Josephine Robbins (Respondent/Claimant) v London Borough of Bexley (Appellant/ Defendant)

JurisdictionEngland & Wales
JudgeLord Justice Vos,Lord Justice Aikens,Lord Justice Moore-Bick
Judgment Date17 October 2013
Neutral Citation[2013] EWCA Civ 1233
Docket NumberCase No: A1/2012/3046
CourtCourt of Appeal (Civil Division)
Date17 October 2013

[2013] EWCA civ 1233

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

TECHNOLOGY AND CONSTRUCTION COURT

Mr Justice Edwards-Stuart

[2012] EWHC 2257 (TCC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lord Justice Aikens

and

Lord Justice Vos

Case No: A1/2012/3046

Between:
Josephine Robbins
Respondent/Claimant
and
London Borough of Bexley
Appellant/ Defendant

Mr Andrew Bartlett QC and Mr Muhammed Haque (instructed by Clyde & Co) for the Appellant, London Borough of Bexley

Mr Stephen Furst QC and Mr Daniel Crowley (instructed by Plexus Law) for the Respondent, Mrs Robbins

Hearing date: 8 th October 2013

Lord Justice Vos
1

This is an appeal against the order made by Edwards-Stuart J on 2 nd November 2012, whereby he awarded the Respondent, Mrs Josephine Robbins ("Mrs Robbins"), damages for nuisance and negligence in the sum of £150,081.48 against the Appellant, the London Borough of Bexley (the "Council"). The figure for damages was agreed between the parties.

2

The case has an unusual procedural history in that it was commenced in the Croydon County Court and transferred to the Technology and Construction Court (the "TCC") after 3 days of evidence had been heard. The continued hearing was then expedited and heard in February 201Edwards-Stuart J gave judgment on 16 th August 2012, having waited some time for the emergence of a seemingly relevant Court of Appeal decision in Berent v. Family Mosaic Housing [2012] EWHC Civ 961, which was handed down on 13 th July 2012 ("Berent").

3

Mrs Robbins is the owner of a semi-detached house with a part 2-storey and part single storey extension at the rear at 6 Radnor Avenue, Welling, Kent ("No 6"). To the East and rear of No 6 is Danson Park, owned by the Council. A row of poplar trees (the "poplars") ran roughly North/South behind the houses in Radnor Avenue, at a perpendicular distance of a little over 30 metres from the rear of the extensions to those properties. The judge found that roots emanating from two of these poplar trees known as "T1" and "T2" were responsible for causing damage to the foundations of No 6, by the well-known process of soil desiccation. In particular, he found that T2 (30.7 metres from No. 6) was the major contributor to the removal of moisture from the clay beneath the foundations of No 6, and that T1 (between 32 and 36 metres from No. 6) also made a material contribution to this extraction of moisture.

4

The Council appeals the judge's decision on 5 grounds to which I shall come in due course; but, in essence, it argues that, having made two clear findings, his decision that causation was made out cannot stand. The findings in question were:—

i) on the basis of current expert knowledge in 1998, it would have been reasonable for the Council to have undertaken a programme of cyclical reduction in the crowns of the poplars by 25% every 3 or 4 years from 1998; and

ii) if such a programme had been undertaken, it would not in fact have prevented the damage to No 6.

5

Mrs Robbins's response to this argument was to say that, following Bolitho v. City and Hackney Health Authority [1998] AC 232 (" Bolitho"), the correct causation question is not what should the defendant have done in order to fulfil its duty to the claimant, but what would the defendant have in fact done if it had fulfilled its duty to the claimant; and the judge actually found that, had the Council undertaken any programme of cyclical pruning (as it should have done), it would in fact have reduced the crowns of the poplars by an amount necessary to avoid the damage. Whether he in fact made such a finding is also in dispute before us.

6

Before coming to these issues, I shall set out as briefly as possible the main elements of the chronological background and the judge's findings.

Chronological background

7

In 1969, Mrs Robbins purchased No. 6.

8

In 1996/1997, a claim was made by the owners of No 10 Radnor Avenue in respect of damage caused to their property from 3 of the poplars, which were 33.2 metres, 35 metres and 34 metres respectively from it.

9

From early 1998 onwards, as the judge found, the Council knew that the poplars were capable of causing damage to any rear extension in Radnor Avenue that was within 35 metres of any of them.

10

In 1998, some work was apparently undertaken to reduce the crowns of the poplars. I shall return to the evidence on this point.

11

In summer 2003, damage was first sustained to the left (or North) end of the rear extension to No 6.

12

In May 2004, the Building Research Establishment's Horticulture LINK project 212, entitled " Controlling water use of trees to alleviate subsidence risk" ("Hortlink") was published by the Building Research Establishment. Hortlink concluded that, to reduce soil dessication caused by wild cherry and London plane trees, it was necessary to reduce crown volume by 70–90%, and that the duration of such a benefit was up to two years. The judge found that Hortlink was applicable to poplars, but that the Council could not be criticised for failing to take the results of Hortlink into account before at least mid-2005.

13

In July 2004, the Council issued a works order requiring a 25% crown reduction in the poplars to be completed by September 2004. The works order was not carried out.

14

In early 2005, the Council issued a further works order requiring a 25% crown reduction in the poplars to be completed by 30 th April 2005. The works order was again not carried out.

15

On 30 th March 2006, the Council's document entitled " Review of Trees and Woodlands" recommended that the Council " should maintain its current policy of undertaking inspections and programmed works across the borough on an approximately four-year cyclical programme".

16

In summer 2006, further damage was sustained to the left (or North) end of the rear extension to No 6.

17

In September 2006, the Council undertook a very severe crown reduction in the poplars, so as to remove the whole dynamic canopy and all leaf bearing shoots.

18

In summer 2007, No 6 suffered much less settlement as a result of the 2006 crown reduction works and higher rainfall in that year.

19

On 20 th May 2009, Mrs Robbins issued a claim form against the Council claiming damages for nuisance and/or negligence, and on 10 th September 2009, Mrs Robbins filed her Particulars of Claim again claiming damages for nuisance and/or negligence.

20

In 2011, the poplar trees were once again heavily pruned.

21

On 22 nd November 2011, HH Judge Ellis adjourned the trial to the TCC after 3 days of evidence.

22

On 16 th August 2012, Edwards-Stuart J delivered judgment holding the Council liable for the damage that occurred to No. 6 in both 2003 and 2006 and awarding damages in the total sum of £150,081.48 plus interest.

The judge's findings

23

As the oral argument developed, it became apparent that the parties disagreed as to precisely what findings the judge had made as to breach of duty. Accordingly, in respect of the breaches he found, I shall record the judge's exact words. In other respects, a summary will suffice as follows:—

i) The prevailing advice in 1998 was that crown reduction to prevent the risk of subsidence should take place every 3–4 years, subject to an upper limit of not removing more than 30% of the tree canopy or leaf area. The judge thought that this 30% figure referred to branch length.

ii) A reduction in overall branch length of at least 30% would be required to produce a reduction in the volume of the canopy of more than 70%.

iii) According to Hortlink, it was necessary to reduce crown volume by 70–90% to reduce soil desiccation, and the duration of such a benefit was only up to two years.

iv) By early 1998, it was reasonably foreseeable that the roots from the poplars could cause shrinkage in the soil up to 35 metres away, and that the rear extension of No 6 (which was less than 35 metres away from T1 and T2) was at real risk of subsidence.

v) T2 was the major contributor to the removal of moisture from the clay beneath the foundations of No. 6, and T1 also made a material contribution to this extraction of moisture (these findings applied by implication to 2003 as well as 2006).

vi) The extension to No 6 suffered damage as a result of seasonal volume changes in the subsoil caused by the extraction of moisture by vegetation in 2003 and 2006.

vii) T1 and T2 were pruned very severely in September 2006 so as to remove all the leaf bearing shoots.

viii) A crown reduction of 25% of branch length (amounting to less than 70% of crown volume) would not have had any significant influence on the moisture removal caused by the poplars.

ix) From early 1998 onwards, the Council " could reasonably have been expected to respond to its awareness of the foreseeable risk of damage being caused by the poplars" by embarking on a programme of cyclical crown reduction, and should have done so (paragraphs 146 and 162 of the judgment).

x) Sian Thomas, the Council's Tree and Woodland Technician noted in February 2007 that T2 was believed to have been crown reduced in 1998. The note suggests that the Council did not embark on any structured pruning of the poplars between 1998 and 2007. In October 2005, a vegetation survey undertaken by OCA, consultant arboriculturalists, recorded that poplars T1 and T2 had been " very heavily topped" in the past and had significant new growth that was more than 5 years old. The judge concluded that " [t]his suggests that the Council's belief that T2 had been crown reduced in 1998 was correct".

xi) Mr Mollison, an Environment Manager for the...

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