August EWJ 24 - Flipbook - Page 32
ongoing breach of duty. This will be a matter of
expert opinion and will be fact sensitive.
It was the council's position that as the first encroachment occurred before breach of their duty, it must be
the case that the loss was not caused by said breach;
even if the council had not been in breach of duty at all,
the claimant's losses would still have been as pleaded.
Lessons for landowners
It remains crucial that land owners instigate reasonable treatment programmes once they are aware of
JKW on their land.
The claimant contended that the residual diminution
in the value of their property was caused by the breach
of duty as any treatment by the claimant would have
been futile and that the defendant should not be absolved from liability caused by this breach of duty either in full or in part. Alternatively, without the
continuing breach of duty, the amount of stigma
would have reduced as it would have become
increasingly historic.
Whilst not an issue in front of the Supreme Court, it
remains highly likely that landowners will continue to
be held to be in breach of duty for not treating JKW
that they ought to have known about but in fact did not.
There is no guidance as to precisely what steps
defendant's must take to pro-actively identify JKW on
their land, but the lower courts found the council
should have known about the JKW around 12 months
before they actually did as they should have pro-actively looked for it. This will likely be a fact focused
issue with significant consideration also given to the
nature and financial means of the landowner.
The Decision
The Supreme Court ruled that as it was common
ground that the JKW first encroached upon 10 Dinam
Street sometime before 2004 (the date of purchase by
the claimant) and crucially before the council should
have taken action in 2013, the losses were associated
with there being JKW on the claimant's land; the
breach between 2013 and 2018 was not material.
Claimant's will have difficulty in attributing any losses
to a breach of duty where the first encroachment of
JKW materially pre-dates the RICS report of 2012.
The claimant failed to evidence that there was any
increase in the level of loss as result of the breach of
duty from 2013 to 2018 (or that the breach caused the
loss to 'freeze').
The area of contention will now likely refocus on
issues of limitation and the issue of proactive identification of JKW and whether this is a requirement to
avoid liability.
It was held on the facts that had the council not been
in breach of duty, the residual diminution would have
been at the same level as it could not have diminished
by action or time.
Our Subsidence Team deals with cases like this on a
regular basis. For more information or advice, please
contact one of our experts.
https://www.dacbeachcroft.com/en/What-we-do/Services/Insurance/Property/Subsidence?utm_source=Website&utm_medium
=ProductPage&utm_campaign=08052024-Property-Subsidence-MatthewAnderson
Consequences
This should be a reassuring judgment for landowners as the Supreme Court have now conclusively dispelled any suggestion that the burden of
compensating a claimant for all of the financial consequences of there being JKW on the claimant's land
falls to the defendant simply because they were, at one
time, in breach of their obligations in respect of treating and controlling the JKW on their own land.
Authors
Matthew Anderson - Solicitor
Matthew has experience in high value and complex
subsidence damage an JKW claims acting for large
multinational organisations, insurers and local
authorities
Call: +44 (0) 121 698 5220
Email: manderson@dacbeachcroft.com
The extent of a defendant's liability will be limited to
the losses that are identifiably caused by the breach of
duty, this might include an increase in treatment costs
and/or increased residual diminution where such
increase can be attributed to the breach of duty.
Katrina Davies - Legal Director
Kat is the head of the wider subsidence department
which incorporates specialist teams in liability, recovery
and mitigation.
Call:+44 (0) 121 698 5790
Email: kdavies@dacbeachcroft.com
It remains to be seen the extent to which the court will
distinguish between new encroachment and natural
expansion of JKW already within the claimant's land
and the extent to which the latter is attributable to any
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