London Borough of Islington v Elliott & Anor

This is an appeal by the London Borough of Islington (“the Council”) with the leave of the court against an order of His Honour Judge Mitchell made in the Clerkenwell and Shoreditch County Court on 14^th February 2011. The judge ordered the Council, which was the defendant in the action, to pay to the claimants their costs of the claim up to 6^th March 2009; one half of their costs from 7^th March up to and including 20^th March 2009; and the whole of their costs thereafter.

The appeal is therefore one against an order for costs but in substance it is a challenge to the way in which the judge assessed the claimants’ prospects of success in relation to the grant of a quia timet injunction which they had sought in the proceedings in order to compel the Council to remove a number of Ash trees from the garden of a property at 47, Balfour Road, London N5 (“Number 47”) of which the Council is the freehold owner. The basis of the claim was an allegation that the roots of the trees constituted an actual or potential nuisance to the claimants’ adjoining property at 49 Balfour Road (“Number 49”) but in its defence (served on 28^th April 2009) the Council confirmed that a works order to remove the trees had been issued to its contractors on 10^th December 2008 and on 23^rd June 2009 the trees were actually removed.

The action continued only because the parties were unable to resolve their differences about costs and the judge had the unenviable task of having to try the action in order to decide what costs order to make. Although lamentable, this proved to be unavoidable and neither party to this appeal has suggested that the judge was wrong in principle to take this course as opposed to resolving the issue on a summary basis. The issue of principle which the judge had therefore to consider and which justified the grant of permission to appeal in this case is whether a claim to a quia timet injunction to prevent a nuisance can succeed when the alleged nuisance (in this case the tree roots) has at the date of the trial caused no physical damage to the claimants’ property but is likely ultimately to do so unless prevented by an order of the court. In short, the question is how proximate and likely does the occurrence of physical damage have to be before the court will intervene.

Number 47 is owned by the Council and is let to tenants on short-term tenancies. The contemporary photographs show that the gardens were not well maintained and that a number of saplings and small trees had been allowed to grow unchecked. The judge found that there were six Ash trees in the rear garden and about three in the front. One of the Ash trees in the rear garden was about one metre from the boundary fence with number 49 and some two metres from the rear wall of that house. When a plan was prepared in October 2008 this tree was already four metres in height with a girth of 150 mm. One of the Ash trees in the front garden was about four metres away from the front wall of Number 49; was four to five metres in height and had a girth of between 150 and 200 mm. All these trees were self-sown. It was also the view of the expert witnesses called to give evidence that Ash trees are unsuitable (due to their size and rate of growth) for planting in a small garden of this kind.

In May 2004 Ms Elliott wrote to the Council expressing concern that the trees growing in the garden of Number 47 might undermine the foundations of her house if allowed to grow unchecked. The Council appear to have written to its tenant about this but no further action was taken. In October 2004 Ms Elliott wrote again to complain that the trees had grown by several feet and were now obstructing the light to her first floor windows. This was followed by further correspondence in January and November 2005 all directed to the rate of growth of the trees. It was made clear to the Council that the tenants of Number 47 made minimal use of the garden and had taken no steps to cut back or remove the trees. It was therefore clear that the Council would have to take responsibility for this.

By November 2006 the position remained unchanged but on 13^th November an officer in the Tenancy Management section wrote to the claimants’ ward councillor saying that instructions had been given to deal with the problem but that, due to an oversight, nothing had been done. However, she assured the councillor that the matter would now be dealt with promptly.

Again this proved to be a false hope because by September 2007 no steps had been taken to reduce the size of the trees or to remove them. The claimants, who by now were understandably exasperated by the lack of progress, instructed solicitors (Messrs Bishops & Sewell LLP) and they wrote to the Council on 11^th September 2007 about the problems emanating from Number 47. The first was water penetration which was thought to be due to a problem with the kitchen or a shower unit at Number 47. This is unconnected to the second problem which was the trees. They said in the letter that the overhanging branches were now blocking out the light to Number 49 and that the roots “may be causing damage to [the claimants’] property”.

The Council was asked to take steps to remedy these problems failing which the claimants would have no alternative but to institute proceedings. This did provoke a response from the Council. An officer wrote on 28^th September asking for more information about the water leak but said that the Council had no obligation to maintain the gardens on behalf of the tenants. It would, however, arrange for Greenspace (a division of the Council’s Environmental and Conservation Department) to carry out an inspection of the overhanging branches to decide whether further action needed to be taken. This might, however, take some time due to lack of resources.

In relation to the tree roots, the letter stated that it would be necessary for root samples to be taken:

“so it can conclusively be determined that the trees are in fact the cause of any damage ….. As your clients are making these claims then the onus is on them to provide any report”.

It looks as if this letter may not have been received by the claimants’ solicitors because they wrote again on 28^th November repeating their complaints about the tree roots and saying that there were signs of cracking in the concrete patio at the rear of Number 49 which might be attributable to the tree roots. The Council replied on 17^th December and explained that due to a change in the tenants of Number 47 and associated problems of access, an inspection by Greenspace would not take place until the New Year. It would, however, still be necessary for the root samples to be taken to establish any alleged encroachment by the trees. This would be a matter for the claimants to arrange.

In these circumstances, the claimants instructed Mr George Mathieson, a civil engineer, to inspect their property and report. He did so early in 2008 and wrote a letter of advice to the claimants dated 12^th March 2008 setting out his preliminary findings. He explained that due to their high water demand, trees such as the Ash should not be planted within 15-20 m from the nearest house and should be regularly pruned. His letter went on:

“While the Ash saplings in the garden bordering onto yours have not yet caused any damage to your property, they need to be dealt with as a matter of urgency so as to prevent them from causing inevitable damage in the short to medium term.”

The claimants’ solicitors wrote to the Council on 18^th March 2008 saying that the damp problem was continuing and, that in relation to the trees, Mr Mathieson had advised that there was an urgent need to deal with the Ash saplings adjacent to Number 49. They asked for the work to be carried out in four weeks without the need for an application to be made for an injunction. The letter of advice from Mr Mathieson was forwarded to the Council on 7^th April together with recommendations from a builder as to how to deal with the damp problem.

In the meantime, the Council had written to Bishop & Sewell on 3^rd April stating that Greenspace had taken soil samples from the Ash tree near the fence and their comments were awaited. On 23^rd April the Council wrote a further letter to the claimants’ solicitors which indicated that they should direct their complaints about the trees to Greenspace who were responsible for deciding whether trees in the Borough should be lopped or removed. Accordingly on 1^st May the solicitors did just that. They sent a copy of Mr Mathieson’s letter to Greenspace and asked to be informed about the results of the soil samples taken. They also asked for an undertaking that the Ash trees would be removed and the other trees kept regularly pruned.

The reply from Mr James Chambers, the Council’s Senior Tree Officer, was not encouraging and also disclosed a state of internal confusion about who (if anybody) had been instructed to deal with the tree issue on behalf of the Council. He said in his letter that he had no record of receiving any request to inspect the trees at Number 47 and did not intend to do so until the “required documents are received”. But in relation to the complaint about the tree roots, he said this:

“… I note you have also provided a copy of a letter from a ‘George Mathieson Associates’ offering some opinions on trees in the area. This letter does clearly state that there is no damage to no. 49 at this time.

No tree removal will be undertaken in relation to Alleged Tree Root Damage (ATRD) claims unless and until detailed and extensive evidence that directly implicates a tree as a major causal factor in significant damage to a building, and where no other alternative remains.

Trees will certainly not be removed on the grounds that they may hypothetically cause damage at some point in the future. Any necessary tree work can only be determined through a tree inspection, which you can request as mentioned above.”

The claimants’ solicitors responded on 2^nd June saying that their client was frustrated by the lack of progress and that she reserved her right to issue proceedings for an injunction to compel the Council to abate the nuisance. They received a reply from the Council on 4^th June saying that Greenspace were now arranging an inspection of the trees but that it would be for the claimants to provide the root samples in order to substantiate their claim that damage was being caused. In fact the statement in this letter about an inspection being arranged was incorrect. The Council’s evidence at the trial in the form of a witness statement from Mr Chambers was that the Tree Service was first asked to inspect the trees at Number 47 in November 2008 and that a works order was issued to remove the saplings on 3^rd December 2008. As mentioned earlier (due, it is said, to access difficulties), the work was not carried out until 23^rd June 2009.

The claimants’ position as of June 2008 was that they had reached something of an impasse. The Council’s position (as communicated in the letter from Mr Chambers) was that the trees would not be removed unless and until they could be proved to be causing significant damage to Number 49. The claimants therefore sought further advice from Mr Mathieson. His recommendation was that the taking of soil samples would be expensive and was unnecessary because it was obvious that the trees were growing rapidly and would, if unchecked, inevitably lead to damage being caused to both properties. The trees should therefore be removed immediately and at relatively little cost instead of being allowed to grow and cause potentially extensive damage in the future which could only be remedied at considerable expense.

Accordingly Bishop & Sewell wrote to the Council on 26^th June enclosing a copy of Mr Mathieson’s recent letter of advice. The letter concluded by saying that:

“In a final attempt to avoid the issue of court proceedings, our client requires that the trees in the front and rear gardens are properly lopped in accordance with our client’s expert’s report by close of business on Thursday 10 July 2008. If this is not done by this date, then our client will have no alternative but to make an application to the court to compel you to abate this nuisance”.

The Council then wrote to Bishop & Sewell stating that a tree referral request had been sent to the Tree Service. As mentioned earlier, this was untrue but in November the request was made with the consequences I have outlined. Bishop & Sewell were not, however, informed of this. They instructed Mr Mathieson to produce a detailed report which could be used in court proceedings which he did based on inspections of the property in February and September 2008. In his report dated 30^th November 2008 he concluded that there was no evidence of actual root intrusion and damage in respect of the drains and foundations of Number 49 but that damage of this kind was in time inevitable absent the pruning and removal of the trees. He estimated that significant damage would probably begin to appear within about five years.

Between July 2008 and March 2009 there was no further correspondence between the parties about the possibility of the claimants seeking injunctive relief and had the Council communicated its intention to remove the trees that would have been the end of the matter. On 3^rd March 2009 Bishop & Sewell wrote again to the Council but this letter does not refer to the issue about tree roots. It was all about the damp problem which they said had recurred and needed to be remedied failing which proceedings would be commenced. The Council replied to this letter on 16^th March promising action but again there is no mention of the trees.

The position therefore is that there was no further communication between the parties on the issue of nuisance from trees after the correspondence in June 2008. The claimants had put the Council on notice that unless the trees were lopped or removed, proceedings for an injunction would be instituted and had imposed a deadline of 10^th July. But this was allowed to pass without action being taken. The Council had subsequently decided to remove the trees but had not informed the claimants of this or carried out the work by the time that the proceedings were issued on 20^th March 2009.

Had Bishop & Sewell taken the precaution of writing a formal letter before action to the Council before instituting the claim then it seems likely that they would have been told of what was planned. But they did not do that. The claim form was issued seeking damages and an injunction and the particulars of claim alleged that if the Ash trees were not appropriately maintained or cut back they threatened to cause damage to Number 49 by encroaching roots and the extraction of water from the foundations which was likely to be disruptive and expensive to repair.

In the defence served on 28^th April 2009 the allegation that the Ash trees constituted an actual or potential nuisance was denied as was the claimants’ entitlement to a quia timet injunction. But in paragraph 3 the Council pleaded that a works order had been issued on 10^th December 2008 to remove the trees and that the work would be carried out within a reasonable period of time.

As already stated, the removal of the trees took place on 23^rd June. On 12^th August Bishop & Sewell proposed the making of a consent order in Tomlin form staying the proceedings on terms that the Council should carry out regular inspections of Number 47; should take any necessary steps to reduce the growth of any remaining trees; and should undertake to pay the reasonable costs of any repairs to Number 49 caused by past or future tree growth. The Tomlin order also provided for the Council to pay the costs of the action.

The action was stayed on 2^nd September 2009 to allow for settlement but the Council declined to agree to the terms proposed. I should mention that at that stage the claimants’ costs were stated to be some £24,251 which included an After the Event insurance premium of £7,875 and solicitors’ profit costs of £9,550. The claimants modified their terms of settlement by offering simply to discontinue on the payment by the Council of £22,000 towards their costs. But this was not acceptable and the action therefore proceeded to trial.

The judge heard expert evidence from Mr Mathieson and from Ms Fiona Critchley, an arboriculturalist instructed on behalf of the Council. They had met in the usual way before the trial and had reached agreement on a number of matters. Trees more than 10 metres from Number 49 were unlikely to have any significant effect on the building. The growth rate of the relevant trees and their rooting patterns could not be predicted. It was therefore impossible to say precisely how and when damage would occur. What they disagreed on was how imminent the risk of significant and serious damage was. Mr Mathieson (as foreshadowed in his reports) thought that the risk was impending and that such damage was likely to occur to the drainage system within 5 years. Ms Critchley considered that it was impossible to predict if or when the closest trees would cause damage or what its nature would be. The judge set out his conclusions on this issue in paragraphs 43-46 of his judgment:

“43.

I conclude from this evidence that there are a number of areas of uncertainty in this case; uncertainty about the nature of the soil (Is it gravel? Is it clay?); about the depth of the foundations; whether or not there are drains present in the backgarden under the patio and uncertainty about the rate of growth of the trees.

44.

The evidence shows that the work could be carried out in early 2010 without great expense or effort. The evidence I have had from Mr. Chambers is that it would have cost £500 to cut down the 8 saplings and to treat them with poison. It would require much greater work and expense the larger the trees.

45.

I am also satisfied that both experts were satisfied that there was a risk that trees 1 and 10 would penetrate drains and affect the foundations, but the effects could not be seen possibly because damage would not occur after some years - possibly three or five years or more. I would add this to the experts’ conclusions. The uncertainties that I have listed could not be resolved without expense which was out of all proportion to the cost of the works (for example the drains under the patio, taking soil samples and so forth). I note that Mr. Chambers did not consider that it was necessary to take root samples before he cut down the Ash-saplings.

46.

I also conclude that, unless cracking was caused in the patio, it was unlikely that more evidence of the risk increasing or becoming more imminent could be obtained before serious damage was done to the property.”

The judge was obviously right to conclude that damage to Number 49 could well occur before there was any physical sign of it above ground level. He was also clearly right that the cost and trouble of removing the trees at an early stage would be considerably less than if they were allowed to grow unchecked for several more years. Any prudent landowner would therefore take the course recommended by Mr Mathieson in this case. It would also have been no more than good neighbourliness for the Council to have recognised the concerns of the claimants at an early stage and that the problem caused by the Ash trees was due to the neglect of the gardens of Number 47 by the tenants of that property. The trees were self-sown and entirely unsuitable for the location where they had been allowed to grow. Even a properly cautious policy of preservation and environmental conservation should have recognised this.

But this appeal is not about the reasonableness of the Council’s position at the time. As the judge himself recognised, damage is the essential component of any claim in nuisance and the claimants had no cause of action unless they could prove either that their property had already suffered physical damage due to the encroachment by the trees or that the prospect of such damage was sufficiently imminent and certain as to justify the grant of quia timet relief.

On the judge’s findings, actual damage was not established and the success of the claim (and therefore the costs outcome) depended on the claimants’ proving the existence of a real and substantial risk of damage of an imminent kind.

The court has an undoubted jurisdiction to grant injunctive relief on a quia timet basis when that is necessary in order to prevent a threatened or apprehended act of nuisance. But because this kind of relief ordinarily involves an interference with the rights and property of the defendant and may (as in this case) take a mandatory form requiring positive action and expenditure, the practice of the court has necessarily been to proceed with caution and to require to be satisfied that the risk of actual damage occurring is both imminent and real. That is particularly so when, as in this case, the injunction sought is a permanent injunction at trial rather than an interlocutory order granted on American Cyanamid principles having regard to the balance of convenience. A permanent injunction can only be granted if the claimant has proved at the trial that there will be an actual infringement of his rights unless the injunction is granted.

A much-quoted formulation of this principle is set out in the judgment of Pearson J in Fletcher v Bealey (1884) 28 Ch D 688 at 698 where he first quotes from Mellish LJ in Salvin v. North Brancepeth Coal Company (1874) LR 9 Ch App 705 and then adds his own comments that:

“… it is not correct to say, as a strict proposition of law, that, if the plaintiff has not sustained, or cannot prove that he has sustained, substantial damage, this Court will give no relief; because, of course, if it could be proved that the plaintiff was certainly about to sustain very substantial damage by what the defendant was doing, and there was no doubt about it, this Court would at once stop the defendant, and would not wait until the substantial damage had been sustained. But in nuisance of this particular kind, it is known by experience that unless substantial damage has actually been sustained, it is impossible to be certain that substantial damage ever will be sustained, and, therefore, with reference to this particular description of nuisance, it becomes practically correct to lay down the principle, that, unless substantial damage is proved to have been sustained, this Court will not interfere. I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet action.”

More recently in Lloyd v Symonds [1998] EWCA Civ 511 (a case involving nuisance caused by noise) Chadwick LJ said that:

“On the basis of the judge's finding that the previous nuisance had ceased at the end of May 1996 the injunction which he granted on 7th January 1997 was quia timet. It was an injunction granted, not to restrain anything that the defendants were doing (then or at the commencement of the proceedings on 20th June 1996), but to restrain something which (as the plaintiff alleged) they were threatening or intending to do. Such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm -- that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. There will be cases in which the court can be satisfied that, if the defendant does what he is threatening to do, there is so strong a probability of an actionable nuisance that it is proper to restrain the act in advance rather than leave the plaintiff to seek an immediate injunction once the nuisance has commenced. “Preventing justice excelleth punishing justice” -- see Graigola Merthyr Co Ltd v Swansea Corporation [1928] Ch 235 at page 242. But, short of that, the court ought not to interfere to restrain a threatened action in circumstances in which it is satisfied that it can do complete justice by appropriate orders made if and when the threat of nuisance materialises into actual nuisance (see Attorney-General v Nottingham Corporation [1904] 1 Ch 673 at page 677).

….

In the present case, therefore, I am persuaded that the judge approached the question whether or not to grant a permanent injunction on the wrong basis. He should have asked himself whether there was a strong probability that, unless restrained by injunction, the defendants would act in breach of the Abatement Notice served on 22nd April 1996. That notice itself prohibited the causing of a nuisance. Further he should have asked himself whether, if the defendants did act in contravention of that notice, the damage suffered by the plaintiff would be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at that stage) to restrain further occurrence of the acts complained of, a remedy in damages would be inadequate. Had the judge approached the question on that basis, I am satisfied that he could not have reached the conclusion that the grant of a permanent injunction quia timet was appropriate in the circumstances of this case.”

In this case there is, I think, no real dispute that if the roots of the Ash tree had in time extended under the drains and foundations of Number 49, serious and substantial damage was likely to result. Nor would damages in those circumstances have been an adequate remedy. Had it been established that there was an imminent likelihood of such damage occurring, the court’s equitable jurisdiction to prevent an apprehended infringement of property rights would undoubtedly be exercised so as to prevent the claimants from having to suffer the disruption which would be involved. Inevitably there will be cases where other discretionary considerations require to be taken into account. If the offending tree was particularly rare or valuable in terms of its appearance, one would expect the court to attempt to strike a balance which might involve less drastic action being taken than the complete removal of the tree. But this is not that kind of case. Here the determining issue was whether (absent an injunction) there was imminent danger of actual damage.

In Hooper v Rogers [1973] 1 Ch 43 the defendant had cut a track across a steep slope which provided the foundation of the plaintiff’s farmhouse. The evidence was that this had exposed the slope to a process of soil erosion which would eventually undermine the farmhouse and cause it to collapse. The judge at first instance found that this constituted a real risk of damage and granted a mandatory injunction requiring the slope to be re-instated. In the Court of Appeal the grant of the injunction was challenged on the basis that the test of imminent danger set out by Pearson J in Fletcher v Bealey (supra) was not satisfied. Russell LJ (at p. 30) addressed that issue in these terms:

“Again it seems to me that “imminent” is used in the sense that the circumstances must be such that the remedy sought is not premature; and again I stress that there is no suggestion that in the present case any other step than reconstituting the track will be available to save the farmhouse from the probable damage.

In different cases differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted. In truth it seems to me that the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances. I am not prepared to hold that on the evidence in this unusual case the judge was wrong in considering that he could have ordered the defendant to fill in and consolidate the road at the suit of the plaintiff as owner of the farm-house, or that he was wrong in ordering damages in lieu of such an order.”

The question therefore is one of assessing the likelihood of the damage occurring at all and (if that is established) the probable timescale. The judge’s conclusions on those issues are set out in paragraphs 49-50 of his judgment:

“49.

Examining the matter in relation to the quia timet injunction, I am satisfied that there was a real likelihood of harm at some stage - that is a harm which could not sensibly be ignored. The likely extent of the harm would be damage to the drains resulting in seepage, possibly of sewage or other waste water, and/or the foundations including cracking of walls and settlement. Harm of either kind would raise concern about the other kind of harm. There would be the risk of increased insurance cover and difficulties, possibly, in selling the property. The costs or effort required by the defendant to remove the harm was minimal. There was no likelihood, in my judgment, of other methods of reducing the harm becoming available before the damage occurred. The same steps would be needed; the trees would have had to have been cut down. But I have to ask myself, however, would there be a need for an order? While there was no imminent harm in the sense of something happening within a three to five year period, there was a likelihood that in some years the work would needed to have been done to avoid damage. There was no reason for delaying the work. Delay would only increase costs.

50.

Given the Local Authority’s history of dealing with the claimants’ reasonable complaints, I am not satisfied that they would have done the work without an order. It was reasonable, in my judgment, for the claimants to commence the action when they did rather than wait. As has been pointed out, it has taken two years for this case to come onto trial even after the claim was issued. I am satisfied therefore that, if the work had not been carried out, the claimants would have been successful in obtaining their injunction. Therefore, the general rule should apply in relation to costs.”

Mr Butler, on behalf of the Council, submits that, on the basis of a finding that no damage was likely to be caused in less than 3 years, it could not be said that there was any imminent danger of such damage at the time when the injunction was granted. It was therefore premature. Mr Duddridge, for the claimants, relies on the judge’s findings that damage to Number 49 by the trees was likely to occur. In these circumstances, the judge was entitled (as in Hooper v Rogers) to conclude that an actionable nuisance was inevitable and to require the trees to be removed at minimal cost and inconvenience to both parties.

The question whether this was an appropriate case for the grant of quia timet relief has, I think, to be considered in the light of all the relevant circumstances known at the trial and not merely by reference to the narrower question of whether the tree roots were likely to cause physical damage to Number 49 within a particular period of time. The wider consideration of relevant factors had, in my view, to take into account the issues of the relative cost of removing the trees (which the judge did consider) and also the likelihood of the potential source of nuisance being controlled by action taken by the Council in the intervening period of 3 years before any actual damage occurred.

In Hooper v Rogers the inevitability of subsidence attributable to the new track was such that nothing short of its removal would cure the problem. It was therefore realistic for the judge in that case to have taken the view that an injunction should be granted as the only means of preventing that risk from materialising. Questions of timing were less significant because the defendant landowner was not prepared to restore the slope underpinning the plaintiff’s property unless compelled to do so by an order of the court.

But cases involving damage caused by trees are not necessarily so stark. Where, as in this case, the experts have identified an appreciable period of time before any actual damage is likely to occur, the judge must take into account the ability and willingness of the defendant to prevent such damage occurring by taking steps in the meantime to control the growth of the trees on his land. The claimant has to show that an injunction is necessary in order to prevent the occurrence of the nuisance. The defendant is entitled to rely on his own rights and obligations as an adjoining landowner to cure the problem and it ought therefore in principle to be only in cases where the risk of damage is so imminent and the intransigence of the defendant so obvious that the court should ordinarily be prepared to grant an injunction in order to prevent a nuisance which does not yet exist. Mandatory injunctions of this kind are not justified merely on the ground that if nothing is done a tree on adjoining land may at some point in the future begin to cause damage to the claimant’s property.

Judge Mitchell expressed the view that the Council would not have done the work without an order and that the claimants would have obtained an injunction had the work not been carried out. The judge gives no reasons for this conclusion and it is difficult to reconcile that with his earlier finding of fact that on 10^th December 2008 a works order was in fact signed for the removal of the trees. Nor was there any challenge to the pleading in the Council’s defence that it intended to carry those works out.

In these circumstances, it was not open to the judge in my view to hold that the injunction was necessary in order to prevent the potential nuisance from becoming an actual one. Although the claimants had initially to face a combination of delay and misleading information from the Council, it had by December 2008 at the latest resolved to remedy the problem by removing the trees. There was therefore no necessity for the grant of quia timet relief at the trial and the plea that the Council intended to carry out the work was a complete answer to the claim. If the appropriate rule to apply was that costs should follow the event then the judge should have dismissed the claim with costs.

The judge’s order was split into three periods in order to incorporate a discount for the 14 day period between 3^rd March 2009 when the letter was sent by the claimants’ solicitors complaining about the leak and the issue of the claim form on 20^th March. The judge explained the thinking behind his order as follows:

“51.

I also have regard to the defendants’ litigation conduct. There has been a failure by the defendants over five years until November 2009, to do anything at all. Opportunities were missed when the property was vacant in 2006 and 2008. Assurances that the works would be done in 2006 were not met. Misleading or false information was provided in April 2008. In June 2008, even if the claimants are not entitled under the general rule to costs, in my judgment, the defendants’ conduct was such as to lead to only one conclusion, namely that the claimants were acting reasonably in commencing their action. The defendant’s did not act reasonably and they should pay the claimants’ costs.

52.

But that is subject to one proviso. Letters before action were written on 1^st May 2008, 2^nd June 2008 and 26^th June 2008. Nothing was thereafter written until March 2009 - a considerable gap. Despite the lamentable history, in my judgment, it would have been reasonable to expect the claimants to send one further letter. That might have resulted in their being told the work was in hand and, therefore, the claim did not need to be issued. But, given the history, they might not have been told that. They must therefore bear some responsibility, but the greater responsibility by far is that of the defendants.

53.

Therefore, I shall make an order that the defendants are to pay the costs up to and including 2^nd March 2009 - that is 14 days before the claim commenced - but, thereafter, only one half of the costs between 2^nd March 2009 and up to and including the issue of the claim. The half costs cover the 14 day period, when a letter before action should have been written and considered and is calculated to take into account the real possibility that the defendants would not have notified the claimants that there was no need to commence the action.”

Because I consider that the judge was wrong in his assessment of whether an injunction was needed in this case to prevent the potential nuisance, it is for this court to re-consider how the discretion under CPR 44 should be exercised. Neither side wished the matter to be remitted to the County Court for that purpose.

The judge’s alternative basis for his costs order was that the claimants had acted reasonably in commencing the action because assurances given much earlier that the work would be done were not carried out and false and misleading information was given in 2008. The history does, however, have to be examined in more detail than that. The assurance given to the claimants’ ward councillor in November 2006 was certainly not acted on but the Council’s response to Bishop & Sewell’s letter of 28^th September 2007 was that it had no obligation to maintain the garden of Number 47. The most that was promised was an inspection by Greenspace. It was for the claimants to produce evidence of the incursion of tree roots.

Mr Mathieson was instructed for this purpose and produced the reports I have referred to but the Council’s response to this was that any risk of damage was still some years away. The information about the date of inspections by Greenspace in 2008 was misleading but it did not initially affect the claimants because they assumed that the inspections were taking place. When the 10^th July deadline passed it was reasonable for them to have assumed that nothing was about to be done but the decision to wait until March before issuing proceedings could also be taken as an indication that proceedings were still not in contemplation.

The gap in the correspondence between July 2008 and March 2009 covers the period in which the Council did finally inspect and decide to remove the trees. It had received the threat of proceedings in June 2008 but the decision to remove the trees (if carried out) really brought the possibility of a successful action for an injunction to an end.

It is misleading to regard the letter of 3^rd March 2009 as the resumption of the earlier correspondence. It makes no mention of the tree problem but was directed solely to the continuing issue of the damp. The Council dealt with it on that basis. The first it knew of the proceedings was when it was served with the claim form. The judge was therefore right to take the absence of a further letter before action into account but was, I think, wrong merely to reduce the costs awarded to the claimants for the 14 days before the claim was commenced. Given that there had been no further correspondence in relation to the trees before June 2008, the claimants should have written a letter before action prior to the issue of the claim form to make it clear that they did intend to go ahead with the action. This would have led to their being informed about the works order and the proceedings could have been avoided.

But at the same time I recognise the uncertainty which may have been created by the promises of an inspection in 2008 followed by silence on the part of the Council as to whether it intended to carry out any work to the trees. Although this is likely to have been cleared up by the sending of a letter before action, some allowance should be made for the Council’s own failure to respond substantively to the June 2008 letter once it had decided to remove the trees.

It seems to me therefore that the right order is that there should be no order for costs in relation to the period up to and including the service of the defence. From that moment on it was apparent that the claim must fail and the Council is entitled to its costs of the action after that date. Neither of the offers of settlement made by the claimants accurately reflects their position in the litigation.

I would therefore allow the appeal and make an order in the terms referred to above.

I agree.

I also agree.