Action by leaseholders of house in Hampstead Garden Suburb against highway authority, claiming damages in nuisance and negligence for damage caused by roots of oak trees encroaching from under pavement to under foundations of house — Subsidence caused by shrinkage of clay subsoil from which the roots had extracted moisture — Damages sought in respect of cost of various investigations, cost of repair, including underpinning the foundations, depreciation in value and cost of living temporarily in alternative accommodation — House built on London Clay, a soil particularly susceptible to moisture-absorbing action of tree roots — Trees in question were planted, not self-sown, and long antedated the adoption of the street in which the subject property was situated — In the present case the highway authority argued that, as there was a presumption that the soil of the highway usque ad medium filum viae belonged to the owners of the adjoining land, the authority could not be held liable for the action of trees which were within the soil of the mid-line of the road belonging to the complainants themselves — After considering a variety of submissions on both sides, the judge held that the fact that the houseowners were presumed in law to be the owners of the offending trees was no bar to an action by them in nuisance against the authority, which was in occupation of the street qua street and was in control of the trees under various statutory powers — It was clear from Leakey v National Trust that liability in nuisance did not, however, arise unless the defendants could reasonably have foreseen the likelihood of damage from the encroaching tree roots — The judge was satisfied in the present case that the defendant authority could reasonably have foreseen the risk of damage to the plaintiffs’ house from the roots and that the authority knew or ought to have known that the roots had penetrated under the foundations — The authority should have taken steps to prevent or mitigate the damage — The water-absorbing leaf cover could have been reduced by crowning, lopping and thinning the trees — The plaintiffs’ claim in negligence was also made out — Issues of damage to be tried by an Official Referee
In this case
the plaintiffs, Clive Russell and his wife, Angela Marion Russell, sued the
London Borough of Barnet, as highway authority, in both nuisance and negligence
for damage caused to their leasehold property at 1 Spencer Drive, Hampstead
Garden Suburb, London N2, by subsidence due to the encroachment of tree roots.
D O’Brien QC
and D Thomas (instructed by Leslie J Watmore & Co) appeared on behalf of
the plaintiffs; Scott Baker QC and D Day (instructed by Barlow Lyde &
Gilbert) represented the defendants.
Giving
judgment, TUDOR EVANS J said: In 1970 the plaintiffs, Mr and Mrs Russell,
purchased the lease of a house at 1 Spencer Drive, Hampstead Garden Suburb in
North London. Before they moved in, they had the house surveyed by Mr Slyper, a
qualified surveyor. He reported favourably on the structure of the house. The
plaintiffs lived there uneventfully until the very dry summer of 1976, when, in
about June or July, Mr Russell noticed some cracks in a wall in the sitting
room. He dismissed them as the probable result of some recent building work
which had been carried out in the room. But a little later, probably in early
August, he returned home from work one evening and he was alarmed to find that
he was able to place his hand under the wall separating the hall from the
dining-room. He called in Mr Slyper because, as he said in evidence, he feared
that the house might be in danger of falling down. Mr Slyper found signs of
extensive structural movement which he thought was caused by subsidence.
Further investigations were carried out as a result of which it is claimed that
the cause of the damage was the action of the roots of two oak trees growing in
the pavement outside the house. The roots are said to have encroached on to the
plaintiffs’ property and to have extracted moisture from the clay subsoil, thus
causing it to shrink and so leading to subsidence of the foundations,
structural movement of the house and damage. The defendants are the highway
authority for the borough of Barnet, including Spencer Drive. The plaintiffs
claim damages in nuisance and negligence. They claim the cost of repairing the
house, including underpinning of the foundations and the cost of the various
investigations. They also claim the cost of having to live in alternative
accommodation when the repair work was being carried out, depreciation in the
value of the house and various expenses. It is agreed by counsel that, if
liability is established, it is appropriate for the issue of damage to be tried
by an Official Referee.
The plaintiffs
contend that the defendants are and were at all times the owners of the two
trees but that if they were not, they exercised sufficient control over the
trees to make them liable in nuisance and negligence for the damage caused by
the encroaching roots. The basis of the claim in nuisance is Davey v Harrow
Corporation [1958] 1 QB 60 in which it was held in the Court of Appeal that
once it is proved that damage has been caused by encroaching tree roots an
action in nuisance will lie. In relying upon Davey v Harrow
Corporation, Mr O’Brien, counsel for the plaintiffs, is faced with the
difficulty that in Leakey v National Trust for Places of Historic
Interest and Natural Beauty [1980] QB 485, the Court of Appeal, while
accepting Davey’s case, added the proviso that, in cases of nuisance not
brought about by human agency, the duty does not arise unless the defendant has
or ought to have had knowledge of the existence of the risk and the danger
created thereby. He meets the difficulty by contending that damage caused by
the encroachment of tree roots occupies an anomalous position in law. But if
reasonable foreseeability is an element in this branch of the law of nuisance,
Mr O’Brien submits that the risk was, on the facts, reasonably foreseeable and
that it was reasonably practicable for the defendants to have prevented or
minimised the risk.
The defendants
deny that they were the owners of the trees or that they had control over them.
They rely upon the presumption of law that the owners of property adjoining a
highway are deemed to be the owners of the subsoil usque ad medium filum
viae and they submit that since the trees were growing out of the subsoil,
the plaintiffs were the owners of the trees or, if not the plaintiffs, that the
freeholders were. The defendants rely upon Leakey v National Trust
(supra) and contend that the risk was not reasonably foreseeable but that,
if it was, the defendants were not wanting in care on the facts. A plea of
contributory negligence was abandoned by Mr Scott Baker, counsel
plaintiffs is barred by the operation of the Limitation Act 1980, but I heard
no argument in support of the plea. I might add that I heard very little
argument on the issue of negligence as the basis of separate liability, but I shall
refer to this aspect of the case after I have considered the plaintiffs’ claim
in nuisance.
No 1 Spencer
Drive was built in about 1935. According to the evidence of Mr Chapman, a
chartered loss adjuster called on behalf of the plaintiffs, whose evidence I
accept, the foundations were 3 ft deep. The plaintiffs bought a 2,000-year
lease in November 1970 with an option to purchase the freehold exercisable
during a period of five years from the date of the lease: see the fourth
schedule of the lease. The plaintiffs bought the freehold in April 1978. There
was no doubt on the evidence and I find that the house was built on soil
consisting of London Clay which is peculiarly susceptible to the action of tree
roots. On this issue, I need only refer to the evidence of Mr Frederick, the
defendants’ park services manager. He said that, in the main, the borough of
Barnet is laid on London Clay. He produced a geological map (D2) which supports
his evidence. The map specifically shows a valley of London Clay with Spencer
Drive to the east, also standing on clay.
Spencer Drive
was adopted by the defendants on September 12 1948 as a highway repairable by
the inhabitants at large in accordance with powers conferred by the Public
Health Acts Amendment Act 1890 and pursuant to the recommendation of the
defendants’ highway committee. It seems to me probable that a private street
pre-existed the adoption. It is hardly to be expected that the inhabitants of
Spencer Drive did not have a private street to gain access to and from their
houses and I note that in his report (P5) Mr Akroyd, an engineer called on
behalf of the defendants, states that documents in the defendants’ possession
show that no 1 was completed in September 1935 when Spencer Drive was a private
road. The street seems to have been adopted under powers contained in section
41 of the Act of 1890, which makes provision for the adoption of private
streets. These facts are relevant to an argument of Mr O’Brien in relation to
the presumption of ownership ad medium filum which I shall consider
later.
A question has
arisen whether the two oak trees stand within the boundaries of 1 Spencer Drive
projected forward into the highway. If they do and if the defendants are
correct in their submission in relation to the presumption of ownership, it
would follow that both trees were presumed to have been owned in 1976 by the
plaintiffs or by the freeholder. But the evidence satisfies me that only one of
the trees stood within the projected boundary lines. There are houses on each side
of 1 Spencer Drive. To the north is Hampton House. To the south is 3 Spencer
Drive. A series of photographs (D1 and D7) were put in evidence. D1 clearly
shows that the northern tree (no 1 oak tree) is outside the plaintiffs’
northern boundary line. It is within the boundary line of Hampton House. No 2
oak tree is within the boundary line of the plaintiffs’ house. There is no
doubt that both oak trees long antedate the adoption of Spencer Drive and also
the private street that preceded it. According to Dr Biddle, a highly qualified
and impressive arboriculturist called on behalf of the plaintiffs, both trees
began life in about 1835. I accept that evidence, which is not seriously
disputed by the defendants. I am also satisfied that the trees were planted and
not self-sown. Dr Biddle was recalled to give evidence on this issue. He said
that the fact that the trees were low branching and with broad spreading crowns
suggested to him that the trees had grown in a hedgerow. At the time when the
trees began life, it was the practice to plant oak trees in hedgerows because
the shape into which they grew made them suitable for use as the ribs of
wooden-walled ships. Dr Biddle favoured planting as the origin of the trees. In
fact, his evidence was later fully confirmed by the production of a map,
originally drawn in 1863 and subsequently revised. This map strongly suggests
that the two oak trees and a third which is still growing further to the north,
were then in a hedgerow. The question whether the trees were planted or
self-sown is relevant to an argument of Mr Scott Baker that section 82(1) of
the Highways Act 1959 as amended by section 5 of the Highways (Miscellaneous
Provisions) Act 1961, upon which the plaintiffs rely, does not apply to
self-sown trees. Section 82(1) as amended empowers a local authority itself to
plant trees and to do everything expedient to maintain and protect trees
whether or not they have been planted by them. Section 82(5) provides that no
tree shall be planted or, if planted, allowed to remain so as to be a nuisance
or injurious to an adjacent owner or occupier. The plaintiffs rely upon section
82 as an indication of the defendants’ power to control the trees and as proof
that the defendants were under a duty not to allow them to become a nuisance,
as I shall consider in greater detail later. The defendants’ submission fails
on the facts, subject to one point raised by Mr Scott Baker. He submits that
the trees may have grown from acorns deliberately planted and that, if so, they
would not have been planted within the meaning of the language of section 82.
It is pure surmise that the trees originated in this way: it is contrary to the
evidence of Dr Biddle and, even if it were correct on the facts, I am unable to
follow why section 82 should not apply to the trees planted in this way.
Before I
consider the submissions of law, I must refer to the issue of causation. The
early 1970s were an exceptionally dry period. Mr Akroyd at p 6 of his report
described it as starting in 1971 and culminating in the hot summers of 1975 and
1976. The winter of 1975-76 was also dry. Clay soil is particularly liable to
shrink if water is extracted from it by tree roots.
In his report
dated July 6 1978 Dr Biddle stated:
The amount of
soil moisture deficit caused by tree root activity will vary depending on the
time of year and weather conditions. Thus during winter months, there is no
water demand by the tree and the heavy rainfall will reduce any existing
deficit. Conversely, during the summer the amount of water deficit will
increase. During drought conditions, particularly under the extreme conditions
experienced during 1976, the amount of water deficit will increase dramatically
and there will be a corresponding increase in the amount of soil shrinkage.
Mr Akroyd accepts
this opinion. In his report of October 14 1983 he wrote: ‘The laboratory tests
and experience have shown that this soil is highly susceptible to volume
changes resulting from changes in its moisture content.’ There can be no doubt on the evidence that
the roots of both oak trees grew under the foundations of the house. Indeed, it
is likely that that house was actually built over the roots. Dr Biddle said in
evidence that the two trees were well established when the house was built and
that the root system was then under part of the house, certainly under the
front half. A histogram drawn by Dr Biddle to show the annual radial growth of
the two trees from 1925 to 1971 suggests that there was a reduction in growth
associated with the building of the house. When excavations were carried out
close to the house, roots from the trees were discovered. Mr Chapman referred
to root samples as having been found outside the house adjacent to a bay
window. Mr Akroyd at p 6 of this report accepted that roots from one or other
or both trees were found in bore holes dug when he investigated the cause of
the damage. On the evidence, it is clear that the roots of the two trees
extracted moisture from the clay subsoil, that this caused the soil to shrink
and that this in turn led to subsidence of the foundations and other damage.
The dry conditions in the 1970s culminating in the very dry summer of 1976 were
undoubtedly a cause of the damage.
In his final
address, Mr Scott Baker said that he accepted that the tree roots caused the
damage, although there were, as he submitted, other concurrent causes such as
dry weather, poor foundations and London Clay. In the course of his evidence,
Dr Biddle, on the basis that oak tree no 1 was twice as demanding of water as
oak tree no 2 by reason of the size and vigour of the tree, apportioned the
damage in the ratio of about 60% to no 1 tree and 30% to no 2. A small
percentage of damage was probably caused by a privet hedge growing on the
boundary between Hampton House and 1 Spencer Drive. In evidence, he was
prepared to accept that these percentages might be varied but, in relation to
the damage attributable to the trees, he thought that not more than 75% was
attributable to no 1 oak tree with 25% attributable to no 2. If no 1 oak tree
had not been there, Dr Biddle thought that the amount of damage would have been
reduced. I need not further consider the issue of damage and its cause or
causes. Nor is it necessary at this stage to consider other relevant facts: I
shall do so when I have considered the questions of law which arise.
It is well
established by ancient authority that the soil of the highway usque ad
medium filum viae belongs to the owner of land adjoining the highway: see,
for example, Goodtitle v Alker (1757) 97 Eng Rep 231, cited in Bridges
v London Borough of Harrow (1981) 260 ESTATES GAZETTE 284, to which I
have been referred. In Goodtitle v Alker, Lord Mansfield said at
p 236:
. . . the
King has nothing but the passage for himself and his people: but the freehold
and all profits belong to the owner of the soil. So do all the trees upon it,
and mines under it . . .
Various
reasons have been given for the presumption. In St Edmundsbury and Ipswich
Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572, Megarry
J said at p 1583:
It has been
based on convenience and the prevention of disputes, and in the case of public
highways on the supposition that the proprietors on each side of the road each
contributed half of it.
The presumption
may, I suppose, also be based upon the principle that the land must be owned by
someone and that since the rights and powers of the highway authority extend
only to such depth as may fairly be used for highway purposes, the soil beneath
the highway must be presumed to be owned by the adjoining owners; see, for
example, Coverdale v Charlton (1878) 4 QBD 104. Whatever may be
the legal basis for what in modern urban conditions may seem to be little more
than a vestigial right, the presumption is too well established to be doubted
and it is a powerful argument available to the defendants. But it is
rebuttable. Mr O’Brien seeks to evade its consequences in various ways. First,
he relies upon plans annexed to the entries in H M Land Registry relating to
the plaintiffs’ lease of 1970 and the transfer of the freehold to the
plaintiffs in 1978. The plans are identical. The boundary of the property is
delineated by a heavy thick line. On the highway side of the house, the line is
drawn at the junction of the property and the pavement. The plaintiffs
therefore submit that the land beyond the line (that is, the land under the
pavement and the highway) was outside their boundary and expressly excluded
from the lease.
But I think
that this is very uncertain evidence upon which to find that the presumption is
rebutted. It seems to me that plans used for the registration of title are of
little evidential value. In Halsbury’s Laws of England (4th ed), vol 4,
para 836, the learned editors write:
The plans
used by the Land Registry for the registration of titles are based on the
ordnance survey maps and ordinarily are deemed to show only what are described
as general boundaries. In such cases the exact line of the boundary is left
undetermined, as to whether, for instance, it includes a hedge or wall and
ditch or runs along the centre of a wall or fence or its outer or inner face or
how far it runs within or beyond it. Similarly, the plan is not conclusive as
to whether or not the land registered includes the whole or any part of any
adjoining land or stream, even if the feature is expressly included in or
excluded from the title.
The plans
annexed to P1 and P2 are simply taken from the ordnance survey and are poor
evidence to indicate that the land was excluded from the lease. I hold that the
presumption is not rebutted in this case by the plans annexed to the Register.
Secondly, Mr
O’Brien relies upon two covenants in the lease as rebutting the presumption. By
clause 7 of the third schedule to the lease, the plaintiffs covenanted:
To pay or
contribute to the Lessor a reasonable proportion of the expenses (including
road and adoption charges) by whomsoever incurred of making repairing
rebuilding maintaining and cleansing all party walls fences and hedges and all
sewers drains pipes water pipes and water courses roads casements and common
rights of way and other conveniences which shall during the term be used or be
capable of being used in common by the property or any part thereof and any
adjoining or neighbouring property such proportion to be paid to the Lessor on
demand.
Mr O’Brien
contends that since the freeholder was seeking to protect himself against
having to pay road and adoption charges, it must follow that he had retained
the land in front of the garden of the house in respect of which he might be
liable to pay such charges and therefore the presumption of law that the
plaintiffs owned the soil to the mid-line of the road cannot apply: the soil
was retained by the freeholder. Accepting for the moment that the argument is
valid, I fail to see how it assists the plaintiffs. If the freeholder retained
the soil, he retained the trees growing out of it. The argument in fact diverts
ownership from the defendants. On any view, the argument could only assist the
plaintiffs in relation to no 2 oak tree. It would not rebut the presumption
that the owner or occupier of Hampton House owned no 1 oak tree. But I do not
consider that clause 7 of the lease has the effect for which the plaintiffs
contend. In 1970 when the plaintiffs took a lease of the house, Spencer Drive
had been a public highway for 21 years, which makes the reference in clause 7
to ‘adoption charges’ inapposite. Mr O’Brien meets this objection by contending
that clause 7 was in the original lease executed in 1935 and that its
repetition in the lease of 1970 is a clear indication of retention of the soil
by the freeholder. It is fully comprehensible that in 1935, when there was no
public highway, the freeholder would seek to protect himself against the risk that
road and adoption charges might be levied against him. Whether a highway
authority has power to levy charges on adoption against the freeholder alone, I
do not know. I have heard no argument as to the statutory liability to levy
such charges. I am not satisfied that it follows from the fact that the
freeholder retained the right to call on his leaseholder to pay a reasonable
proportion of such charges that he had retained ownership of the subsoil to the
exclusion of the presumption against the leaseholder. I think that the reality
is that, in 1935, there was no public road and that in 1970 the plaintiffs
simply took over the whole of the original lease of 1935. Clause 1(5) defines
‘the lease’ as meaning ‘the lease of the property short particulars whereof are
set out in the First Schedule hereto’. The first schedule simply recites the
lease of 1935. It may be that clause 7 of the third schedule was nothing more
than a repetition of a clause in the lease of 1935 which was no longer
appropriate since a public highway was already in existence. In any event, the
presumption did not arise until the public highway was adopted in 1949 and it
operated against the then leaseholder and in due course the plaintiffs. I have
heard no argument to suggest that the presumption operates against the
freeholder and not the leaseholder and I therefore take the law to be that it
does operate against the latter. I find that clause 7 does not rebut the
presumption.
In a reply, Mr
Day, junior counsel for the defendants, submitted that the argument based on
the lease could not, in any circumstances, assist the plaintiffs, since they
themselves acquired the freehold and therefore, on the plaintiffs’ argument,
expressly acquired ownership of the land and of the trees. But I do not think
that this can be an answer, since the freehold was purchased in 1978, after the
damage giving rise to this action had been caused.
The second
aspect of Mr O’Brien’s submission based on the lease relates to clause 11 of
the tenant’s covenants contained in the third schedule to the lease. By clause
11, the plaintiffs covenanted:
(11) To keep in good order and in a clean and tidy
condition as private garden ground or open space such part of the property as
is not built on.
As I understood
the argument, Mr O’Brien contends that clause 11 applied to the land in front
of the house, that is to say, the land over which the pavement and highway now
stand. It is said that since the clause did not require the leaseholder to
perform any act in relation to such land but merely to keep it as a private
garden, ground or open space and not to build upon it, the lease did not
include the land and it was retained by the freeholder, who was therefore the
owner of the subsoil. It is implicit in this submission that clause 11 of the
1970 lease is in the same terms as the lease of 1935 because it would be
meaningless to insert such a clause in a lease in relation to land underlying a
pavement and a public highway. But the argument is based upon an assumption for
which there is not the slightest evidence. There is nothing to indicate that
clause 11 and its predecessor in the 1935 lease applied to the land in front of
and outside the house. It may have applied exclusively to the garden at the
back for all the evidence shows. But, apart from this, I do not think that
clause 11 has any connection with the presumption of ownership of the subsoil.
The third
argument is that since, at the time when the property was completed and
originally leased, there was no public highway in front of the house, there can
be no room for the presumption, since the concept applies only where there is a
public highway. The argument is based upon Leigh v Jack (1879) 5
Ex D 264. The plaintiff in that case claimed possession of a piece of land. The
defendant contended that the land which was to be used as a public highway was
vested in him usque ad medium filum viae. But it was held that the
presumption did not apply to land which, although intended to be used as a
highway, had never been dedicated to the public. Cockburn CJ said at p 270 of
the report: ‘I think that the legal presumption as to the ownership of the soil
of a highway does not apply to intended streets.’ Cotton LJ (at p 273 of the report) expressed
the same opinion.
I think that
the fallacy in the plaintiffs’ argument is the contention that, if there was no
public highway at the time when the house was built, it is impossible
thereafter for the presumption to arise. But the presumption can arise only
when the highway comes into being: there is no reason for it before that time.
Mr Scott Baker has referred me to Pratt and Mackenzie on Highways (21st
ed) where at p 50, referring to the presumption, it is stated:
This
presumption has been said to rest on the supposition that, when the road was
originally set out, the proprietors of the adjoining land each contributed a
portion of the land for its formation.
In my judgment,
the fact that there was no public highway in 1935 is irrelevant to the question
whether the presumption operates against
in 1935. It seems to me that the presumption arises in the case of such roads.
That is the opinion of the editors of Halsbury’s Laws of England (4th
ed, vol 21, para 95).
Mr Scott Baker
referred to the Encyclopedia of Highways, p 2249, where the authors
state that if a street is a private street then the trees in it belong to the
owners of the soil.
Finally, on
this part of the case, the plaintiffs rely upon observations of Stocker J in Solloway
v Hampshire County Council (unreported, February 20 1981)* for the
proposition that the presumption is nothing more than a legal fiction. That was
a claim for damages in nuisance caused by the encroachment of the roots of a
tree growing within the confines of a highway of which the defendants were the
highway authority. It was found as a fact that the highway was a public highway
long before the tree was planted. It was argued, but not pleaded, that the
plaintiff was the owner of the tree and thus was not able to sue for damage
caused by it. The absence of such an allegation was sufficient to dispose of
the issue, but Stocker J expressed himself obiter dicta upon the
defendants’ arguments. Speaking of the presumption of ownership usque ad
medium filum viae he said (p 27 of the transcript):
The
proposition that adjoining owners are the owners of the subsoil to the centre
of the road is no doubt good law in many circumstances, although it has been
doubted that this is a valid proposition in urban surroundings. If this is
still good law in urban or metropolitan context, then in practical terms it can
be no more than a legal fiction. In such surroundings rights of ownership will
invariably be so eroded by statutory or other powers in favour of public undertakings,
such as sewerage, telephones, gas, water, electricity, that the adjacent
owners’ rights have been wholly eroded, and the proposition that the subsoil is
the property of the adjacent owner is meaningless and unrealistic in many
cases, where for example, the highway is bounded by freehold flats or offices,
as will often be the case in such urban and metropolitan conditions. Unless
constrained by binding authority, it would seem wrong to me to place legal
duties or liabilities upon a wholly unrealistic fiction.
*Editor’s
note: The decision of Stocker J at first instance was unreported. The decision
of the Court of Appeal was reported at (1981) 79 LGR 449 and at (1981) 258 EG
858, [1981] 1 EGLR 129.
If I may say
so, I agree that in many urban conditions, ownership of the subsoil to the
middle line is, in practical terms, of little or no value, at least in relation
to highway authorities. Although theoretically the owners’ rights are
unaffected, in reality it is very difficult to conceive of circumstances in
which rights in relation to a tree growing in the highway and arising from
presumption of law can be exercised. It is really nothing more than ownership
without rights. But I have not been referred to any authority which supports
the observation of Stocker J that it has been doubted that the presumption is a
valid proposition in urban surroundings. Mr O’Brien suggested that Leigh
v Jack (supra) is such an authority, but that is not how I understand the
case.
Moreover,
although an owner is not able to interfere with the use of the soil as a
highway, there is long-established authority that his rights are preserved in
other respects. His ownership of mines and minerals was expressly preserved by
section 27 of the Highways and Locomotives (Amendment) Act 1878 and his right
in law to carry out activities in the subsoil is well recognised: see Halsbury’s
Laws of England, vol 21, para 101. I do not think it is open to me to
disregard the presumption of ownership by the plaintiffs of no 2 oak tree and
the presumption of ownership of no 1 oak tree by the owner of Hampton House on
the basis that the presumption is now a meaningless relic.
As recently as
1981 Stuart-Smith J accepted and applied the presumption in Bridges v
London Borough of Harrow (supra). Unless it can be shown by other
means that the oak trees were owned or controlled by the defendants, the
plaintiffs’ claim must fail on the grounds that oak tree no 2 was owned by them
and that the other tree was owned by the freeholder or the leaseholder of
Hampton House.
The plaintiffs
rely upon section 149 of the Public Health Act 1875 to show that, despite the
presumption of law to the contrary, the two trees were owned by the defendants.
Before I refer to the language of section 149 of the Act of 1875, I should say
that immediately Spencer Drive had been adopted in September 1949 under section
41 of the Public Health Acts Amendment Act 1890 section 149 of the Act of 1875
applied. This section remained in force until the Highways Act 1959, when it
was repealed by the 25th Schedule and replaced by section 117(2) and section
226 of the Act of 1959. I shall refer to the provisions of this Act later.
Section 149
provided:
All streets,
being or which at any time become highways repairable by the inhabitants at
large within any urban district, and the pavements, stones and other materials
thereof, and all buildings implements and other things provided for the
purposes thereof, shall vest in and be under the control of the urban
authority. The urban authority shall from time to time cause all such streets
to be levelled paved metalled flagged channelled altered and repaired as
occasion may require; they may from time to time cause the soil of any such
street to be raised lowered or altered as they may think fit, and may place and
keep in repair fences and posts for the safety of foot passengers. Any person
who without the consent of the urban authority wilfully displaces or takes up
or who injures the pavements stones materials fences or posts of or the trees
in any such street shall be liable to a penalty not exceeding five pounds, and
to a further penalty not exceeding five shillings for every square foot of
pavement stones or other materials so displaced taken up or injured; he shall
also be liable in the case of any injury to trees to pay to the local authority
such amount of compensation as the Court may award.
It is
submitted by the plaintiffs that the effect of the section was to vest the
street and everything forming a part of it, including all trees, whether
planted before or after the vesting, in the urban authority. Emphasis is laid
upon the penal and compensation provisions in the section and it is contended
that the language is such that no one, not even the presumed owner of the
subsoil and therefore of the highway trees, had any power to interfere with
these trees. These circumstances are said to be compatible only with the
highway authority having some proprietary interest in all trees which were
growing in the highway even if they ante-dated adoption. This argument was
advanced in Coverdale v Charlton (supra). The issue in
that case was whether a local board had the power to demise the right of
pasturage by the side of a public highway to which the provisions of section
149 applied. The local board had let the right to the plaintiff with which the
defendant had interfered. The Court of Appeal had to determine the meaning of
the words in section 149 ‘. . . shall vest in and be under the control of . .
.’ in order to decide whether the local board had the power to demise to the
plaintiff a right of pasturage for his cattle. Bramwell LJ at pp 116 and 117 of
the report said:
One
construction of the word ‘vest’ here is that it gives the property in the soil,
the freehold, the surface, and all above and below it; but that would be such a
monstrous thing to say to be necessary for the proper control of the streets by
the local board, that I cannot suppose it to mean such a thing . . . What then
is the meaning of the word ‘vest’ in the section? . . . The meaning I should
like to put upon it is, that the street vests in the local board qua
street; not that any soil or right to the soil or surface vests, but that it
vests qua street. I find some difficulty in giving it a meaning, and I
do not know how far it adds to the words ‘shall be under the control of.’ The meaning I put upon the word ‘vest’ is,
the space and the street itself, so far as it is ordinarily used in the way
streets are used, shall vest in the local board.
Brett LJ at pp
120 and 121 defined the word ‘vest’ in these terms:
What is the
ordinary legal signification of the words ‘vest in’ when applied to the
subject-matter of property? I think its
signification is to give a property in. . . . But when we have decided that the
words ‘vest in’ mean to give a property in, a further question would be in what
does it give the property? That must
depend upon the subject to which those words relate, and that is not land, but
the street; the section does not say that land ‘shall vest in’ but that ‘the
street shall vest in.’
Later, at p
121, Brett LJ continued:
‘Street’
means more than the surface, it means the whole surface and so much of the
depth as is or can be used, not unfairly, for the ordinary purposes of a
street. It comprises a depth which enables the urban authority to do that which
is done in every street, to raise the street and to lay down sewers; . . .
‘Street’, therefore, in my opinion, includes the surface and so much of the
depth as may be not unfairly used, as streets are used.
Cotton LJ (at
p 126) held that the street and the surface vested some property in the soil.
As I understand him, he agreed with the reasoning of Brett LJ that the extent
of the proprietary interest which a highway authority had in a street pursuant
to section 149 is confined to the surface itself and so much of the soil below
it as is necessary for the discharge of the highway functions. The section does
not vest the subsoil. Unless therefore the language in the section can be
construed as vesting ownership of the trees or conferring some proprietary
interest in them upon the highway authority, it must follow that the trees are
owned by the presumed owner of the subsoil. Nevertheless, the question would
still remain whether the highway authority had a sufficient control over a tree
in the highway to make them liable, upon appropriate facts, in nuisance.
In the course
of argument in Coverdale v Charlton counsel for the plaintiff
submitted (see p 112 of the report), as Mr O’Brien submits in
reason of the penal and compensation clause in section 149. Bramwell LJ was the
only member of the court to express an opinion. His observations are clearly obiter.
At p 117, he said:
Does that
mean that the local board have a property in the tree and in the soil? I doubt very much whether that ought to be
the construction put upon that enactment but if it is, it goes a long way to
shew that the local board had such a property as they claim in this herbage.
Even if it does not, if it will not apply to the tree which although surrounded
by the street could be said in one sense to be no part of it, for the public
had no right to pass over where the tree stood; and if it does not apply to a
tree now in existence, but only to the trees the local board may plant or
become otherwise entitled to, why even then it would show that they must have
some property in the soil and its produce . . .
It seems to me
that the decision in Coverdale v Charlton does not assist the
plaintiffs. But section 149 and the obiter dicta of Bramwell LJ were considered
in Stillwell v New Windsor Corporation [1932] 2 Ch 155, a
decision of Clauson J. The plaintiff in that action sought an injunction to
restrain the defendants, a highway authority, from cutting down a number of
trees in a public highway and damages in respect of trees already cut down. The
plaintiff claimed that the trees were placed in ground which formed no part of
the highway. It was found as a fact that the highway was in existence long
before the trees had been planted, that they had been placed in the road by the
highway authority or by the owner of the soil with its permission and that the
trees were situate in the highway. Upon those findings, Clauson J held that the
defendants had the right and the duty to remove trees in the highway which formed
an obstruction to the right of user by the public. At p 164 he said:
My views
which I have been stating as regards the rights and duties of the highway
authority are expressed upon the assumption that the plaintiff is the owner of
the soil of that half of the highway which is adjacent to her property, and,
accordingly the owner of the trees which grow in that half of the highway.
But he then
considered an alternative argument advanced by the defendants based upon the
language of section 149. It was contended that the section had the effect of
vesting the ownership of the trees in the defendants. Clauson J’s observations
were not, as I read the judgment, obiter dicta. At pp 165, 166, in a
passage which I think I must read in its entirety, he said:
The argument
is that these trees, in the circumstances which I have stated and as I find
them to be, are part of the ‘street’, they are things provided for the purposes
of the street, the trees are planted and stand as trees in a street, an amenity
to the street, possibly, as marking off the footway from the carriageway, a
convenience and a protection to the public; and the argument is that under that
section they vest in and are under the control of the urban authority. It is
pointed out that, if the trees are injured, compensation for the injury is to
be paid to the local authority; that would suggest that the property in the
trees would be in the local authority. It is pointed out further that a penalty
is put upon persons who without consent of the local authority wilfully
displace the trees: that would seem to imply that displacing the trees with the
consent or by arrangement with the urban authority would not be an offence,
which again fits in with the suggestion that the effect of the section is to
place the control and, in some sense or other, the property in the trees in the
local authority. In my view that is the effect of the section as regards such
trees as these with which I am here dealing. In my view, for all the purposes
of exercising the rights of the highway authority, these trees are to be
treated as the highway authority’s trees, and if they think it convenient to
remove them it is proper that they should remove them. I am not called upon in
this action to decide to whom the timber would belong when the trees were
removed. In coming to this conclusion I have to face this, that in the case of Coverdale
v Charlton Bramwell LJ, in a judgment which has often been referred to,
expressed some doubt whether the effect of this section was to vest the
property in the trees in the highway authority. It was not necessary for the
purposes of that case to decide this point, but that case did determine this,
as I read it, that there was a right of property, of some kind at all events,
in the herbage growing in the soil of the highway; and I have some difficulty
in seeing why there should not be a similar right of property, however far it
extends, in the other vegetable growth in the soil of the highway which is
constituted by the trees in the case with which I have to deal.
Still
well’s case on the alternative argument is not
authority for the proposition that all trees, whether planted before or
after adoption, vested in the highway authority or that the authority had some
kind of proprietary interest in all such trees pursuant to section 149. The
case was solely concerned with post-adoption trees. I reach that conclusion
from the reference (at p 165) to the effect of the section in relation to the
trees in question (planted after adoption) and from the passage in the judgment
in which, when stating the argument of counsel, it was said that the trees were
provided for the purpose of the street.
The question
whether pre-adoption trees fall within section 149 must turn upon the proper
construction of the language of the section. There are two possible
constructions: first, that what ‘vests in’ and is ‘under the control of’ the
urban authority are the streets, all the other matters referred to in the first
paragraph of the section ‘and other things provided for the purposes thereof’
(that is, for the purposes of the street). Such other things so provided would
include the fences and posts to which reference is made in the second paragraph
and the trees referred to in the third paragraph. In other words, the provision
for a penalty (and in the case of trees, compensation) is only concerned with
the street and all the various things provided for the purposes of the street,
including the trees. On this construction, following the decision in Coverdale
v Charlton, unless the street can be fairly said to extend to the
subsoil, any tree growing out of the subsoil would not be owned by the highway
authority. I should add here that Mr O’Brien submitted, on the basis of this
construction, that Spencer Drive extended to the level at which Mr Chapman said
in evidence he found some of the roots of the trees, about 3 ft. There is no
evidence at all as to the depth of the street and I do not accept this
submission. He also submitted, as I understood it, that the fact that the
‘street’ in Spencer Drive might not extend to the depth at which roots were
found is not relevant. The proper test, according to this argument, is to
consider what soil the defendants might at any time need and they might, under
section 149, have needed a greater depth. Therefore, the right and interest of
the defendants in relation to the subsoil extended below the actual depth of
the street and covered the place where the roots were found. In my view, this
argument is wrong. Upon the evidence, the reality is that the trees were
growing below the depth of the street. If, at a later time pursuant to
statutory powers, the street was lowered to cover the area where the trees are
growing, then it might be said that the street covered the subsoil and the
trees growing in it. The second construction of section 149 is that Parliament
provided that all trees in a street, once it was adopted, should be deemed to
be part of the street and therefore owned by the highway authority: hence the
penal and compensation clause, so worded that not even the presumed owner of
the subsoil could exercise his right in relation to the tree without the
permission of the highway authority. In favour of the latter construction is
the fact that at least with respect to the part of the tree above ground level,
the authority has complete control and rights with respect to all trees,
whether pre-or post-adoption, in a highway. If that part of any tree, whenever
planted, is dangerous then the authority has the right to remove it or
otherwise deal with the danger, even against the presumed owner. It seems to me
that if the injury were caused by such a danger to a member of the public, the
authority would be liable even in relation to pre-adoption trees. But the mere
fact that the highway authority had the right to claim a penalty and
compensation does not assist in showing that the right could be exercised in
relation to pre-adoption trees. As to whether the section does so apply turns
upon the answer to the question what ‘vests in’ and is ‘under the control of’
the highway authority? I think that
these words refer to the street and all the various things provided, including
trees, as part of the street. The trees in this case were not provided for the
purposes of the street: they were planted long before adoption. I hold that
section 149 was not dealing with pre-adoption trees and that the trees in
question did not vest in and were not under the control of the defendants
within the meaning of the language of section 149. The construction that
section 149 applied only to post-adoption trees is consistent with the policy
in section 82 of the Highways Act 1959 which, before it was amended by the
Highways (Miscellaneous Provisions) Act 1961, limited control over trees to
those planted by the highway authority.
I shall refer
briefly to the legislation which replaced section 149. The ‘vesting’ clause was
replaced by section 226(1) of the Highways Act 1959. A change in the wording of
section 226(1) does not affect in any way the meaning to be ascribed to section
149 and therefore nothing turns upon the language of the replacing section. But
the penal clause was replaced by section 117(2) which made it an offence
‘without lawful authority or excuse’ wilfully to damage a tree in a highway.
This change of language seems expressly to recognise the rights of an owner in
relation to a tree, although I quite agree that it is difficult to envisage
circumstances in which in practice such a right could be exercised. The
repealing legislation was passed in full sight of the repealed section and I
can hardly think that Parliament intended that pre-adoption trees had vested in
the highway authority from 1875 to 1959 but that henceforth they should revert
to the owner of the
had always been the case, that is, that the authority never had owned
pre-adoption trees under section 149. In an unsatisfactory and difficult branch
of the law, I conclude that section 149 does not assist the plaintiffs.
But Mr
O’Brien, relying upon subsections (1) and (5) of section 82 of the Act of 1959,
submits that in law the defendants had power to maintain the trees, that they
in fact exercised their rights and that therefore they are liable if it can be
shown that the trees caused a nuisance. Section 82(1) was, as I have already
said, amended by section 5 of the Highways (Miscellaneous Provisions) Act 1961.
As amended, section 82(1) provided that:
Subject to
the provisions of this section, a highway authority may in a highway maintainable
at public expense by them, plant trees and shrubs and lay out grass verges and
may erect and maintain guards or fences and otherwise do anything expedient for
the maintenance and protection of trees, shrubs, grass verges planted or laid
out whether or not by them, in such a highway. A highway authority may alter or
remove any grass verges laid out whether or not by them, in such a highway and
any guard, fence or other thing provided, whether or not by them, for the
maintenance or protection of any tree, shrub or verge in such a highway.
Unamended, the
above provisions applied only to the trees planted by the highway authority.
Amended, the subsection applied to all trees. Section 82(5) of the Act of 1959,
provided:
No tree,
shrub, grass verge, guard or fence shall be planted, laid out or erected under
this section or, if planted, laid out or erected thereunder, allowed to remain,
in such a situation as to hinder the reasonable use of the highway by any
person entitled to the use thereof, or so as to be a nuisance or injurious to
the owner or occupier of premises adjacent to the highway.
Mr O’Brien
accepts on this part of the case that the defendants had no power over the
trees under section 82(1) from the time the highway was adopted in 1949 until
the passing of the Act of 1961, since section 82(1) applied, until amended,
only to trees planted by a highway authority, although he submits that during
the intervening years, the defendants did in fact exercise such control, as I
must consider later.
But he contends
that in law, from the year 1961, the defendants had the right to maintain and
control the trees, that they in fact did so and that they are therefore capable
in law of being held liable in nuisance for damage caused to an adjoining owner
by the roots. Mr O’Brien strongly relies upon obiter dicta of Stocker J
in Solloway v Hampshire County Council (supra) in which he
said at pp 28, 29 and 30 of the transcript:
The second
line of argument is that the defendants’ rights and liabilities derive solely from
section 82 of the Highways Act of 1959 as enlarged by the Highways
(Miscellaneous Provisions) Act 1961.
There follows
a summary of section 82(1) as amended and section 82(5). The judgment then
continues:
The tree in
the present case before me was not planted by the defendants, so as to enable
them to allege breach of statutory duty: but the terms of subsection (5) seem
to negate the proposition that an adjoining owner must be the owner of the tree
or be responsible for it.
There is then
a consideration of authority not relevant for present purposes.
In my view,
the issue with regard to the position of the defendants is whether or not they
have sufficient interest in and control over the tree to make them responsible
for nuisance created by it. Even if it be correct (and, for my part, in modern
conditions I rather doubt the proposition), that a highway authority does not
own the trees planted in the pavement or the verges where they alone have the
power to maintain the trees and if damage or obstruction to the highway is
caused, to cut them down, then this is sufficient control over the tree to make
them liable for nuisance if such occurs. This view, in my judgment, is
supported by the statement in the 17th ed of Salmond on Torts at p 325,
‘Liability is dependant on control.’
Indeed section 5 of the 1959 Act prohibits the planting of trees which
cause a nuisance to adjoining owners, and I can see no valid reason to suppose
that such a duty does not exist, either under the statute and independently of
it where the trees are taken over by the highway authority, which previously
existed in the highway. It seems to me that the legislation cannot be intended
to make the highway authority liable for nuisance to adjoining owners arising
from trees planted by them but not for a similar nuisance arising from trees
for which they become liable under the 1961 Act.
Mr Scott Baker
submitted that the language of section 82(5) was not amended by the Act of 1961
with the result that there is no prohibition of the creation or continuation of
a nuisance by pre-adoption trees which might cause damage to an adjoining
owner. The argument is that section 82(1), unamended, applied only to trees
planted by the highway authority and that since section 82(5) was not amended
it operates only to prohibit such trees from being a nuisance. This would be a
surprising result. It would mean that, by some legislative lacuna, a highway
authority would by reason of section 82(1) as amended, have power to do
everything expedient for the maintenance and protection of all trees, whether
planted before or after adoption, but that they would only be prohibited from
causing or permitting post-adoption trees to be a nuisance to an adjoining
owner. It would also mean that despite the power to maintain all trees, the
highway authority would have no duty to prevent a pre-adoption tree from
hindering the reasonable use of the highway by the public. I cannot think that
when Parliament gave a highway authority power over pre-adoption trees by the
amendment of section 82(1), it was intended to exclude such trees from the
provisions of subsection (5). The relevant words of section 82(5), after
Parliament passed the amending legislation, are ‘. . . or, if planted . . .
thereunder’ (that is under subsection (1)). I think that the word ‘thereunder’
referring back to subsection (1) means subsection (1) as amended. Anyone
reading subsection (5) of the Act of 1959 has to look back to subsection (1)
and he then sees that the latter amended subsection deals with all trees,
whether planted before or after the road was adopted. On this basis, subsection
(5) must apply to all trees, pre- and post-adoption. The result is that the
defendants have the power to maintain all trees and are prohibited from
allowing them to become a nuisance. In these circumstances it seems to me that
a highway authority has sufficient control over all trees and a sufficient duty
with respect to such trees to make it liable for nuisance at common law. If I
am wrong in my interpretation of the meaning of subsection (5), the effect of
subsection (1) as amended standing alone still has to be considered. Mr Scott
Baker submitted, correctly in my view, that the subsection creates a power but
not a duty to act. He contends that the power is restricted to highway purposes
and therefore does not extend beyond the confines of a highway, and that a mere
power for highway purposes is insufficient to ground a liability in tort to an
adjoining owner or occupier. But what is the reality? The adjacent owner or occupier owns the
subsoil but his rights in relation to trees cannot in practice be exercised. It
is true that, under section 117(2) of the Act of 1959, as I said earlier, he
might assert a lawful authority or excuse if charged with damaging a tree. But
how could he exercise such a right in relation to the roots without disturbing
the surface of the highway for which, so far as I can see, he has no lawful
justification or excuse? In Halsbury’s
Laws of England (vol 21, para 101) to which I have referred, it is stated,
citing authority, that the owner of the soil of a highway may not break open
the soil or interfere with the use of it as a highway. He could, if he became
aware of the mischief, cut the roots where they entered his land, but I think
that most householders are unaware, and certainly these plaintiffs were
unaware, of the propensities of the roots of the trees. Mr Scott Baker relied
upon the powers of the owner of the subsoil referred to in para 101 of Halsbury
as an indication of the extent of the owner’s rights. It is there said that the
owner may mine minerals or tunnel under the road but the rights of the owner
cannot be asserted in relation to any part of a tree outside the confines of
his property whereas the powers of the highway authority can be exclusively
exercised in relation to the whole tree, even to the extent of cutting it down.
I entirely agree with Stocker J when he said (at p 29 of the transcript in Solloway’s
case) that highway authorities have sufficient interest in and control over a
highway tree to make them liable for a nuisance created thereby, bearing in
mind that they alone have the power to maintain the tree.
I hold that
the fact that the plaintiffs in this case are presumed in law to have been the
owners of the trees is not a bar to an action by them in nuisance against the
defendants who were in occupation of the street, save for the subsoil beneath
it, who were in control of the trees and who, as I shall consider later, in
fact and, since 1961, with legal authority, exercised control over them.
Before I
consider the submissions on the facts and upon the precise nature of liability
in nuisance, there are two further matters I must mention. First, my attention
was drawn by Mr Scott Baker to section 14 of the GLC (General Powers) Act 1974
which he submitted applied for the first time the provisions of section 82 of
the Act of 1959 to the defendants. If that is right, it might be said that the
defendants had in law control over the trees for a very short period before the
damage was caused in 1976. The relevant part of section 14 provides:
Subject to
subsection (4) of this section, section 82 of the Act of 1959 shall have
effect, in its application to Greater London with the following modifications .
. .
As I read the
language, it merely provides for a modification of an existing duty in relation
to Greater London; it does not provide that section 82 is to apply for the
first time. In any event, section 82 applies to a ‘highway authority’ and the
defendants were certainly such in 1959. But even if the provisions of section
82 were not applied to the defendants until 1974, the defendants had in fact,
for some time, exercised such powers. The only other relevant part of the Act
of 1974 is section 14(1)(c) which provides:
. . . (c) the
power in subsection (1) . . .
of section 82
to alter or
remove any grass verge shall include a power to cut down or remove any tree . .
.
From 1974, the
defendants had express power to cut down the trees, although there are other
means to restrict the capacity of the trees to extract water from the subsoil
which were within the powers of the defendants and known to them, as I shall
consider later.
Secondly, Mr
O’Brien submitted that, on the facts, the defendants exercised such
uninterrupted dominion over the trees as to lead to the conclusion that they
enjoyed all the rights of ownership for the necessary period of 20 years and so
acquired ownership by prescription. I was not referred to any authority to
support this argument and I am not prepared in these circumstances to accept
such a conclusion from the facts, assuming them to be established. What the
effect in law might be of the fact that from 1949 to 1961 the defendants had no
legal power in relation to trees under section 82(1) but thereafter had such power
is a matter of conjecture.
I must now
consider the evidence relating to the question whether in fact the defendants
exercised their powers to do what was expedient for the maintenance or
protection of trees and in particular of the two oak trees. The evidence is
derived solely from Mr Frederick and numerous documents.
As parks
services manager, Mr Frederick is, and was since 1959, responsible for the
whole of the soft landscape within the borough of Barnet. According to him,
there are about 60,000 street trees of which 1,000 are ancient or pre-adoption
trees. I shall consider the significance of this fact in relation to other
evidence later. Since about 1969 or 1970, the defendants had a tree programme
whereby all the trees in the borough were inspected. The defendants did in fact
maintain street trees before that time, but the advance of Dutch elm disease
required particular attention to the trees. Once a year the responsible officer
was required to inspect each road in his district, travelling along the road in
a motor car and looking for any defect or unusual feature in a tree which might
require more detailed inspection and, if necessary, work upon it. Although
records of inspection for defects were not kept, records of findings which
might give rise to work on a tree were kept. These records were kept from the
late 1960s. I shall refer to some of them later. Defects revealed in the course
of everyday inspection were dealt with and sometimes very quickly; for example,
a danger arising from an overhanging branch. The size of the department
involved in this work increased in the early 1970s with the advance of Dutch
elm disease. Mr Frederick said in evidence that his department continues to
expand because of the provisions of the Highways (Miscellaneous Provisions) Act
1961 and that since that time the defendants are responsible for the safety of
all trees in the soft landscape. This evidence incidentally shows that the
defendants since 1961 regarded themselves as responsible for pre- and
post-adoption trees. According to Mr Frederick, the policy was not the same for
all street trees. Ancient trees were dealt with when his department received a
complaint, no doubt because the defendants considered that they belonged to
adjacent owners. Other street trees were treated, as he put it in evidence,
‘more generously’, that is, at more frequent intervals. On this evidence, it is
clear to me, and I find, that for a number of years it was the practice of the
defendants to maintain all the trees in the streets under their control and to
exercise power over them. But was this power exercised by the defendants qua
highway authority only, in the sense that it was not used in relation to
adjoining owners? Clearly not: that
follows from the evidence of Mr Frederick that he acted in relation to ancient
trees when the department received complaints from adjoining owners. It follows
also from a number of other documents put in evidence. The defendants have in
their possession a number of documents relating to complaints from adjoining
owners and which, from the examples produced, show that the complaints were
fully investigated and that, if necessary, steps were taken to reduce the risk
of damage to the owners. P4 refers to Mr Hoffman, who was the owner or occupier
of 3 Spencer Drive, the house next door and to the south of the plaintiff’s
house. Mr Hoffman had been complaining of subsidence since 1974. The
investigation related to oak tree no 2. P4 refers to investigations carried out
in November 1974, well before the complaint in the present case, and also in
July 1983. The document contains various questions to be answered in relation
to the tree: for example, its height, the breadth of the crown, the extent of
overhang in relation to the property, the year of planting and condition of the
tree. The inspector was required to make a report in the document. In 1974, he
wrote:
3 large oak
trees
the third no
doubt being the furthest northern tree to which I referred earlier.
No signs of
root activity on the Council side of the boundary. The front garden is made up
of flower beds and rose beds. There are small cracks to be seen in the driveway
to garage.
The entry in
P4 is also material to the state of knowledge of the defendants of the risk of
damage from encroaching tree roots which I must consider later. But it also
clearly shows that the defendants did not confine the maintenance of the trees
to their functions as a highway authority. Indeed, Mr Hoffman appears to have
made a further complaint because the inspector reported in P4 in July 1983:
Irrespective
of the fact that a court action re responsibility re root damage to property
from these trees is due for hearing in February of next year (1984), I feel the
complaint re 2 of these requiring pruning is well justified. The necessary
pruning should be carried out.
A comment at
p2 of P4 dated July 12 1983 states:
Trees
requiring pruning. Almost touches building.
According to Mr
Frederick, pruning was carried out, the lower branches being removed and the
overhang cut out. Pruning is a method of reducing the demand of a tree for
water. But the point of these documents on the present issue is that they
clearly establish that the defendants did not confine their maintenance of
street trees to their strict function as highway authority. Mr Frederick
accepted in cross-examination that the defendants handled the complaint about
no 2 oak tree as if they had planted it and that they did not seek permission
from the owner or occupier of 1 Spencer Drive to do the work of pruning. The
defendants treated the tree as belonging to them. I might add that a further
document, P10, relating to 19 Broadfields Avenue, Edgware, shows a similar
investigation in relation to an identical species of oak tree in January 1973.
The tree was said to be 140 to 150 years old and the defendants dug a trench to
investigate the roots in order to find out if they were likely to cause
settlement to the house owing to moisture of the soil.
I must now
consider the submissions of counsel as to the legal basis of liability in nuisance.
The burden of Mr O’Brien’s argument is that the present law is comprehensively
stated in the judgment of Lord Goddard CJ in Davey v Harrow
Corporation [1958] 1 QB 60 where he said, delivering the judgment of the
court, at p 71:
In our
opinion, once it is established that encroachment by roots is a nuisance, it
must follow that if damage is thereby caused, an action on the case will lie.
To this, however, must be added that no action will lie unless it is shown that
the offending trees were planted and were not self-sown, and that no action can
be maintained where the damage is caused by natural growth or natural causes.
Mr O’Brien
also relied upon a decision of the Privy Council in Morgan v Khyatt
[1964] 1 WLR 475 where, at p 476, Viscount Simonds is reported as saying, in
the course of argument, that the Court of Appeal in that case were right to
follow Davey v Harrow Corporation which the Board considered was
correctly decided. He has also relied upon Smith v Giddy [1904] 2
KB 448, a case in the Divisional Court concerned with damage caused by trees
growing on the defendants’ premises the branches of which overhung the
plaintiff’s premises and interfered with the growth of the plaintiff’s trees.
Mr O’Brien relies upon the judgment of Kennedy J where he said, at p 451:
If trees
although projecting over the boundary are not in fact doing any damage, it may
be that the plaintiff’s only right is to cut back the overhanging portions; but
where they are actually doing damage, I think there must be a right of action.
In such a case I do not think that the owner of the offending trees can compel
the plaintiff to seek his remedy in cutting them.
Mr O’Brien
cites this passage to show that where there is a right to abate, there is a
right to damages and that all that the plaintiff need show is damage caused by
an encroaching tree. I do not consider that these submissions can stand in the
light of Leakey v National Trust (supra) and the decision of the
Court of Appeal in Solloway v
on appeal from the decision of Stocker J to which I have referred. The only
question for decision was whether reasonable foreseeability of the risk of
damage from encroaching roots could properly be inferred from the facts found.
It was unnecessary for the Court of Appeal to consider the obiter dicta
of Stocker J to which I have referred and no opinion is expressed in the
judgments.
*Editors
note: Also reported at (1981) 258 EG 858, [1981] 1 EGLR 129.
Leakey v National Trust [1980] QB 485 was not a case which was
concerned with damage caused by an encroaching tree. The plaintiffs claimed
damages and an order for abatement arising out of damage caused to them on their
adjoining properties from falls of detritus from a natural mound on the
defendant’s land. It was the defendants’ case that there was no liability in
English law for damage caused by ‘natural mineral material’ encroaching or
threatening to encroach on to adjoining land. The defence was framed in this
way to avoid the consequences of the decision in Davey v Harrow
Corporation by which it was held that such liability would ensue as a
result of damage caused by an encroaching tree. Following the decision of the
Privy Council in Goldman v Hargrave [1967] 1 AC 645, a case in
negligence and not in nuisance, the court held that an occupier of land owed a
general duty of care to a neighbouring occupier in relation to hazards
occurring on his land, whether they were natural or man-made. The court
followed Davey v Harrow Corporation but with the proviso,
expressed by Megaw LJ at p 522 of the report in this way:
. . . I have
no hesitation in preferring the latter decision
Davey’s
case
as stating
the law as it now is: subject to the proviso that the duty arising from a
nuisance which is not brought about by human agency does not arise unless and
until the defendant has, or ought to have had, knowledge of the existence of
the defect and the danger created thereby.
The proviso
derives from the dissenting judgment of Scrutton LJ in Job Edwards v Birmingham
Navigation Co [1924] 1 KB 341 and from Sedleigh-Denfield v O’Callaghan
[1940] AC 880.
By ‘defect’,
Megaw LJ meant in the present context reasonable foreseeability of the encroachment
of the roots. Shaw LJ, expressing some doubts, and Cumming-Bruce LJ agreed with
the judgment of Megaw LJ.
Leakey v National Trust is clear authority for the proposition that
the duty in nuisance does not come into existence unless reasonable foreseeability
can be inferred from the facts. Morgan v Khyatt and Smith
v Giddy were cited in argument but are not considered or referred to in
the judgments. The latter case, in so far as it supports Mr O’Brien’s argument,
cannot stand with the decision in Leakey v National Trust. The
court clearly accepted Morgan v Khyatt subject to the proviso of
reasonable foreseeability. Mr O’Brien submitted that Leakey v National
Trust was not a tree root case, that the observations of Megaw LJ were obiter
and that in such cases reasonable foreseeability is not an element to be
considered. He suggested that cases involving tree roots are anomalous. I can
see no logical reason why this should be so, but in any event it seems to me
that the decision in Leakey v National Trust clearly covers
damage caused by encroaching tree roots although I agree that the observations
were obiter. But any doubt is resolved by the judgments of the Court of Appeal
in Solloway v Hampshire County Council (1981) 79 LGR 449, the
facts of which I need not repeat, save to say that it was directly concerned
with damage caused by tree roots encroaching from the highway. At p 452 of the
report, Dunn LJ, having cited the judgment of Stocker J that there must be
reasonable foreseeability of the risk that encroachment will cause damage,
continued:
That
formulation of the law, although it had been contested below, was accepted in
this court by Mr Smyth for the plaintiff. I am bound to say that at first I had
doubts whether it was an accurate formulation of the law because of Davey
v Harrow Corporation . . ., a decision of this court which makes no
reference to foreseeability as an element in the tort of nuisance, where the
nuisance is caused by the extrusion of tree roots or branches, but on further
consideration I agree that Mr Smyth was right to accept the formulation of law
as made by the judge.
Dunn LJ then
referred to the passage in Megaw LJ’s judgment at p 522 which I have already
read and he concluded:
I would
accept the proviso as stated by Megaw LJ as applicable to the facts of this
case.
Stephenson LJ
and Sir David Cairns agreed. Solloway v Hampshire County Council
is not a case in which the question whether reasonable foreseeability is a
necessary ingredient in this type of nuisance was accepted simply because of
the concession by counsel. The court actually considered the validity of the
concession before accepting it. In these circumstances, I am bound by the
decision in Solloway v Hampshire County Council to consider
whether the defendants in the present case knew or ought to have known of the
encroachment of the roots. If that be established, I shall consider the scope
of the duty as defined in Goldman v Hargrave and Leakey v National
Trust and the facts in relation to such duty.
Evidence was
given of the general propensity of trees to extract water from the soil and
knowledge of the consequences of such risks. Dr Biddle said in
cross-examination that the dry spell in the early 1970s culminating in the hot
summer of 1976 had the result of teaching people a lot about tree roots. He
said that such a dry period had not occurred for 200 years and that there was
little reason to suspect the necessity to cater for such dry conditions. He
further said that although, as he put it, oak trees are at the top of the
league for thirsty trees, that was the result of the experience of 1976.
Mr Scott Baker
relies upon this evidence as indicating that there was not a general knowledge
of the risks involved, but Dr Biddle gave further evidence on these issues when
he was re-examined. On the issue of knowledge of the propensity of tree roots,
if they encroach on to adjoining property, he said that any borough tree
officer would know that roots cause damage and that that was most certainly the
case in London. The correlation between encroaching tree roots and the
likelihood of damage was well known. He also said that local authorities would
have knowledge of the propensity of oak trees which, far from being rare, are
quite common in garden suburbs. In October 1969, the National House-Building
Council published a document (P7) entitled: ‘Root damage by trees — site of
dwellings and special precautions.’ It
was revised in April 1974. The document contained advice about the distance
which various trees, including oaks, should be planted away from dwellings: it
depends upon the height of the particular type of tree. P7 also contained this
warning:
In areas of
heavy shrinkable clay, the disruption of foundations due to the presence of
trees is, in the experience of NHBC, one of the most common and costly types of
major structural defect. What happens is that the tree takes up ground moisture
from under a part of the foundations. The foundations then subside unevenly due
to ground shrinkage. Drains can be affected similarly.
In
re-examination, Dr Biddle also referred to the Building Research Station Digest
63 (P8) published in October 1965. It contained this advice at p 3:
Clays which
shrink on drying and swell again when wetted are commonly responsible for the
movement of shallow foundations.
And at p 4:
A building on
shallow foundations close to vegetation is therefore liable to seasonal
movements or long term settlement, depending on the root growth. To some extent
the building protects the clay beneath it from seasonal drying and wetting, and
movement is more likely under the outer walls and corners.
Dr Biddle said
that the Digest of the Building Research Station had a very wide circulation
and that there were other warnings in relation to tree roots. The plaintiffs
also called Mr Pryke, the chairman of Pynford Ltd, the company which carried
out investigations at the plaintiffs’ house. He was asked when information
about the behaviour of tree roots was disseminated, a question which he found
it difficult to answer. But he did say (and his experience is very wide) that
hundreds of claims have been submitted to local authorities relating to
underpinning from such causes since 1940. All this evidence satisfies me that
for a number of years there was widespread knowledge of the propensity of tree
roots, including those of oak trees, to cause damage to buildings. Mr Frederick
gave evidence on the relevant issues. In evidence in chief, he said that before
1976 the defendants and he were aware that there was a relationship between
trees and buildings and that root systems will enter a garden and that they
could be adjacent to a building. He said at that stage of his evidence that he
was not aware that the roots of a tree could damage property to the extent now
shown by research. In cross-examination, Mr Frederick was asked about his state
of knowledge about oak trees. He was aware that the period from 1970 was a dry
period and he said that by 1974 he knew that oak trees might, in dry conditions,
give rise to damage. In re-examination, he sought to qualify this answer by
saying that he knew that with oak trees of the size and dimensions of the trees
with which I am concerned, there might in the right circumstances be some form
of damage, but he thought that they
qualification. Mr Frederick stated in cross-examination that he knew that the
roots extended for about the height of the tree; he said that that was
something which he would ordinarily anticipate. He said that the roots of oak
trees are exceptionally deep and that, if they extended as far as he expected,
they would go under the foundations of the house. He agreed that he would have
guessed that the foundations of the house were about 3 ft deep. He accepted
that one of the threats from a tree might be danger to the foundations of a
house. He added that he and his staff have acquired knowledge about foundations
and that he knew of P8 (the building digest) and other works drawing attention
to the liability of clay to shrink and affect the foundations of a house and
the effect of tree roots in these conditions. He said specifically that he knew
or he could infer that there was a possibility of danger to a house of which the
owner was not likely to know unless he were an arboriculturist.
Mr O’Brien
relied upon the judgment of His Honour Judge Ruttle in Nagioff v London
Borough of Barnet, given in the Westminster County Court on October 22 1981
and in which he applied the dictum of Stocker J in Solloway’s case. That
was a case in which damage was caused by the roots of trees aged about 130 to
150 years old. They were, as I understood it, pre-adoption trees. Mr O’Brien
draws attention (transcript p5) to a passage in which the learned judge said:
It is common
ground that in 1974, and particularly in 1975 and 1976, subsidence caused by
encroaching tree roots was widespread and that knowledge of the damage from
that cause then became known generally to a far greater extent than previously.
I do not think
that a concession of knowledge as early as 1974 in another case is a proper
basis upon which to decide the facts in this case. But in the light of the
whole of the evidence in the present case, I am satisfied that the defendants,
generally speaking, were aware or ought to have been aware of the risks caused
to adjoining buildings by the encroachment of the roots of trees and of oaks in
particular well before 1976 and that by 1974 they knew, through Mr Frederick,
that oaks might cause damage in dry conditions. As to the state of the
defendants’ knowledge generally, quite apart from Mr Frederick’s evidence, P10
is a very strong indication. At p 2 of P10 it is stated:
In front of
the house . . . a trench has been dug . . . In it can be seen roots which arise
from the oak tree . . . The tree is, I estimate, about 140-150 years old and
not in a vigorous state of growth. The roots would not physically cause
settlement but indirectly, due to moisture absorption, may cause shrinkage and
expansion of the soil.
I am also
entirely satisfied that the defendants had specific knowledge of the risks
involved with both oak trees and that they were aware of the risks involved.
The entry in P4 by the inspector in November 1974 shows, in my judgment beyond
argument, that the defendants appreciated the risk of damage from the roots of
no 2 oak tree and, through the inspector, actually saw and appreciated such
damage; hence the comment that there were no signs of root activity on the
defendants’ side but that small cracks were observed in the drive to the
garage. A further memorandum was made (P9) about the inspection in November
1974. P9 is the covering sheet for P4. It is a photostat of a handwritten
document and it is poorly reproduced. But the language appears to be this:
You will see
in addition to the oak trees referred to, there is a young silver birch some 4
metres from the property would (sic) add additional extraction of moisture and
ground shrinkage. There is no doubt oak roots would be found but so I imagine
will others, when the inspection and root examination made.
Mr Frederick
accepted in cross-examination that he read and signed this memorandum. It
proves an appreciation of the risk of the extraction of water by the activity
of roots and, looking at P4, p1, knowledge of damage. Mr Frederick when
cross-examined about P9 said, according to my note:
Moisture
extraction by roots was in my mind and I was making the point that other trees
the silver
birch
might be
doing it
causing damage
under no 3. I
knew that no I oak tree was larger than no 2 because it had more vegetation. I
saw no I oak tree. It was obviously more vigorous. Therefore the danger to 1
Spencer Drive was greater than no 3. I knew that the danger from roots could
remain insidious. All that was apparent to me in 1974.
I find that the
defendants could reasonably have foreseen the risk of damage to 1 Spencer Drive
and its foundations from the roots of both oak trees and that they knew or
ought to have known that the roots had penetrated into the property and under
the foundations.
I must now
consider the scope of the duty in nuisance. This was considered, by reference
to Goldman v Hargrave (supra), by Megaw LJ at p 524 of the
report in Leakey v National Trust (supra). He said:
This leads on
to the question of the scope of the duty. This is discussed, and the nature and
extent of the duty is explained in Goldman v Hargrave at pp 663,
664. The duty is a duty to do that which is reasonable in all the
circumstances, and no more than what, if anything, is reasonable, to prevent or
minimise the known risk of damage or injury to one’s neighbour or to his
property. The considerations with which the law is familiar are all to be taken
into account in deciding whether there has been a breach of duty, and, if so,
what that breach is, and whether it is causative of the damage in respect of
which the claim is made. Thus, there will fall to be considered the extent of
the risk; what, so far as reasonably can be foreseen, are the chances that anything
untoward will happen or that any damage will be caused? What is to be foreseen as to the possible
extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise,
the happening of any damage? If it is
practicable, how simple or difficult are the measures which could be taken, how
much and how much lengthy work do they involve, and what is the probable cost
of such works? Was there sufficient time
for preventive action to have been taken, by persons acting reasonably in
relation to the known risk, between the time when it became known to, or should
have been realised by, the defendants and the time when the damage
occurred? Factors such as these, so far
as they apply in a particular case, fall to be weighed in deciding whether the
defendant’s duty of care requires, or required, him to do anything and, if so
what.
Megaw LJ, at p
525, then referred to a passage in the opinion of Lord Wilberforce in Goldman
v Hargrave [1967] 1 AC 645 at p 663, where he rehearsed the contentions
of the parties and, at p 526, concluded:
The criteria
of reasonableness include, in respect of a duty of this nature, the factor of
what the particular man — not the average man — can be expected to do, having
regard, amongst other things, where a serious expenditure of money is required
to eliminate or reduce the danger, to his means. Just as, where physical effort
is required to avert an immediate danger, the defendant’s age and physical
condition may be relevant in deciding what is reasonable, so also logic and
good sense require that, where expenditure of money is required, the
defendant’s capacity to fund the money is relevant.
I now finally
turn to the facts of this aspect of the case applying the various criteria
contained in the two passages which I have just read.
I have already
found as a fact that the defendants in 1974 knew or ought to have known of the
risk of damage arising from the encroachment of the roots of both trees. I am
satisfied that the risk was appreciable and that there was a substantial chance
that damage of a serious nature to the house and its foundations would occur.
As I have already said, Mr Frederick accepted that by 1974 he knew that in dry
conditions oak trees might give rise to damage. He knew that the dry conditions
continued into the summer of 1975. It was clear on the evidence that it was
reasonably practical for steps to have been taken at least to minimise the
risk. Dr Biddle referred to various steps which could have been taken such as
cutting down the trees or putting in a root barrier or pruning the roots or by
pruning the tree itself. With respect to the suggestion of cutting down the
tree, there are two objections. One is the loss of amenity to the neighbourhood
and to the public and, on the evidence in this case, it is a powerful factor in
favour of the defendants. The other objection is that if the tree is cut down
it causes or may cause a condition known as ‘heave’. In the absence of the tree
absorbing the water, the water builds up in the soil causing the ground to
swell and this in turn may cause damage to property. Dr Biddle thought that the
risks due to heave were exaggerated and are not really very great but there was
other evidence to the contrary. On the whole and particularly bearing in mind
the amenity value of the continuing life of the trees, the indications are
rather against destruction of the trees. As to root pruning or the erection of
a root barrier, Dr Biddle described them as theoretically possible but in the
case of the former, the roots simply grow again and, in the case of the latter,
it is probably necessary to dig trenches, and fill them up with concrete. This,
as Dr Biddle pointed out, might very well affect public services in the soil.
He said that a barrier could not be used and I so find. But pruning the tree is
wholly practicable. Indeed, it was carried out in 1983 on no 2 oak tree. It has
the effect of removing the leaves and cutting down the demand for water. It is
true that Dr Biddle said when cross-examined that the full benefits of pruning
the tree were not appreciated before 1976, but Mr Frederick made it clear that
there was no difficulty in reducing the crowns of the trees and pruning them.
He said:
I knew that
cutting away the crown reduces the demand for water until the tree regenerates.
He also said:
Had this not
been an ancient tree, I would have taken steps in 1974 and certainly before
1976.
He accepted
that it would have been wise to have reduced the leaf cover in the period
1975-76. The reason why steps were not taken was the belief that the defendants
had no legal responsibility for an ancient tree. Mr Frederick said that the
principal reason why nothing was done was because he thought that the oaks were
ancient trees and that had they not been ancient trees, he would have taken
steps in 1974 and certainly before 1976. I find that in 1974 the defendants
were aware that crowning, lopping and thinning trees reduced the water intake
and therefore the risk of damage from encroaching roots. Mr Frederick was
minded to say at one stage of his evidence that the financial burden which such
steps would cast upon the defendants would have been intolerable if they had to
prune all the ancient trees in the borough. But this view really disappeared in
cross-examination. He said that in practical terms there was no difficulty in
reducing the crowns. The defendants had the money and the finance. Clearly the
work was within the defendants’ resources and I so find. He also said that oaks
form a very small proportion of street trees. The vast majority of the latter
are smaller and more recently planted. I think that the risk that the
defendants would be involved in a large-scale and financially burdensome
operation was overstated by Mr Frederick at various stages of his evidence. The
fact is, as appears from P4 and P9, the defendants were on specific notice as
to the dangers of the two trees. In cross-examination, Mr Frederick said that
if there was root activity in the drive of 3 Spencer Drive (which there clearly
was as the defendants in fact knew or certainly ought to have known), then
there would be likely to be root activity in the drive of the plaintiffs’ house
and that such activity would extend approximately to the length of the tree.
According to P4, oak tree no 2 in 1974 was 14 to 17 m high. Mr Frederick
accepted that no 1 oak tree was more vigorous. The steps to minimise the risk
which I am satisfied could have been taken well in time and would have been
effective to remove or diminish the risk, would not have cast any great burden upon
them. The defendants knew the risk whereas the plaintiffs did not. Mr Russell
never gave a moment’s thought to the roots of the trees outside his house. Mr
Frederick agreed that the owner of a house would not have his knowledge of the
danger unless he were an arboriculturist. Mr Akroyd, the defendants’ engineer,
said in terms that he would expect a local authority to know about the capacity
of clay to shrink but not a house-owner. Mr Scott Baker submitted that the
house and the trees had existed side by side without trouble for many years,
and he relied upon evidence that knowledge about the roots of trees had
developed since 1976, but I am satisfied that this is a case in which the
defendants knew of the propensities of tree roots, they were aware of the risk
involved with the trees in question, they had specific notice that one of the
trees was actually causing damage, they appreciated that the other might well
do the same, they could easily have taken steps in time to avoid the damage
which they knew was likely to arise in a dry period, but they did nothing. The
defendants had ample notice of the prolonged dry spell in the early 1970s and
they had ample time to act. In my judgment, they are liable to the plaintiffs
in nuisance.
Finally, I
must consider the plaintiffs’ claim in negligence. As I said at the beginning
of this judgment, I did not hear very much argument on this as an issue
separate from the claim in nuisance. Upon the basis of Leakey v National
Trust, Mr Scott Baker submitted that there was now no difference between
the law of nuisance and of negligence in this type of action. If that were so,
having found liability in nuisance, the defendants would automatically be
liable in negligence. But I do not think that the effect of Leakey’s
case or Goldman v Hargrave is to abolish all differences between
the two causes of action in this type of case or, at least, I am not prepared
so to hold without more detailed argument and reference to authority.
On the claim
in negligence, the element of reasonable foreseeability of the risks of damage
from a state of affairs of which the defendants knew or ought to have known is
present: so also is the failure to take reasonable steps to obviate or reduce
the risk. The factor of the defendants’ resources is relevant in nuisance on
the basis of Leakey v National Trust, but this subjective element
is not usually present in negligence although Lord Wilberforce in Goldman
v Hargrave (at p 663 of the report) held it to be material in an action
in negligence arising from natural or even man-made hazards. All I need say is
that it seems to me that, on the facts as I have found them, the defendants
owed a duty of care in negligence of which they were in breach. There must be
judgment for the plaintiffs upon both causes of action for damages to be
assessed by an Official Referee.
