In the UK we live in towns and cities where space is at a premium and where we want to retain urban trees for all of the benefits trees offer us. However, living in close quarters, properties and trees often come into conflict.
Where a client is facing a claim that their tree has caused a near-by property to subside, I often hear from clients the argument that their tree was there before the house. This is something clients can feel should be the clincher in them being able to successfully defend a legal case. This is the defence of ‘coming to a nuisance’.
Rewind to the beginning of the story here. What is a ‘nuisance’? Well that isn’t nuisance as we know it from the common use of the word, e.g, rainy weather ruining a BBQ being a total nuisance!.
A legal nuisance is something different, and that’s what’s being referred to here. The legal definition of nuisance is that it is condition or activity which unduly interferes with the use and enjoyment of land such as noise, smoke, smells or (of course, roots and branches). Private nuisance being an act/omission which interferes with a person’s enjoyment of land which they own or occupy (Clerk & Lindsell on Torts).
Whether that creates a nuisance which is actionable in law depends on a whole host of factors which are all part of a reasonableness balancing act which underpins so many of the legal causes of action in the civil law.
Nuisance is an infringement of the Claimant’s interest in the property without direct entry by the defendant and generally only leads to a cause of action, i.e. a legal claim, on proof of damage.
So what about the coming to a nuisance rule and what does this mean? Well we are talking about situations such as where a housing estate is built next to a factory which is noisy at nighttime and that noise disturbs the new local residents. Also perhaps where a house is built in close proximity to a tree and then claims that the branches or roots from that tree have gone on to cause damage to the house as a result of the tree being too close.
The starting point here is one which surprises people and which is that it is generally not a defence to say that the Claimant came to the nuisance, i.e. it wasn’t a problem before and the claimant has created that problem for themselves by locating themselves too close to the thing in question (factory, tree, building etc). So the fact that a Claimant came to the nuisance doesn’t actually stop them from being able to claim money damages from a Defendant for the nuisance being caused or, in other situations, being able to claim an injunction from the court to stop the nuisance from continuing.
However behind this rule there is a principle that where there is a nuisance which isn’t causing physical damage but is simply interfering with the comfort and amenity, the court would consider the character of the neighbourhood in determining if there is a liability for the nuisance.
This was considered in the tree damage case of McCombe v Read in 1955 which establishes that it is no defence for a tree owner to argue that the tree was present before the property that has suffered damage.
However, whilst that might be the legal position the Defendant often points to factors which should have been taken into account when a new property was built. For example, building a property close to a pre existing tree but on foundations which fail to take into account the presence of the tree and are, in themselves, insufficient. In that situation, whilst the tree owner might be unable to argue that their tree was fine until the house was built too close, they have to go further and set out a failure or negligence in the construction or design of the house and show that had that not been present the house and the tree could have lived in harmony together. Whilst this would not have prevented trespass of the roots from the Defendant’s property to the Claimant’s property, had the foundations been appropriate a claim could not exist in private nuisance which requires proof of damage for there to be an actionable nuisance.
Where a client is facing a claim that their tree has caused a near-by property to subside, I often hear from clients the argument that their tree was there before the house. This is something clients can feel should be the clincher in them being able to successfully defend a legal case. This is the defence of ‘coming to a nuisance’.
Rewind to the beginning of the story here. What is a ‘nuisance’? Well that isn’t nuisance as we know it from the common use of the word, e.g, rainy weather ruining a BBQ being a total nuisance!.
A legal nuisance is something different, and that’s what’s being referred to here. The legal definition of nuisance is that it is condition or activity which unduly interferes with the use and enjoyment of land such as noise, smoke, smells or (of course, roots and branches). Private nuisance being an act/omission which interferes with a person’s enjoyment of land which they own or occupy (Clerk & Lindsell on Torts).
Whether that creates a nuisance which is actionable in law depends on a whole host of factors which are all part of a reasonableness balancing act which underpins so many of the legal causes of action in the civil law.
Nuisance is an infringement of the Claimant’s interest in the property without direct entry by the defendant and generally only leads to a cause of action, i.e. a legal claim, on proof of damage.
So what about the coming to a nuisance rule and what does this mean? Well we are talking about situations such as where a housing estate is built next to a factory which is noisy at nighttime and that noise disturbs the new local residents. Also perhaps where a house is built in close proximity to a tree and then claims that the branches or roots from that tree have gone on to cause damage to the house as a result of the tree being too close.
The starting point here is one which surprises people and which is that it is generally not a defence to say that the Claimant came to the nuisance, i.e. it wasn’t a problem before and the claimant has created that problem for themselves by locating themselves too close to the thing in question (factory, tree, building etc). So the fact that a Claimant came to the nuisance doesn’t actually stop them from being able to claim money damages from a Defendant for the nuisance being caused or, in other situations, being able to claim an injunction from the court to stop the nuisance from continuing.
However behind this rule there is a principle that where there is a nuisance which isn’t causing physical damage but is simply interfering with the comfort and amenity, the court would consider the character of the neighbourhood in determining if there is a liability for the nuisance.
This was considered in the tree damage case of McCombe v Read in 1955 which establishes that it is no defence for a tree owner to argue that the tree was present before the property that has suffered damage.
However, whilst that might be the legal position the Defendant often points to factors which should have been taken into account when a new property was built. For example, building a property close to a pre existing tree but on foundations which fail to take into account the presence of the tree and are, in themselves, insufficient. In that situation, whilst the tree owner might be unable to argue that their tree was fine until the house was built too close, they have to go further and set out a failure or negligence in the construction or design of the house and show that had that not been present the house and the tree could have lived in harmony together. Whilst this would not have prevented trespass of the roots from the Defendant’s property to the Claimant’s property, had the foundations been appropriate a claim could not exist in private nuisance which requires proof of damage for there to be an actionable nuisance.
