13 avril 2023
RED Alert - April 2023 – 6 de 6 Publications
Welcome to the second of our RED Alerts of 2023.
Also featuring in this month's update:
Davies v Bridgend County Borough Council [2023] EWCA Civ 80
An owner of an investment property claimed damages for the reduction in the value of the property caused by the encroachment of Japanese knotweed from neighbouring land which had since been treated and eradicated. The question for the Court was whether such damages were available in law given it could be characterised as pure economic loss.
Mr Davies had bought the subject residential property for investment in 2004. In 2019, Mr Davies notified Bridgend County Borough Council (the Council) that Japanese knotweed from their neighbouring land had encroached onto his property. Before reaching the Court of Appeal, the District Judge found the Council had breached its duty as a neighbour to treat the knotweed. Mr Davies' damages claim by that point was for "blight" or "residual" diminution in value remaining even after the knotweed had been treated and eradicated. This was submitted by the expert evidence as amounting to £4,900.
The District Judge held that diminution in value damages were not recoverable in these type of cases following the Court of Appeal's decision in Williams v National Rail [2018] EWCA Civ 1514. Consequently, the claim was dismissed.
In the Williams case, the Court of Appeal had said:
"The purpose of the tort of nuisance is not to protect the value of the property as an investment or a financial asset."
Mr Davies unsuccessfully appealed to the High Court with the Judge agreeing that the Williams case was authority "that such economic damage is not recoverable" and that the Court of Appeal words in that case "could not be clearer." Undeterred, Mr Davies appealed again.
The Court of Appeal examined the Williams case in detail.
This case concerned two claimants whose properties had also suffered from encroachment by Japanese knotweed. There were two bases for their claim:
Consequently, in the Williams case, the Court of Appeal found for the claimants on the Encroachment Basis. More importantly, the Court then awarded damages to the claimants which included damages for the diminution in the value of their properties.
Following this analysis, the Court of Appeal held that the Judges below had misunderstood the Williams case. Williams was not authority for the proposition that damages for diminution in value cannot be awarded if nuisance was established. In fact, the correct approach was first to consider if there was an actionable nuisance. If so, did it lead to damage? In Mr Davies' case, such damage amounted to the immediate burden of having knotweed on his land. Having established nuisance, Mr Davies was entitled to damages for the diminution to the value of his property caused.
It is important to understand the meaning of damage that enabled nuisance to be established in this case. It was not the amount of the diminution in value as that is pure economic loss which is not permissible in the law of tort and includes nuisance claims. The damage was in fact the loss of amenity or enjoyment of his land.
A victory for Mr Davies but also helpful clarity on the recoverability of damages for nuisance. This case also demonstrates the importance of context. The Court of Appeal's judgment in Williams appeared clear but was misinterpreted as the Court of Appeal found in this case.
13 April 2023
par Alicia Convery
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par Stephen Burke
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par Emma Archer
13 April 2023
par Saleem Fazal MBE
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