LORD CLYDE,LORD HUTTON |
| Judgment Date | 25 October 2001 |
| Neutral Citation | [2001] UKHL 55 |
| Date | 25 October 2001 |
| Court | House of Lords |
and Others
[2001] UKHL 55
Lord Steyn
Lord Browne-Wilkinson
Lord Cooke of Thorndon
Lord Clyde
Lord Hutton
HOUSE OF LORDS
My Lords,
Since the opinion of Lord Cooke of Thorndon in this case is the last which he will deliver in the House of Lords, it is appropriate to pay tribute to his massive contribution to the coherent and rational development of the law in New Zealand, in England and throughout the common law world. His opinion in the case before the House is characteristically lucid and compelling. For the reasons he has given I would also dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon. I agree with it and for the reasons which he has given I, too, would dismiss this appeal.
My Lords,
This case raises an issue, on which there is surprisingly little authority in English law, about the recoverability of remedial expenditure incurred after encroachment by tree roots. By writ and statement of claim issued in the Queen's Bench Division, Official Referees' Business, on 7 June 1995, two plaintiffs claimed damages and interest from the Westminster City Council ("Westminster") as highways authority for the area including the property affected and as owner of a London plane tree growing in the footpath of the highway, Delaware Road in Maida Vale, some four metres from the front boundary of the property. The first plaintiff was Delaware Mansions Ltd ("Delaware"), a management company owned by the tenants of Delaware Mansions, which consist of 19 blocks divided into 167 flats, occupying the whole of the north-eastern side of the road. The second plaintiff was Flecksun Ltd ("Flecksun"), a wholly-owned subsidiary of Delaware. Flecksun had in 1990 acquired the freehold of Delaware Mansions from the original owners and developers, the Church Commissioners.
The case came before Mr Recorder Derek Wood QC, sitting as an Official Referee. He dismissed the claims of both plaintiffs, while making a number of findings of fact favourable to them: (1998) 88 BLR 99. They appealed to the Court of Appeal, but Delaware did not pursue its appeal, nor has it taken any part in the hearing in your Lordships' House, so the House is not required to consider whether it had standing to sue. The appeal of Flecksun came before a Court of Appeal consisting of Beldam, Pill and Thorpe LJJ [2000] BLR 1. For reasons given by Pill LJ in a judgment delivered on 21 July 1999 the court allowed Flecksun's appeal, with the effect that Flecksun was to recover judgment for £835,430.92 (being the expenditure claimed, £570,734.98, including removal costs of the leaseholders, plus interest). By leave granted by an Appellate Committee, Westminster appeals to this House.
The history and the issue
The flats are held by the individual tenants under long leases granted by the Church Commissioners. On 5 April 1990 the Church Commissioners agreed to sell their freehold reversion to Flecksun for £1. The sale was completed by registered transfer on 25 June 1990. There was no express assignment of any right of action against Westminster respecting the plane tree, and it has not been argued that there was an implied one. It is common ground that the nominal consideration was not influenced by the effect of the plane tree on the property.
The plane tree was probably planted at the time when the Maida Vale estate, including Delaware Mansions, was developed by the Church Commissioners in the early years of the 20th century. It is now almost as high as the 5-storey brick Delaware Mansions. It stands, somewhat isolated from other smaller trees, approximately between flats numbers 73 to 82 and 83 to 92. As found by the trial judge, damage by cracking came to be caused by the roots of the tree, through causing desiccation and shrinkage of the London clay soil, to blocks 9, 10, 11 and 12. The dates of the cracking have assumed importance, I think disproportionate, in the argument of the case. It is not disputed that Westminster owns and controls the tree, one of no less than 7000 street trees (half of them London planes) within its jurisdiction. The trees are regularly inspected by an officer of the council, and tree-pruning is carried out by contractors. Westminster's records show that in 1983 the contractors were told to trim the crown of this tree by 50% and in 1986 by 25%. From the mid 1970s the tree had been allowed to develop a large crown. About that time severe tree-pruning went out of fashion; people liked to see a more bushy effect; with lighter pruning the demand of the foliage for water increased and roots grew more extensively.
During 1989, a year of drought, Delaware's then managing agents (Chestertons) began to receive reports from residents in blocks 9 to 12 that cracks were appearing in the structure. In December 1989 the agents instructed structural engineers, the Cairns Smith Partnership ("CSP"), to make a report on the cracking. In a report delivered to the Church Commissioners on 5 March 1990 CSP concluded that the cracking had been caused by the roots of the tree, and recommended that it be removed. If removal was not possible, they recommended underpinning. It will be noted that this was before the transfer agreement between the Church Commissioners and Flecksun, but it was a brief rather than a detailed report. It was evidently not seen by Westminster at that stage.
After the transfer of the freehold to Flecksun, another firm of managing agents took over. They requested Mr F G Finch, a qualified architect specialising in the refurbishment of London properties, to look into the damage in more detail and collaborate with CSP. In December 1990 and January 1991 CSP conducted a more detailed survey of the cracking and concurrently Finch Associates presented a comprehensive report. Mr Finch endorsed the view that the worst cracking had resulted from foundation damage, that remedial steps were urgently required, and that underpinning was necessary. After considering much expert and other evidence the judge made a finding, which again has become prominent in the case, that:
"… all or almost all of the structural damage which is the subject-matter of the plaintiffs' claim had occurred as a result of the 1989 drought not later than March 1990. If, which is not certain, some further cracking took place in the superstructure after that date, that cracking in my judgment was the further consequence of the 1989 to early 1990 damage to the foundations."
The attention of Westminster appears first to have been drawn to the problem when on 14 August 1990 (that is to say, a month and three weeks after the transfer) Chestertons sent to Westminster CSP's March report. No reply or immediate action resulted, but eventually, to quote the judge, it was agreed shortly after 3 January 1991 at a site meeting that root pruning would be carried out:
"… by cutting a trench approximately 300mm wide and 1 metre deep along the back edge of the pavement, and then back-filling the trench with a PVC liner to reduce re-growth. It was also made clear by the plaintiffs at this meeting that the underpinning works proposed by CSP would nevertheless have to proceed and, as part of those works, a further trench would be cut at basement level. It was not and never has been admitted by Westminster that the structural damage described by CSP had in fact been caused by tree roots."
Subsequently soil consultants were engaged by CSP and their representative (Mr Quarrell) gave evidence, as did an arboriculturist (Dr Biddle) and a consulting engineer (Mr Butcher) engaged by Westminster. There was a strong conflict of expert evidence at the trial. In the end the judge found on the balance of probabilities that the ground beneath blocks 10 and 11, and to a lesser extent blocks 9 and 12, had become desiccated as a result of the activities of roots belonging to the plane tree in front of block 11. He also made the following findings, which are of undoubted importance:
"In October 1991 root pruning was carried out and a pavement-level root barrier inserted as previously agreed by Westminster. But the plaintiffs adhered to the advice of CSP, and occupiers of some of the basement flats began to move out to enable CSP's programme of underpinning works to be carried out. This work stated in January 1992. On 6 March 1992 and again on 9 April 1992 the contractors found tree roots beneath the foundations to blocks 10 and 11. These findings powerfully corroborate the evidence of tree roots and desiccation put forward by Mr Quarrell, and they necessitated the insertion of piles instead of underpinning in the locations affected. The work was completed in July 1992 at a total cost to the plaintiffs (including the removal costs of the leaseholders) of £570,734.98.
Westminster agree that this sum was in fact incurred, and that it was a fair and reasonable sum for the works which were actually carried out and for the other heads of expenditure which were in fact incurred. Mr Butcher however stated that in his opinion the scope and extent of the works was excessive if and insofar as they were brought about by the roots of this tree. He could accept that structural works to the stairwells to blocks 10 and 11 were justified. He challenged the need to extend those works beyond those areas, suggesting that the additional work which he was unable to accept was carried out for the sake of protecting the building against possible future damage rather than repairing the damage which had occurred up to that date. Mr Cairns explained to me that this was a matter of professional judgement. He agreed that a line had...
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