Factual and Procedural Background
This appeal concerns an order made by Edwards-Stuart J on 2nd November 2012, awarding damages of £150,081.48 for nuisance and negligence to the Respondent, Mrs Robbins, against the Appellant, the London Borough Council. The damages figure was agreed between the parties.
The case originated in the Croydon County Court but was transferred to the Technology and Construction Court (TCC) after three days of evidence. The hearing continued and was expedited in February 2012, with judgment delivered on 16th August 2012.
The dispute arises from damage caused to a semi-detached house owned by Mrs Robbins at No 6 Radnor Avenue, Welling, Kent, adjacent to a public park owned by the Council. A row of poplar trees stood approximately 30 metres from the rear extensions of the houses. The judge found that roots from two specific poplars caused damage to the foundations of No 6 by soil desiccation, with one tree (T2) being the major contributor and the other (T1) also materially contributing.
The Council appealed on five grounds, essentially arguing that the judge's findings on causation were inconsistent with his findings on the adequacy and effect of cyclical pruning programs that could have been undertaken from 1998 onwards.
The procedural history includes an initial claim by owners of a neighboring property in 1996/1997, the Council’s knowledge from early 1998 of the risk posed by the poplars, various incomplete or unexecuted crown reduction works orders between 1998 and 2006, and the eventual severe pruning in September 2006. Damage was first sustained in summer 2003 and again in summer 2006. The claim form was issued in May 2009, and the trial was adjourned to the TCC after three days of evidence in November 2011.
Legal Issues Presented
- Whether the Council was liable for damages caused by the poplar trees’ roots to the Respondent’s property for damage sustained in 2003 and 2006.
- Whether the Council’s failure to implement a cyclical crown reduction program from 1998 constituted a breach of duty causing the damage.
- Whether the judge erred in applying the correct causation test, particularly regarding the hypothetical actions the Council would have taken if it had fulfilled its duty.
- Whether the judge wrongly reversed the burden of proof concerning causation.
- Whether the judge was correct in inferring the extent of pruning that would have been undertaken by the Council had it acted reasonably.
Arguments of the Parties
Appellant's Arguments
- The Council contended that the judge’s findings that a 25% crown reduction every 3-4 years was reasonable but ineffective in preventing damage meant that the breach of duty did not cause the damage.
- The judge erred in comparing the actual damage with what would have happened if a very severe pruning had been undertaken, rather than with what would have happened if the Council had fulfilled its minimum duty (a 25% crown reduction).
- The judge wrongly inferred that contractors would have exceeded their instructions and performed very severe pruning rather than the 25% reduction ordered.
- The judge improperly reversed the burden of proof, requiring the Council to prove that the damage would have occurred even if reasonable care had been taken.
- The judge was wrong to hold that the 2003 damage would have been avoided by a 3 or 4 yearly 25% reduction starting in 1998.
Respondent's Arguments
- The Respondent argued that under the Bolitho principle, the correct causation question is what the defendant would have done if it had fulfilled its duty, rather than what it should have done.
- The judge correctly found that had the Council undertaken a cyclical pruning program, it would have performed severe reductions sufficient to prevent the damage.
- The judge could and should have found that the poplar tree T2 was heavily pruned in 1998 and in 2011, supporting the inference that the Council would have done more than a minimal 25% crown reduction.
- The Respondent initially argued that the Council should have undertaken very severe reductions in accordance with Hortlink guidance between mid-2005 and early 2006, but this point was not pressed at appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bolitho v. City and Hackney Health Authority [1998] AC 232 |
Clarification of causation in negligence cases involving omissions; distinguishing between what the defendant should have done and what the defendant would have done. |
The court applied Bolitho to hold that the correct causation question was what the Council would have done if it had fulfilled its duty, supporting the judge’s approach over the Council’s argument. |
| Beary v. Pall Mall Investments [2005] EWCA Civ 415 |
Limits on the application of the Bolitho principle; causation where breach of duty does not cause loss if the claimant would not have acted differently. |
The court distinguished Beary as inapplicable because in this case the breach was a failure to act, requiring inquiry into what would have happened if the duty had been fulfilled. |
| Phethean-Hubble v. Coles [2012] EWCA Civ 349 |
Burden of proof in causation; whether defendant must prove damage would have occurred despite reasonable care. |
The court found the principle in Phethean-Hubble did not apply to this case and declined to express a definitive view on the burden of proof issue. |
| Solloway v. Hampshire County Council [1981] 79 LGR 449 |
Scope and nature of duty in nuisance; duty to take reasonable steps to prevent or minimize foreseeable damage. |
Referenced to support the equivalence of nuisance and negligence principles in this context. |
| Leakey v. National Trust [1980] 1 QB 485 |
Explanation of the duty to prevent or minimize known risk of damage; reasonableness standard. |
Used to explain the duty owed by the Council towards the Respondent’s property. |
| Delaware Mansions Limited v. Westminster City Council [2002] 1 AC 321 |
Negligence and nuisance are labels of no real significance; focus on the content of the neighbour's duty. |
Supported the court’s approach treating nuisance and negligence claims equivalently in this case. |
Court's Reasoning and Analysis
The court began by identifying the nature of the Council’s duty as one to take reasonable steps to prevent damage from the poplar roots to the Respondent’s property from 1998 onwards. The duty was not defined narrowly as a specific pruning regime but broadly as reasonable preventative action.
The judge’s findings that the Council breached this duty by failing to implement any cyclical pruning program were not challenged. The Council’s failure to act at all, rather than the particular pruning method, was the breach.
The Council’s argument that the breach did not cause the damage because a 25% pruning would not have prevented damage was rejected. The court held this argument irrelevant because the judge found the Council did nothing between 1998 and 2006, which caused the damage.
The court applied the Bolitho principle to causation, concluding that where the breach is a failure to act, the correct question is what the defendant would have done if it had fulfilled its duty, not simply what it should have done. The judge was justified in finding that the Council would likely have undertaken severe pruning, similar to that done in 2006, had it complied with its duty.
The court rejected the Council’s submission that the judge wrongly inferred contractors would exceed instructions on pruning severity, finding the inference supported by evidence of prior heavy pruning and the 2006 works.
Regarding the burden of proof on causation, the court declined to decide definitively but held that the judge was entitled to find causation on the facts.
The court also addressed the equivalence of nuisance and negligence principles in this context, noting the parties agreed the law was the same, and the court treated the claim as negligence.
Holding and Implications
The court DISMISSED THE APPEAL, upholding the judge’s decision that the Council was liable for damages caused by the poplar trees’ roots to the Respondent’s property.
The direct effect of the decision is that the Council remains liable for the damage and must pay the agreed damages sum. The court confirmed the application of the Bolitho causation approach in cases of omission and clarified the scope of duty and breach in relation to cyclical pruning obligations.
No new precedent was established beyond the application of existing principles to the facts of this case.