Continuing nuisance – it grows on you

Impact of the Supreme Court ruling in Jalla & Others v Shell international trading and shipping & another on JKW / Subsidence

Facts of the case

In December 2011 there was a major oil spill off the cost of Nigeria involving the Defendant’s infrastructure. This appeal was limited to considering whether the facts of the case meant that the claim was one of “continuing private nuisance”.

This is important as a continuing private nuisance accrues a new cause of action, and therefore new limitation date, daily.

The Claimant argued that there is a continuing nuisance for as long as the undue interference with the Claimant’s land continues. In this case, this means that for as long as the spilt oil remained on the Claimant’s land, the nuisance continues.

If the Claimant was correct then the Defendant would be required to take positive action in respect of land over which it had no rights, in order to remediate the ‘escape’ and bring to a close the continuing nuisance.

In the example of a one-off flood, the state of affairs which caused the water to escape the Defendant’s land could be entirely resolved, but if the water remained on the Claimant’s land there would be a continuing nuisance, despite there being nothing which the Defendant could do on its own land to resolve the matter. 

The Supreme Court agreed that this approach cannot be correct, as it would create an obligation on the Defendant to remediate damage despite having no right to access the land of the Claimant.

How does this decision impact on the position regarding two very common types of nuisance claims, namely those arising from tree root damage, and from Japanese Knotweed?

Tree roots

The leading case of Delaware Mansions concerns tree root subsidence and is a good example of a continuing nuisance. The ongoing state of affairs is the continued existence of the tree within the Defendant’s land, and the roots then emanate from it. The ongoing damage is the continuation of the extraction of water from the soils that causes an undue interference with the use and enjoyment of the Claimant’s land.

The continuing state of affairs of having the tree on the Defendant’s land which is spreading roots makes it a continuing nuisance, rather than the fact that those roots are continuing to cause moisture extraction or instability.

The Shell case does not alter the status quo in this respect, and confirms that the Delaware principles remain good law.

Japanese Knotweed (“JKW”)

The continuing existence of JKW on the Defendant’s land is often considered to be a continuing nuisance, in the same way as when a tree continues to exist.

However, the entomology of JKW and trees are significantly different. Their in-soil root systems and mechanism of spread are very different, as are the ways in which they cause actionable damage.

It is feasible to suggest that JKW spreads in much the same way that oil spreads; from a single source it dissipates over a large area, causing damage by its presence. However trees cause subsidence damage when their roots extract water, causing a change in the properties of the soils.

If one considered the crossing of JKW from the Defendant’s land to the Claimant’s to be a ‘spill’ of JKW, then the continuing presence of JKW within the land of the Claimant could be said to be akin to the continuing presence of oil.

The ‘failure’ of the Defendant to clear the JKW from the Claimant’s land is then not a continuing cause of action, in much the same way that the Defendant’s ‘failure’ to clear the oil spill in the Shell case was not.

The Defendant could, in theory, bring the ongoing cause of action to an end by successfully treating the JKW on its own land.  Once the plant is self-supporting within the Claimant’s land, any action taken by the Defendant will not remediate the damage.

The leading cases on JKW have confirmed that the mere presence of JKW on land owned by the Defendant does not result in a cause of action.

Despite the Court of Appeal decision in Davies v Bridgend it would seem that the Supreme Court might be minded to accept that, in the case of JKW, the general understanding of breach of duty and limitation does apply, and it would be not constitute a continuing nuisance.