Marc Christopher Davies v Bridgend County Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Birss,Lord Justice Snowden,Lord Justice Baker |
| Judgment Date | 03 February 2023 |
| Neutral Citation | [2023] EWCA Civ 80 |
| Docket Number | Case No: CA-2022-001604 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 80
Lord Justice Baker
Lord Justice Birss
and
Lord Justice Snowden
Case No: CA-2022-001604
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the COUNTY COURT at SWANSEA
HIS HONOUR JUDGE BEARD Appeal No. SA27/2021
On appeal from DJ Fouracre Case No G23YJ064
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Carter (instructed by High Street Solicitors Limited) for the Appellant
Matthew White (instructed by Dolmans Solicitors) for the Respondent
Hearing dates: 17 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 3 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This case is about the role played by diminution in value in cases of nuisance involving the plant Japanese knotweed (“knotweed”). The appellant Mr Davies owns a property in Nant-y-moel, Bridgend, Wales at 10 Dinam Street. It adjoins land owned by the local council, the respondent. There is knotweed growing on the respondent's land. The knotweed encroached from the respondent's land into the appellant's land.
The appellant brought a claim in nuisance against the respondent. The claim was heard by DJ Fouracre in Swansea County Court with judgment given on 8 th November 2021.
The District Judge found that the stand of knotweed on the respondent's land seemed to have been present for over 50 years. In 2004 the appellant bought the property at 10 Dinam Street as an investment. It is rented out. The District Judge found that it was likely that knotweed had spread from the respondent's land into the appellant's land before 2004.
In 2012 a RICS report on knotweed was published, describing the difficulties it can cause. It is fair to point out that more recently the 2012 RICS report was withdrawn and the RICS now says that knotweed is not the “bogey plant” it was once thought to be. Nevertheless neither side before us contended that this means knotweed is not capable of founding a claim in nuisance.
The appellant became concerned about knotweed in 2017. He raised it with the respondent in 2019.
The District Judge found that the respondent was in breach of the relevant duty in nuisance owed to the appellant as a neighbour, starting from 2013 and on until 2018 when a reasonable and effective treatment programme finally started. There has been no appeal from this conclusion about breach from 2013–2018.
The respondent contended that since the knotweed was already present on the appellant's land, any damage arose before the breach of duty and so, since the fact the property is affected by knotweed is not due to any breach, the claim was fatally flawed on causation. The District Judge rejected this argument (paragraph 24), holding that it was answered by the fact that there was a continuing nuisance and breach of duty as a result of persisting encroachment. While the initial encroachment was historic, any loss suffered by the appellant in principle continues and will accrue by the continuation of the breach in the respondent's failing to treat the knotweed. The judge also held (paragraph 27) that unless and until the respondent treated the knotweed on its land, any attempt by the appellant to eradicate knotweed on his own land would have been rendered futile.
Turning to damages, all the sums claimed were characterised as aspects of a diminution in the value of the appellant's property. The damages originally claimed were under various heads including a sum for the cost of treatment, a sum for disturbance and inconvenience, and other sums. The only head of damages left is a claim for £4,900 as what is sometimes called the “residual” diminution in value of the property, also called “blight”, remaining even after the knotweed has been treated as best it can be. All the other heads have been dropped over the course of these proceedings for various reasons, or they failed and were not appealed.
The District Judge held that all the diminution in value damages were irrecoverable in law in a case like this, based on the decision of the Court of Appeal in Williams v National Rail [2018] EWCA Civ 1514, [2019] QB 601 (Sir Terence Etherton MR, Sharp and Legatt LJJ). Therefore the District Judge dismissed the claim.
On appeal, the main point was on diminution in value. The appellant claimed that the damages were losses consequential on the nuisance found. The Circuit Judge HHJ Beard dismissed the appeal on 27 May 2022. He accepted that the diminution in value claimed was consequential on the nuisance identified by the court below, but held that Williams was authority for the proposition that damages for diminution in value due to knotweed are irrecoverable in nuisance. As the Circuit Judge put it at paragraph 19:
“The only actual damage in this case, which is not physical, is diminution in value. However I consider Williams is authority that such economic damage is not recoverable. The phrase “the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset” could not be clearer. I accept [counsel for the appellant's] argument that this is damage leading to a loss which is consequential on the nuisance found. However, it is not recoverable damage, it is pure economic loss.”
The Circuit Judge also rejected the appeal on causation (paragraph 22).
The appellant applied for permission to bring a second appeal and Arnold LJ gave permission because the point of principle about recoverability was important, not least given the number of knotweed cases.
As the sole ground of appeal the appellant contends the judges below have erred in that they have misunderstood Williams, whereas, properly understood, Williams is not an authority against the appellant's case. The respondent contends the judgments below are right, and also advances two points by a respondent's notice: one is a challenge to the causation point which it has lost up to now, and the other is a submission about the quality of the appellant's evidence of diminution in value itself.
Before going further, I note that what is in issue in terms of damages here is £4,900. If that was all that was at stake, the proportionality of these proceedings having got this far would be questionable, but the principle is an important one, and no doubt (sadly) the costs are substantial.
The appeal – recoverability of diminution in value
Williams was an appeal concerning two properties in Maesteg, South Wales which were tried together. The claimants (Mr Williams and Mr Waistel) had brought a claim in nuisance against Network Rail Infrastructure Ltd (“NR”) the proprietor of neighbouring land. Broadly speaking, the claimants won both at first instance and on the appeal. Notably for what follows, the damages awarded to the claimants included various items but one was damages for the residual diminution in value of the land (or stigma). These were summarised at paragraph 35 in the judgment in the Court of Appeal as follows:
“35. The Recorder then addressed damages for the diminution in value of the claimants' properties arising from interference with their quiet enjoyment of their land. The Recorder held that, given that the claimants were entitled to recover damages to treat the knotweed in order to remove the nuisance, the appropriate diminution in value was the residual diminution in value once the treatment was completed. The Recorder held (at [243]–[259]) that Mr Williams was entitled to £10,500 and Mr Waistell was entitled to £10,000 for that reason.”
Before the Recorder at first instance the claims in Williams had been examined in two ways: a first basis looking at the knotweed encroaching onto the claimant's land from NR's land, and a second basis looking at the presence of knotweed on the NR's land itself. The results were:
i) On the first basis, characterised as an encroachment claim, there was no tort of nuisance because while knotweed had encroached onto the claimant's land from NR's land, and was not trivial (paragraph 53), nevertheless that knotweed on the claimant's land had caused no actual physical damage. The existence of physical damage was a necessary element of the tort put this way and so the claim put that way failed (see paragraphs 19 to 21). The fact the presence of the knotweed had resulted in a diminution in value of the properties did not constitute damage.
ii) On the second basis, characterised as a quiet enjoyment/loss of amenity claim, the tort was made out because the presence of knotweed on NR's land was a sufficiently serious interference with the claimants' right of quiet enjoyment/ amenity value of their properties to constitute an actionable nuisance. The recorder found that a landowner in the claimants' position would suffer a loss of enjoyment. He considered that the diminution in value of the properties, combined with the fact that any owner would have to live with the concerns and adverse consequences of a devalued property, is properly characterised as an aspect of the amenity of the land protected by the tort of private nuisance.
Before the Court of Appeal there was an appeal by NR and a respondent's notice by the claimants. The appeal was to challenge the second basis of the claim.
The leading judgment in the Court of Appeal was given by Etherton MR. It starts with a number of general principles (paragraphs 38–45). The section repays reading in full and in this brief summary I am not intending to say anything different.
The first principle identified is that private nuisance is a violation of real property rights, which means either interference with the legal rights of an owner or interference with the amenity of the land, that is to say the right to use and...
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