TORT

Nuisance - tree root damage to property commencing prior to acquisition by claimant - cost of remedial work recoverableDelaware Mansions Ltd v Westminster City Council: HL (Lord Steyn, Lord Browne-Wilkinson, Lord Cooke of Thorndon, Lord Clyde and Lord Hutton): 25 October 2001A company purchased a property in 1990 which had cracks in its walls caused by the encroachment of roots from a tree on the pavement.

After the highway authority refused the company's request to remove the tree, the company was advised to insert piling.

It sued the highway authority for damages in nuisance to recover the cost.

The judge held that the cost of the remedial work undertaken by the company had been properly and reasonably incurred, but dismissed the claim on the ground that since the damage to the property had occurred in 1989 only the previous owners could bring a claim.

The Court of Appeal reversed the judge's decision.

The highway authority appealed.Richard Mawrey QC and Adrian Cooper (instructed by Vizard Oldham) for the highway authority.

Michael Pooles QC and Simon Wilton (instructed by Beachcroft Wansbroughs) for the company.Held, dismissing the appeal, that although there had been no further cracking in the walls of the property during the company's ownership the encroachment of the roots had caused continuing damage to the land by dehydrating the soil, and damage consisting of impairment of the load-bearing qualities of residential land was itself a nuisance; that if the owners of a tree had been given notice that it was causing damage and an opportunity of avoiding further damage by removing the tree but elected to preserve it they could fairly be expected to bear the cost of reasonably necessary remedial works, and the party on whom the cost had fallen might recover it even though there might be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future; and that, accordingly, since the highway authority had been given ample notice of the damage but had elected to preserve the tree it was liable for the cost of the remedial work.

(WLR)