London Borough of Islington v Margaret Elliott and Another (Respondents/Claimants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Rafferty,Lord Justice Longmore |
| Judgment Date | 01 February 2012 |
| Neutral Citation | [2012] EWCA Civ 56 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2011/0755 |
| Date | 01 February 2012 |
[2012] EWCA Civ 56
Lord Justice Longmore
Lord Justice Patten
and
Lady Justice Rafferty
Case No: B2/2011/0755
9EC02371
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CLERKENWELL AND SHOREDITCH COUNTY COURT
His Honour Judge Mitchell
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr S Butler (instructed by Legal Services) for the Appellants
Mr R. Duddridge (instructed by Bishop & Sewell LLP) for the Respondents
Hearing date : 5 th December 2011
Introduction
This is an appeal by the London Borough of Islington ("the Council") with the leave of the court against an order of His Honour Judge Mitchell made in the Clerkenwell and Shoreditch County Court on 14 th February 2011. The judge ordered the Council, which was the defendant in the action, to pay to the claimants their costs of the claim up to 6 th March 2009; one half of their costs from 7 th March up to and including 20 th March 2009; and the whole of their costs thereafter.
The appeal is therefore one against an order for costs but in substance it is a challenge to the way in which the judge assessed the claimants' prospects of success in relation to the grant of a quia timet injunction which they had sought in the proceedings in order to compel the Council to remove a number of Ash trees from the garden of a property at 47, Balfour Road, London N5 ("Number 47") of which the Council is the freehold owner. The basis of the claim was an allegation that the roots of the trees constituted an actual or potential nuisance to the claimants' adjoining property at 49 Balfour Road ("Number 49") but in its defence (served on 28 th April 2009) the Council confirmed that a works order to remove the trees had been issued to its contractors on 10 th December 2008 and on 23 rd June 2009 the trees were actually removed.
The action continued only because the parties were unable to resolve their differences about costs and the judge had the unenviable task of having to try the action in order to decide what costs order to make. Although lamentable, this proved to be unavoidable and neither party to this appeal has suggested that the judge was wrong in principle to take this course as opposed to resolving the issue on a summary basis. The issue of principle which the judge had therefore to consider and which justified the grant of permission to appeal in this case is whether a claim to a quia timet injunction to prevent a nuisance can succeed when the alleged nuisance (in this case the tree roots) has at the date of the trial caused no physical damage to the claimants' property but is likely ultimately to do so unless prevented by an order of the court. In short, the question is how proximate and likely does the occurrence of physical damage have to be before the court will intervene.
The facts
Number 47 is owned by the Council and is let to tenants on short-term tenancies. The contemporary photographs show that the gardens were not well maintained and that a number of saplings and small trees had been allowed to grow unchecked. The judge found that there were six Ash trees in the rear garden and about three in the front. One of the Ash trees in the rear garden was about one metre from the boundary fence with number 49 and some two metres from the rear wall of that house. When a plan was prepared in October 2008 this tree was already four metres in height with a girth of 150 mm. One of the Ash trees in the front garden was about four metres away from the front wall of Number 49; was four to five metres in height and had a girth of between 150 and 200 mm. All these trees were self-sown. It was also the view of the expert witnesses called to give evidence that Ash trees are unsuitable (due to their size and rate of growth) for planting in a small garden of this kind.
In May 2004 Ms Elliott wrote to the Council expressing concern that the trees growing in the garden of Number 47 might undermine the foundations of her house if allowed to grow unchecked. The Council appear to have written to its tenant about this but no further action was taken. In October 2004 Ms Elliott wrote again to complain that the trees had grown by several feet and were now obstructing the light to her first floor windows. This was followed by further correspondence in January and November 2005 all directed to the rate of growth of the trees. It was made clear to the Council that the tenants of Number 47 made minimal use of the garden and had taken no steps to cut back or remove the trees. It was therefore clear that the Council would have to take responsibility for this.
By November 2006 the position remained unchanged but on 13 th November an officer in the Tenancy Management section wrote to the claimants' ward councillor saying that instructions had been given to deal with the problem but that, due to an oversight, nothing had been done. However, she assured the councillor that the matter would now be dealt with promptly.
Again this proved to be a false hope because by September 2007 no steps had been taken to reduce the size of the trees or to remove them. The claimants, who by now were understandably exasperated by the lack of progress, instructed solicitors (Messrs Bishops & Sewell LLP) and they wrote to the Council on 11 th September 2007 about the problems emanating from Number 47. The first was water penetration which was thought to be due to a problem with the kitchen or a shower unit at Number 47. This is unconnected to the second problem which was the trees. They said in the letter that the overhanging branches were now blocking out the light to Number 49 and that the roots "may be causing damage to [the claimants'] property".
The Council was asked to take steps to remedy these problems failing which the claimants would have no alternative but to institute proceedings. This did provoke a response from the Council. An officer wrote on 28 th September asking for more information about the water leak but said that the Council had no obligation to maintain the gardens on behalf of the tenants. It would, however, arrange for Greenspace (a division of the Council's Environmental and Conservation Department) to carry out an inspection of the overhanging branches to decide whether further action needed to be taken. This might, however, take some time due to lack of resources.
In relation to the tree roots, the letter stated that it would be necessary for root samples to be taken:
"so it can conclusively be determined that the trees are in fact the cause of any damage ….. As your clients are making these claims then the onus is on them to provide any report".
It looks as if this letter may not have been received by the claimants' solicitors because they wrote again on 28 th November repeating their complaints about the tree roots and saying that there were signs of cracking in the concrete patio at the rear of Number 49 which might be attributable to the tree roots. The Council replied on 17 th December and explained that due to a change in the tenants of Number 47 and associated problems of access, an inspection by Greenspace would not take place until the New Year. It would, however, still be necessary for the root samples to be taken to establish any alleged encroachment by the trees. This would be a matter for the claimants to arrange.
In these circumstances, the claimants instructed Mr George Mathieson, a civil engineer, to inspect their property and report. He did so early in 2008 and wrote a letter of advice to the claimants dated 12 th March 2008 setting out his preliminary findings. He explained that due to their high water demand, trees such as the Ash should not be planted within 15–20 m from the nearest house and should be regularly pruned. His letter went on:
"While the Ash saplings in the garden bordering onto yours have not yet caused any damage to your property, they need to be dealt with as a matter of urgency so as to prevent them from causing inevitable damage in the short to medium term."
The claimants' solicitors wrote to the Council on 18 th March 2008 saying that the damp problem was continuing and, that in relation to the trees, Mr Mathieson had advised that there was an urgent need to deal with the Ash saplings adjacent to Number 49. They asked for the work to be carried out in four weeks without the need for an application to be made for an injunction. The letter of advice from Mr Mathieson was forwarded to the Council on 7 th April together with recommendations from a builder as to how to deal with the damp problem.
In the meantime, the Council had written to Bishop & Sewell on 3 rd April stating that Greenspace had taken soil samples from the Ash tree near the fence and their comments were awaited. On 23 rd April the Council wrote a further letter to the claimants' solicitors which indicated that they should direct their complaints about the trees to Greenspace who were responsible for deciding whether trees in the Borough should be lopped or removed. Accordingly on 1 st May the solicitors did just that. They sent a copy of Mr Mathieson's letter to Greenspace and asked to be informed about the results of the soil samples taken. They also asked for an undertaking that the Ash trees would be removed and the other trees kept regularly pruned.
The reply from Mr James Chambers, the Council's Senior Tree Officer, was not encouraging and also disclosed a state of internal confusion about who (if anybody) had been instructed to deal with the tree issue on behalf...
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