Tort

Subsidence caused by tree roots - exercise of control over trees sufficient to establish nuisance and negligence - potential liability of another body not excluding liability for negligence

LE Jones (Insurance Brokers) Ltd v Portsmouth City Council: CA: (Lords Justice Aldous and Dyson): 7 November 2002

The claimants carried on business in a property near a row of plane trees in Portsmouth.

The property suffered damage in 1990 caused by subsidence.

The claimants instructed a firm of consulting engineers who recommended that the property be underpinned.

Up to and including 31 March 1997 Hampshire County Council was the highway authority responsible for maintaining all street trees in Portsmouth.

Pursuant to an agency agreement with the county council, Portsmouth City Council provided arboricultural services, which included the inspection and maintenance of trees.

From 1 April 1997 the city council, on becoming a unitary authority, became the relevant highway authority.

In an action against the city council the judge found that the cause of the subsidence was tree root desiccation, for which the city council was liable in negligence and nuisance.

It appealed, contending that the correct defendant was the county council.

Gordon M Bebb QC (instructed by Hampshire County Council) for the defendants; Howard Palmer QC and Daniel Crowley (instructed by Plexus Law ) for the claimants.

Held, dismissing the appeal, that the judge was right to find that the lawful exercise of control over trees, in the absence of ownership, was sufficient to make the defendant capable of liability in nuisance to the claimant; that the potential liability of the defendants in negligence was not dependent on ownership or occupation of the relevant land and nor was it excluded by potential liability of the highway authority for the same negligence; that it was not necessary to decide whether the city council was an occupier since what mattered was the right and duty to maintain the roads; that the existence of the agency agreement gave it sufficient control in fact and in law to prevent or eliminate nuisance; and that, so far as negligence was concerned, the mere fact that the city council owed a contractual duty to the county council did not mean that it did not owe a duty to anyone else.