“It is clear that one or both of the Oak trees T1 and T2 are a material cause of damage to 68 Dennis Lane. Since the trees are very close to each other and have similar sized crowns and are of similar age it seems likely that they are jointly responsible for the damage.”
“It is reasonably foreseeable, and was so foreseeable in the period leading up to the Summer of 2006, to a person who owned and/or controlled and/or maintained and/or was responsible for a number of trees that there was a risk that the trees and/or their roots could cause damage to property.”
“This is common knowledge through extensive reporting in the media and hence something the Second Defendant knew or ought to have known.”
“It is not sufficient that the injury suffered by the respondents’ vessels was the direct result of the nuisance if that injury was in some relevant sense unforeseeable.”
“if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”
“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”
“In both the second Wagon Mound case and Goldman v Hargrave the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it.”
“It is well known that shrinkage subsidence may occur where trees extract moisture from the soil causing it to shrink – clay based soils are particularly prone to moisture-related shrinkage.”
“I see the force of Mr Makey's submission, which commended themselves understandably to the judge, that you cannot say that simply because here is a mature plane tree, in London, on London clay, whose height is greater than its distance from a neighbouring property, therefore you are on notice that there is a risk that the roots may have encroached upon the foundations of the neighbouring property and you are therefore liable in nuisance. That would be arguably an argument that is far too wide and would, as the judge said, amount almost to strict liability. But it seems to me that the judge has not dealt, and indeed has not attempted to deal, with the particular facts relied on by the claimants for putting the defendants on, as it were, constructive notice of the risk, in particular the March 1998 letter. ”
“Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found.”
“Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply—… to the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance.”
“In so far as the nuisance cannot be abated or prevented by cutting roots or branches on B's land or (by agreement with A) by operations to the tree on A's land, B's remedies (under the general law) are (i) to seek an injunction requiring A to abate or prevent the nuisance by something done on A's land (which might be the cutting down, uprooting, topping or lopping of the tree), (ii) to seek an order for damages against A in respect of the damage suffered (including the prospective cost of remedial works) or (iii) to carry out remedial or preventative works on his own land and seek to recover the costs of those works from A: see the Delaware Mansions case. Absent the ability to rely on section 198(6)(b) of the 1990 Act, the existence of a tree preservation order may restrict what A can do to the tree on his own land; and so may restrict B's ability to obtain an injunction. But there is nothing in section 198, as it seems to me, which alters B's remedies under heads (ii) or (iii). There is no substance in the argument that, unless section 198(6)(b) of the 1990 Act is interpreted in such a way that it is simple for B to decide whether he can cut down a protected tree, B will be deprived of an effective remedy.”
“It must be kept in mind, first, that—in making the application for consent—the applicant must be taken to have accepted that it was not necessary to fell the tree in order to prevent or abate the nuisance.
“the measures taken by the innocent party to extricate himself from the difficulty in which he has been placed by the wrongdoer ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty.”