London Borough of Islington v Elliott & Anor

Factual and Procedural Background

This appeal arises from an order made by Judge Mitchell in the Clerkenwell and Shoreditch County Court concerning costs in a nuisance claim involving the London Borough of Islington ("the Council") as defendant and adjoining property owners as claimants. The claimants sought a quia timet injunction to compel the Council to remove Ash trees from the garden of a Council-owned property ("Number 47") on the basis that the tree roots constituted an actual or potential nuisance to their adjoining property ("Number 49"). The Council confirmed a works order had been issued to remove the trees in December 2008, and the trees were removed in June 2009. The parties could not agree on costs, leading the judge to trial the issue to determine the appropriate costs order.

Number 47 was let on short-term tenancies and its garden was poorly maintained, with several Ash saplings and small trees growing unchecked near the boundary with Number 49. The claimants had repeatedly complained since 2004 about the trees' growth, potential foundation damage, and obstruction of light. Despite assurances and some correspondence, the Council failed to take timely action. Expert evidence indicated the trees were unsuitable for such a small garden and that, although no physical damage had yet occurred, damage was likely to occur within a few years if the trees were not removed or pruned.

The claimants' solicitors repeatedly requested the Council to act, warning that proceedings for an injunction would be issued if the trees were not dealt with. The Council delayed inspections and required the claimants to provide root samples to substantiate damage claims. Eventually, a works order was issued in December 2008, but removal was delayed until June 2009. Proceedings were issued in March 2009 seeking damages and an injunction. The Council denied nuisance and claimed the works order had been issued. After the trees' removal, the parties attempted settlement, but disagreement over costs led to a trial and subsequent appeal focusing on the necessity of the injunction and the costs order.

Legal Issues Presented

1. Whether a quia timet injunction can be granted to prevent nuisance where no actual physical damage has yet occurred but is likely to occur in the future.
2. The degree of imminence and likelihood of damage required before the court will grant such an injunction.
3. The proper exercise of discretion regarding costs where the injunction was granted but the defendant had issued a works order to remove the nuisance-causing trees.

Arguments of the Parties

Appellant's Arguments (The Council)

• The injunction was premature because no damage was likely to occur within three years, so there was no imminent danger justifying quia timet relief.
• The Council had issued a works order to remove the trees prior to trial and intended to carry out the work, negating the necessity for an injunction.
• The claimants should have written a further letter before action after assurances that works were in progress, which might have avoided proceedings.

Appellees' Arguments (The Claimants)

• The evidence showed a real and substantial risk of damage in the short to medium term if the trees were not removed.
• Damages would not be an adequate remedy for the anticipated harm, justifying the grant of a quia timet injunction.
• The Council's history of delay, misleading information, and failure to act reasonably justified the claimants commencing proceedings when they did.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the legal principles governing quia timet injunctions, reiterating the requirement that the claimant must prove the risk of damage is both real and imminent, and that the damage would be substantial and irreparable. The court reviewed expert evidence which acknowledged uncertainties about the soil, foundations, and growth patterns of the trees, but agreed that damage to the claimants' property was likely in the medium term absent intervention.

However, the court found that the Council had resolved to remove the trees by issuing a works order in December 2008 and had actually removed them by June 2009, demonstrating an intention and action to abate the nuisance. This fact undermined the necessity of granting a quia timet injunction at trial.

The judge had concluded that the claimants would have succeeded in obtaining the injunction if the work had not been done, but the appellate court disagreed, holding that the existence of the works order and the Council's intention to act negated the need for injunction relief. The court further considered the conduct of the parties regarding correspondence and found that the claimants should have issued a formal letter before action closer to the trial date to clarify the Council's position and potentially avoid litigation.

Regarding costs, the court recognized the Council's earlier failures to act reasonably and misleading communications, but concluded that from the time the defence was served (acknowledging the works order), the claim was bound to fail. Therefore, the Council was entitled to costs from that point onward. The court adjusted the costs order accordingly, removing the partial costs awarded for the period immediately preceding the claim and ordering no costs for the earlier period.

Holding and Implications

The court ALLOWED THE APPEAL, overturning the costs order made by the lower court.

The final order was that there should be no order as to costs up to and including the service of the defence, but the Council was entitled to its costs of the action from the date of service of the defence onwards. This decision clarifies that where a defendant has taken clear steps to abate a potential nuisance before trial, a quia timet injunction is unnecessary and costs should follow the event accordingly. No new legal precedent was established beyond reaffirming established principles concerning the imminence and necessity for quia timet injunctions and the proper exercise of discretion on costs.