Siddiqui and Another v Council of London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | H.H. Judge Richard Seymour Q.C.: |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWHC 726 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-02227 |
| Date | 15 April 2003 |
[2003] EWHC 726 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St. Dunstan's House,
13-3137, Fetter Lane,
London, EC4A 1HD
His Honour Judge Richard Seymour Q.C.
Case No: HT-02227
Case No: HT-02366
Robert Stokell (instructed by Merricks for the Claimants in the Siddiqui action and instructed by BPE for the Claimant in the Sohanpal action)
Timothy Lord (instructed by Vizards Wyeth for the Defendant in both actions)
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Introduction
Laburnum Grove in Ruislip, Middlesex is a small development of residential properties undertaken in about 1980 or 1981 by a company called Matthew Homes Ltd. ("Matthew"). In this judgment I shall call that development "the Development". The Development was constructed on the site ("the Site") of a property formerly known as Bury Street Farm. It was common ground before me that the soil underlying the Site is predominantly London Clay. London Clay can include sand lenses, which are pockets of sand surrounded by clay. London Clay is susceptible to changes in volume as a result of the presence or absence of moisture. In laymen's terms, it shrinks in the absence of moisture, but swells, if below its natural moisture content, if made wet.
The Development involved the construction of thirteen houses and associated garages on thirteen plots. A road called Laburnum Grove was constructed to afford access to each of the plots. That road is a cul-de-sac. The plots laid out for the purposes of the Development were numbered consecutively from the South-West corner of the Site in a curve towards the North-West, round to the North- East and then back towards the South-West. At the North- East side of the Site, abutting the North- East boundary, three plots were laid out, respectively numbered 8, 9 and 10. In this judgment I shall refer to those plots, respectively, as "Plot 8", "Plot 9" and "Plot 10". Upon Plot 9 were constructed a house, to which I shall refer in this judgment as "House 9", and a garage, to which I shall refer in this judgment as "Garage 9". Upon Plot 10 were constructed a house, to which I shall refer in this judgment as "House 10", and a garage, to which I shall refer in this judgment as "Garage 10".
On the North- East side of Plot 8, Plot 9 and Plot 10 lay Ruislip Wood ("the Wood"). The Wood is an area of ancient woodland which has existed for many centuries. Its present extent is some 800 acres and it is apparently the largest area of unbroken woodland in London. The freehold owner of the Wood is the Council of the London Borough of Hillingdon ("the Council").
On the South- East Plot 10 abuts the curtilage of "The Plough" public house ("the Public House").
Mr. Moiz Siddiqui purchased Plot 9 in about October 1981 immediately after the construction of House 9 and Garage 9. He purchased the property in his sole name, but on 1 September 1982 he transferred the freehold title to his wife, Ishrat, and she remains the freehold owner of Plot 9.
Mr. Bhajan Sohanpal purchased Plot 10 in 1986 and he is the freehold owner of that property.
On a number of occasions over the years, starting in fact soon after Mr. and Mrs. Siddiqui moved into House 9, they noticed cracks in the structure. It will be necessary to consider the history of damage to House 9, and, indeed, to Garage 9, in some detail, but at this stage it is sufficient to record that on three occasions, respectively in 1988, 1992 and in 1999, significant work was undertaken with the aim of remedying the causes and symptoms of the apparent defects in House 9. The action brought by Mr. and Mrs. Siddiqui against the Council ("the Siddiqui Action") was in respect of the works undertaken in 1999. In short what was said was that the necessity for the works undertaken in 1999 arose as a result of the action of the roots of oak trees in the Wood causing subsidence of the soil under House 9 and Garage 9 and consequent damage. That action of the trees roots was said to amount to a nuisance for which the Council was in law liable to Mr. and Mrs. Siddiqui.
It does not appear that House 10 suffered from any structural problems until some time in 1995. However, damage was noticed in 1996 by Mr. Sohanpal and works were undertaken to remedy that damage in 199The cause of the damage which necessitated the undertaking of those works was again said to be the action of the roots of oak trees in the Wood resulting in subsidence of the soil under House 10. In the action brought by Mr. Sohanpal against the Council ("the Sohanpal Action") Mr. Sohanpal sought recovery from the Council of the cost of the works undertaken in 1998, again on the ground that the alleged action of the tree roots was in law a nuisance for which the Council was responsible.
Because of the possibility of common questions of fact arising in both the Siddiqui Action and the Sohanpal Action I ordered that the two actions should be tried together.
The Council disputed liability both in the Siddiqui Action and in the Sohanpal Action. In essence it contended that the probable cause of the damage of which complaint was made in each case was heave of the underlying soil, not subsidence, and thus not the result of any encroachment of tree roots from the Wood. However, it was strongly urged upon me by Mr. Timothy Lord, who appeared on behalf of the Council, that it was not for the Council positively to prove any cause of any damage. Rather it was for the Claimants in each action to prove positively that the cause of the damage of which they respectively complained was the action of roots of trees in the Wood. In support of that submission, which seems to me to be self-evidently correct, Mr. Lord reminded me of the decision of the House of Lords in The Popi M [1985] 2 All ER 712, a case in which the issue was whether the sinking of a ship had been caused by a "peril of the seas", and was thus covered by insurance. The only substantive speech was that of Lord Brandon of Oakbrook. At page 714E-G he said:-
"In approaching this question [whether the trial judge and the Court of Appeal had been justified in drawing the inference that the cause of the loss of the vessel was a peril of the seas] it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the seas is and remains throughout on the shipowners. Although it is open to the underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them."
It was also contended on behalf of the Council that, if the cause of the damage complained of in the Siddiqui Action or of that complained of in the Sohanpal Action was the action of roots of trees in the Wood, it was not reasonably foreseeable that the roots of the relevant trees would cause the damage. It was further contended that in any event the Council should have been afforded an opportunity in each case, which it was not, to abate the nuisance. I shall return to these contentions later in this judgment.
Quantum was agreed, subject to liability, in both actions. In the Siddiqui Action the agreed cost of remedial works was £110,000, of which £200 —£300 was agreed to be referable to repairs to Garage 9, and it was agreed that a sum of £500 should be paid, if liability was established, in respect of general damages. In the Sohanpal Action the agreed cost of remedial works was £98,445, and again it was agreed that a sum of £500 should be paid, if liability was established, in respect of general damages.
The mechanisms of subsidence and heave
It was common ground before me that in a case in which subsidence has been caused by the action of tree roots what happens is that tiny, hair-like roots growing out from, and usually at the end of, more substantial fibrous roots, extract moisture from the soil. As that happens a soil susceptible to alteration in volume as a result of the abstraction of water, such as London Clay, will shrink. That shrinkage will reduce the support which the soil provides to structures built upon it, and that reduction in support may cause the whole, or part, of the structure to sink. Differential sinking typically causes damage to a structure. As the whole process is dependent upon the abstraction of water by tree roots, in the case of deciduous trees it can only happen during the growing season. In Southern England the growing season is typically from about April to about September. The process of abstraction of water by tree roots, if it is to affect the stability of the soil as a support for structures, must cause a reduction in volume, which in a clay soil can occur by a reduction in moisture content – essentially drying out the soil. That process is technically called "desiccation". Unless desiccation has occurred the cause of damage to a structure built upon a clay soil cannot be the extraction of water by tree roots.
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