Trees — Tree root damage — Adopted highway — Nuisance and negligence — Whether property in trees vests in highway authority — Whether highway authority liable to adjoining landowners — Whether compensation payable by highway authority
In 1989 the building owned by the
plaintiffs suffered subsidence damage caused by the roots of an oak tree
growing in the verge of the adjacent highway. The highway was originally
maintainable by the residents until it was later vested in the defendant highway
authority. The court below upheld the plaintiffs’ claim for damages on the
basis that the highway authority had a duty to maintain the tree under section
96(1) of the Highways Act 1980, they had sufficient interest to be liable in
nuisance and negligence. The defendants appealed contending that in the absence
of a claim under section 96 for breach of a statutory duty, there could be no
liability.
adoption of a highway, sufficient property in post- and pre-adoption trees also
vests in the highway authority to ground an action for nuisance, both at the
suit of the user of the highway who is injured as a result of the
dangerous condition of the tree, and also at the suit of an adjoining owner who
suffers damage to person or property, provided the damage was reasonably
foreseeable.
The following cases are referred to in
this report.
Bridges v Harrow London Borough [1981] 2
EGLR 143; (1981) 260 EG 284
Coverdale v Charlton (1878) 4 QBD 104
Geddis v Bann Reservoir Proprietors
(1878) 3 App Cas 430; LR 7 HL 430
Goodtitle v Alker (1757) 1 Burr 133
Leakey v National Trust for Places of
Historic Interest or Natural Beauty [1980] QB 485; [1980] 2 WLR 65; [1980]
1 All ER 17; (1979) 78 LGR 100, CA
Russell v Barnet London Borough Council
(1984) 83 LGR 152; [1984] 2 EGLR 44; 271 EG 699
Solloway v Hampshire County Council (1981)
79 LGR 449, CA
Stillwell v New Windsor Corporation [1932]
2 Ch 155
Stovin v Wise [1994] 1 WLR 1426; [1996]
AC 923; [1996] 3 WLR 388; [1966] 3 All ER 801, HL
Turner v Ringwood Highway Board (1870)
LR 9 Eq 418
This was an appeal by the defendants,
Hampshire County Council, against the decision of Mr Recorder Meggeson, who
awarded the plaintiffs £78,823.91 by way of damages and interest in respect of
damage caused to the plaintiffs’ property by tree root damage.
Simon Russen (instructed by the solicitor
to Hampshire County Council) appeared for the appellants; Dermod O’Brien QC and
John McDonald (instructed by CA Norris, of Southampton) represented the
respondent plaintiffs.
Giving judgment, STUART-SMITH LJ
said: This is an appeal from a judgment of Mr Recorder Meggeson given on April
15 1996 in Southampton County Court, whereby he awarded the plaintiffs a total
of £78,823.91 by way of damages and interest against the defendants.
The plaintiffs are the owners of a
semi-detached house, 213 Highlands Road, Fareham; the other part of the house
is numbered 211. This house was built in 1954. The defendants are the highway authority
for Highlands Road. In the verge of the highway outside the boundaries of nos
211 and 213 is an oak tree. It is between 170 and 190 years old. If the
dividing line between nos 211 and 213 is extended out to the centre of the
road, the tree is on the 211 side of the line. Highlands Road is an ancient
highway originally maintainable by the inhabitants at large, subsequently
vesting in the defendants or their predecessors. It is now accepted that the
tree was planted and grew after the highway had been dedicated to the public.
In 1989 during a very dry summer the
plaintiffs’ house began to suffer serious structural damage. It was the
plaintiffs’ case that the damage was caused by subsidence due to moisture
extraction or dehydration of the clay soil by the roots of the tree. The
defendants disputed this; they maintained that the damage was caused by
rehydration of the soil resulting in heave rather than subsidence. The recorder
resolved this issue in favour of the plaintiffs; and there is no appeal on this
point.
The recorder also found that the damage
to the plaintiffs’ house from the tree roots was reasonably foreseeable by the
defendants. Following the decisions of this court in Leakey v National
Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Solloway
v Hampshire County Council (1981) 79 LGR 449 this was a necessary
precondition to liability in nuisance on the part of the council. The recorder
based this conclusion as to foreseeability on the following matters: the tree
was an oak which as a species notoriously has a high water demand; the tree and
the house were situated on clay which is highly shrinkable; the geological
survey clearly showed the nature of the soil, which was in any event known to
the council; and the tree was 20m high and about 11–12m from the front of the
building, well within the danger area for a tree of that size and type. In his
notice of appeal and skeleton argument Mr Simon Russen on behalf of the council
challenged the recorder’s conclusion on foreseeability. He did not develop this
challenge in oral argument. In my judgment, there was ample evidence to support
the recorder’s conclusion on this point.
The principal grounds of appeal challenge
the legal basis upon which the recorder found the council liable. The
plaintiffs’ claim as originally pleaded alleged nuisance, negligence and breach
of statutory duty. So far as the claim in nuisance was concerned, it was
alleged that the defendants owned the tree or exercised sufficient control over
it to make them liable in nuisance. The claim for breach of statutory duty,
based upon section 96(6) of the Highways Act 1980 (the 1980 Act) was abandoned.
Although a number of authorities were
cited to the recorder, he does not refer to them in his judgment and I have not
found it easy to discern the basis upon which he found the council liable. He
did not find that the council owned the tree. He found them liable in nuisance
and negligence, seemingly on the basis that they ‘had power to maintain the
tree and did so maintain it’. The power to maintain is a statutory one
contained in section 96 (1) of the 1980 Act. And there was evidence that
between about 1956 and 1984 the council had pruned the tree from time to time.
Mr Russen criticised the recorder’s
conclusion. In summary he submits that section 96(1) provides a power only to
maintain the tree. In the absence of a claim based on section 96(6) there is no
statutory duty to act and mere failure to do so does not give rise to liability
at common law. He relies upon the House of Lords’ decision in Stovin v Wise
[1996] AC 923. The mere fact that the council had pruned the tree in the past
cannot of itself give rise to a duty to continue to do so. He submitted that
the tree was not the property of the defendants, but of the owner of the
subsoil. He relied upon the presumption that the owner of land adjoining the
highway owned the soil up to the mid-line of the highway. On this basis he
initially submitted to this court that the plaintiffs were the owners of the
tree. However, it is clear that the tree is in fact on the no 211 side of the
projected boundary between the two houses, so that if anyone other than the
council is the owner, it is the owner of no 211.
In the light of these submissions it is
necessary to consider the way in which the plaintiffs’ case has been presented
to this court. The primary submission made by Mr Dermod O’Brien QC on their
behalf is that under the statutory provisions whereby the highway was vested in
the defendants and their predecessors, the property in the tree also vested in
them so that they became owners of the tree or, alternatively, sufficient
property in it to found liability for nuisance. This submission was not made to
the recorder and he cannot be criticised for not dealing with it. Mr O’Brien’s
alternative submission is that the statutory power to maintain contained in
section 96(1) of the 1980 Act coupled with the exercise of that power by
pruning the tree for at least 30 years demonstrated sufficient control over the
tree to found an action in nuisance.
Before considering the relevant statutory
provisions, it is convenient for the purpose of this judgment to divide trees
growing in the highway into three categories:
1. Those planted and growing in the
highway before dedication/adoption of the highway by the inhabitants at large
or the highway authority. I shall refer to these as pre-adoption trees.
2. Those planted or growing in the
highway after dedication/adoption, but not planted under statutory powers. I
shall refer to these as post-adoption trees. The tree in this case is a
post-adoption tree.
3. Those planted under express statutory
powers granted to the highway authority. I shall refer to these as planted
trees.
At common law the owner of land over
which ran a public highway did not lose any of his rights of ownership whether
of the surface or subsoil. Any trees growing in the highway were his trees: see
1 Rolle’s Abridgement (1668) 392; Goodtitle v Alker (1757)
1 Burr 133.
This position remained the same until the
Public Health Acts of 1848 (section 68) and 1875 (the 1875 Act) (section 149)
so far as urban streets are concerned. Section 149 of the 1875 Act provided so
far as is material:
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
for the purposes thereof, shall vest in and be under the control of the urban
authority…
Any person who without the consent of the
urban authority wilfully displaces or takes up or who injures the pavement
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.
Highlands Road is an ancient highway and
is within the urban district of Fareham and the highway would have vested in
the district council at some stage under the 1875 Act, if not the earlier 1848
Act. Mr O’Brien submits that the property in the tree also vested in the
council or their predecessor within this section, or alternatively sufficient
property in it vested in them to make them responsible in nuisance.
Similar provisions for the vesting of
highways other than those in urban areas were contained in section 29 of the
Local Government Act 1929. Broadly speaking urban and non-urban highways
continued to be dealt with separately until the Highways Act 1959. The current
provision as to vesting is contained in section 263(1) of the 1980 Act which
provides that, subject to certain exceptions referred to in subsection (2),
every highway maintainable at public expense, together with the materials and
scrapings of it, vests in the authority who are for the time being the highway
authority for the highway.
So far as urban authorities are concerned
the power to plant trees, provided they did not become a nuisance to the users
of the highway or adjacent owners or occupiers, was first introduced by section
43 of the Public Health Acts Amendment Act 1890.
By the Road Improvements Act 1925 similar
provisions were granted to the Ministry of Transport, county councils and
highway authorities. Since the law has remained substantially the same since
that time I will set out the relevant provisions.
Section 1(1) provides:
The Minister of Transport (hereinafter
referred to as the Minister) and any county council or other highway authority
shall have power to cause trees or shrubs to be planted and grass margins to be
laid out in any highway maintainable by him or them respectively; and to erect
and maintain guards or fences and otherwise to do anything expedient for the
maintenance or protection of such trees, shrubs and grass margins.
Section 1(2) provides:
No such tree, shrub, grass margin, guard
or fence shall be placed, laid out or 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 any
land or premises adjacent to the highway.
Section 1(5) provides:
If damage is caused to the property of
any person by anything done in exercise of the powers conferred by this
section, that person shall, unless the damage was caused or contributed to by
his negligence, be entitled to recover compensation therefor from the Minister,
county council or other highway authority by whom the powers were exercised.
These provisions were substantially
re-enacted in the Highways Act 1959 section 82(1)(5) and (6). It should be
noted that the power it gave to do anything expedient to maintain or protect
trees was limited to trees planted by the authority, ie ‘planted trees’. This
was amended by the Highways (Miscellaneous Provisions) Act 1961 section 5 so
that the power extended to all highway trees whether or not planted by the
authority.
The current statutory provisions relating
to highway trees are contained in section 96 of the 1980 Act. Subsection 1
provides:
96.–(1) Subject to the provisions of this
section, a highway authority may, in a highway maintainable at the 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 or protection of trees, shrubs and grass verges planted or laid
out, whether or not by them, in such a highway.
The power to maintain trees, which, in my
judgment, includes the power to prune them, relates to all three categories of
trees.
Section 96(6) provides:
(6) 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 under this section, allowed to remain, in such a situation
as to hinder the reasonable use of the highway by any person entitled to use
it, or so as to be a nuisance or injurious to the owner or occupier of premises
adjacent to the highway.
This subsection applies only to planted
trees. In my opinion, Tudor Evans J was in error in Russell v Barnet
London Borough Council (1984) 83 LGR 152* when he held at pp170–171 that on
the true construction of the predecessor of this subsection, which was in
substantially the same terms (Highways Act 1959 (the 1959 Act) section 82
(section 1 as amended by Highways (Miscellaneous Provisions) Act 1961 (the 1961
Act) section 5), the subsection applied to all trees whether or not planted by
the highway authority. It was for this reason that the plaintiffs, rightly in
my view, abandoned their claim in statutory nuisance.
*Editor’s note: Also reported at [1984] 2
EGLR 44
Section 96(7) provides:
(7) If damage is caused to the property
of any person by anything done in exercise of the powers conferred by this
section, that person is entitled, subject to subsection (8) below, to recover
compensation for it from the authority or parish or community council by whom
the powers were exercised.
This subsection refers back to subsection
(1) and therefore applies to all categories of trees. But it appears to be
concerned with misfeasance rather than non-feasance. However, it is unnecessary
to decide this point and we have not heard full argument upon it. The
plaintiffs have not sought statutory compensation within the subsection.
There does not appear to be any
comparable provision in the 1980 Act to that contained in section 149 of the
1875 Public Health Act creating the offence of damaging highway trees and
providing for compensation. Under the Highways Act 1959, by section 117(2) it
was provided that:
If a person, without lawful authority or
excuse, —
(a) wilfully damages … a tree,
hedge or shrub, or grass, planted or laid out in a highway …
he shall be guilty of an offence:
That section was repealed and replaced by
the Criminal Damage Act 1971. Section 1(1) provides:
A person who without lawful excuse
destroys or damages any property belonging to another intending to destroy or
damage any such property or being reckless as to whether any such property
would be destroyed or damaged shall be guilty of an offence.
By section 10(1) ‘property’ means
property of a tangible nature whether real or personal, but does not include
the flowers, fruit or foliage of a plant (which includes a tree) growing wild.
A planted tree and its flowers, fruit and foliage is within the section, so
also is any other tree but not its flowers, fruit or foliage.
By section 10(2):
Property shall be treated for the
purposes of this Act as belonging to any person
(a) having the custody or control
of it;
(b) having in it any proprietary
right or interest …
Mr O’Brien is, I think, right in
submitting that if a charge under section 1 of the Act is laid in respect of a
highway tree, whether or not it is a planted tree, the property in the tree
would be alleged to be in the highway authority.
Although there is no provision comparable
to that found in section 149 of the 1875 Act for compensation to be paid to the
highway authority under these Acts, since the powers of Criminal Courts Act
1973 section 35, a criminal court has power to make a compensation order, and
such a compensation order in respect of a highway tree could be made in favour
of the highway authority.
So far as planted trees are concerned, it
is clear that the highway authority will be liable under section 96(6) if the
roots of the planted tree cause dehydration to the soil and consequent
subsidence of a building adjacent to the highway.
In my opinion, the authorities also show
that a sufficient property in post-adoption trees also vests in the highway
authority to ground an action for nuisance both at the suit of the user of the
highway, who is injured as a result of the dangerous condition of the tree, and
also at the suit of an adjoining owner, who suffers damage to person or
property, provided the damage was reasonably foreseeable.
Turner v Ringwood Highway Board (1870)
LR 9 Eq 418 was a case of post-adoption trees, but before any statutory vesting
of the highway. The highway extended to a width of 50 ft. After adoption trees
grew in that part not used as the actual road. The highway board were held
entitled to cut the trees and the plaintiff who had bought the adjoining land
was not permitted to stop them. Sir WM James V-C said, at p422:
The right of the public is to have the
whole width of the road preserved free from obstructions, and is not confined
to that part which was used as the via trita.
The Vice-Chancellor reserved his opinion
as to who owned the property in the timber when cut.
In Coverdale v Charlton
(1878) 4 QBD 104 the facts were these: by an award under an Inclosure Act
passed in 1766 a private road E was set out. In about 1818 road E became a
public highway. A local board was formed in 1863 and in 1876 the board let the
pasturage upon E to the plaintiff. He thereupon commenced to depasture the
herbage with his cattle. The defendant interfered with the plaintiff’s
enjoyment of the depasturage. By section 149 of the Public Health Act 1875 the
street vested in and was under the control of the local board. It was held,
affirming the judgment of the Queen’s Bench Division, that by virtue of section
149 the property in the soil of E, being a ‘street’, so far vested in the local
board that they could demise the right of pasturage thereon to the plaintiff,
who was entitled to maintain the action.
The first judgment was given by Bramwell
LJ and I shall have to refer to it, but it does appear that it lacks somewhat
the clarity that was characteristic of that great judge. Brett LJ considered the
language of section 149 and said at p120:
… we can give no other meaning to the
words ‘vest in,’ except to say that it gives the property. It has been
suggested that this meaning is so wide that it would give to the local board
cellars which may be under the street, or houses that may be built over the
street; or indeed, mines, however deep lying under the street. 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 street; the
section does not say that the land ‘shall vest in,’ but that ‘the street shall
vest in.’ I think that the case of Brumfitt v Roberts (1) is a
guide in construing this section. The words of the private Act in that case
were, that the fee simple of the pew should be vested in the subscribers or
proprietors; the Court held that those words did not vest the land over which
the pew was. So here, the words of this section vest the property in the
street; and the street does not include the houses by the side of the street;
it includes the space between the houses which is used as the footway and
roadway. ‘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, namely, to raise the street and to lay
down sewers; for, at the present day, there can be no street in a town without
sewers, and also for the purpose of laying down gas and water-pipes. ‘Street,’
therefore, in my opinion, includes the surface and so much of the depth as may
be not unfairly used, as streets are used. It does not include such a depth as
would carry with it the right to mines, neither would ‘street’ include any
buildings which happen to be built over the land, because that is not a part of
the street within the meaning of such an Act as this. If the enactment gives
the local board that property in so much of the land, it gives them the
absolute property in everything growing on the surface of the land. The
legislature have, because the right of owners to the soil in a ‘street’ is of
so little value, intentionally taken away that right and have given it to the
extent I have mentioned to the local board. [Emphasis supplied]
On the face of it the emphasised passage
would clearly include trees.
Cotton LJ said at p126:
Therefore, on the true construction of
this Act of Parliament, the meaning to be given to the words ‘vest in’ must be
‘passed to and vested in’ the local board; it is sufficient in the present case
to say that the street and the surface vested in the local board some property
in the soil for the purpose for which it was to be used, and in my opinion I
must hold that the ‘street’ is a material thing, and that under this clause it
vests in the local board.
Bramwell LJ in dealing with the
construction of section 149 said at p116:
And on account of the reasonableness of
such an interpretation I am disposed to hold that this ‘street’ vests without
any property in the freehold of the soil. The word ‘vest’ may have two
meanings; it may mean that a man acquires the property usque ad coelum
and to the centre of the earth, but I do not think that to be its meaning here.
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.
Suppose the soil of the freehold passes, and consequently it carries the right
to the land to an indefinite extent upwards, and to the centre of the earth
below the surface: I cannot make up my mind to say that is the meaning of the
word ‘vest’ in section 149.
And later:
But the inconvenience and injustice of
holding that the word ‘vest’ would have that effect prevents my putting that construction
upon it. What then is the meaning of the word ‘vest’ in this section? The
legislature might have used the expression ‘transferred’ or ‘conveyed,’ but
they have used the word ‘vest.’ 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 any
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
that streets are used, shall vest in the local board. I will refer to a few
instances in support of this construction. The streets vest; the pavement, the
stones, and other materials vest; all buildings vest which would seem to mean
railways, and building implements which are chattels, and other things ‘vest’
in the local authority. This Act also provides that the urban authority shall
cause all streets to be levelled, paved, metalled, flagged, channelled, altered
and repaired as occasion may require; they may 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 injures the pavement stones, materials, fences or posts, or the
trees of such street shall be liable to a penalty not exceeding 5l, and
to a further penalty not exceeding 5s, for any square foot of pavement
stones or other material so displaced and injured; he shall also be liable in
case of injury to the trees to pay to the local authority such amount of
compensation as the Court may award. 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 shew that they must have
some property in the soil and its produce; that would assist the contention in
favour of the plaintiff.
The reference in the last sentence, to
trees where the public has a right to pass, must be a reference to pre-adoption
trees; on the other hand, in the next part of the sentence the dichotomy seems
to be between trees now in existence, ie pre- and post-adoption trees and those
planted by the highway authority.
Apart from the dictum of Bramwell
LJ it seems to me that the decision supports Mr O’Brien’s submission. It is
difficult to see any logical distinction between one type of plant, ie grass
and shrubs, and another, ie a tree, since a tree when the seed first germinates
or the sapling is first planted will be in that part of the soil which does
vest in the highway authority.
This appears to have been the view of
Clauson J in Stillwell v New Windsor Corporation [1932] 2 Ch 155.
In that case the plaintiff owned a house bounded on the west and north by
public highways. There were a number of post-adoption trees of which the
plaintiff claimed the property. Having refused to comply with the defendants’
notice to remove the trees on the ground that they were dangerous and
obstructive to traffic, and the defendants as highway authority having, in
consequence of the refusal, themselves removed three of the trees, the
plaintiff brought the action seeking an injunction to restrain the defendants
from removing the remaining trees. It was held that since the trees which had
been cut down were a nuisance to the highway the defendants had not merely a
right but a duty to remove them: as to the remaining trees, they were
authorised to remove them as being an obstruction to the rights of the public
over the entire width of the roads, which was not limited to the use of the
carriageways. And further that the trees, as being parts of the ‘streets’ or as
produce of the soil thereof, vested under section 149 of the 1875 Act in and
under the control of the highway authority, with the result that the plaintiff
was not in a position to complain.
In dealing with the argument that the
trees vested in the defendants as highway authority under section 149 the judge
said at p165:
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 of 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 the 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 this 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 those
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 (1878) 4 QBD
104, at p117, 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,
vested in the highway authority, 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.
This decision was followed at first
instance by Stocker J in Solloway v Hampshire County Council
(unreported February 20 1981) at p28. That was a case of a post-adoption tree.
The decision in favour of the plaintiff was reversed on appeal on the question
of foreseeability. In Russell v Barnet London Borough Council
(1984) 83 LGR 152 Tudor Evans J also expressed the view obiter at p168
that post-adoption trees vested in the highway authority. That was a case of a
pre-adoption tree, and the judge distinguished the two types and held that
pre-adoption trees did not vest. He held the defendants liable on the basis
that they exercised control of the trees, Mr O’Brien’s second main submission.
Mr Russen submitted that if the
plaintiffs’ submission was correct section 96(6) was otiose, because the
highway authority would, in any event, be under a potential liability in nuisance
to road users and adjoining owners and occupiers at common law. Section 96(6)
imposes a liability, he submitted, which would not otherwise exist at common
law. But, in my judgment, Mr O’Brien’s answer to this submission is correct.
Section 96(6) has been inserted to guard against an argument which might
otherwise be based upon the principle in Geddis v Bann Reservoir
Properties (1878) 3 App Cas 430, namely that if the statutory power to
plant was exercised without negligence, the highway authority would not be
liable if the consequence of the growth and redevelopment of the tree
throughout its normal life resulted in nuisance to users of the highway or
adjoining owners or occupiers. Moreover, I would wish to reserve my opinion as
to whether in an action for breach of statutory duty relating to damage caused
by planted trees, foreseeability was a necessary ingredient.
I have no doubt that so far as
post-adoption trees are concerned the property in them vests in the highway
authority for all purposes. If they were planted, albeit not under statutory
power as the tree in the present case possibly was, they are planted for
highway purposes in that part of the soil which plainly vested. If they are
self-seeded, again they are seeded in that part of the highway which vests in
the local authority. If as they mature, their roots encroach into the subsoil
which remains the property of the adjoining owner, I do not see how that makes
the tree the property of the owner of the subsoil. And I can see no logical
distinction between trees and smaller shrubs, plants or grass.
That is sufficient to dispose of this
appeal in favour of the plaintiffs. But both counsel have urged upon us the
view that there is no logical distinction between pre- and post-adoption trees
so far as the liability of the highway authority to adjoining owners is
concerned. Mr Russen relies upon the decision of Tudor Evans J in Russell‘s
case and a decision of mine in Bridges v Harrow London Borough
(1981) 260 EG 284* that the highway authority are not liable in nuisance to
adjoining owners in respect of pre-adoption trees to persuade us that the
highway authority are not liable for post-adoption trees. For the reasons I
have given already I reject this submission. Mr O’Brien submits that Tudor
Evans J and I were wrong in those decisions. He points out that even in
relation to pre-adoption trees, the highway authority are liable in nuisance to
users of the highway, as Tudor Evans J recognised: see p168. The law extends to
users of the highway the same protection in relation to nuisance on the highway
as an occupier of land enjoys in relation to a nuisance causing physical damage
emanating from the adjoining land. Moreover, from a practical point of view
there is much to commend Mr O’Brien’s submission. It may be very difficult to
determine in any given case and without the expensive advice of dendrologists
whether the tree is pre- or post-adoption. Much time and expense may be taken
in litigating this issue. Second, in practice a highway authority can not make
any distinction in management between the two, and in this case did not attempt
to do so. If there is any logical basis in the distinction, it depends upon the
fiction that in the case of a pre-adoption tree there is a reservation from the
public’s right to pass over the full extent of the highway that part of the
surface on which the tree is growing and that the owner of the land at
dedication intended to reserve the tree from the dedication. This seems to me
to be an unreal fiction, in the absence of an express reservation. There are no
authorities binding upon this court which preclude us from holding that
pre-adoption trees vest in the highway authority for all purposes, though I
appreciate that Bramwell LJ’s opinion was to the contrary. The penal and
compensationary provisions in section 149, as he recognised, suggest that the
property of all trees rests in the highway authority. I think that the time has
come when the courts should adopt a consistent approach to all highway trees
other than those already subject to the statutory scheme now
that it involves holding that my previous decision in Bridge‘s case was
wrongly decided.
*Editor’s note: Also reported at [1981] 2
EGLR 143
In these circumstances I do not find it
necessary to deal with Mr O’Brien’s alternative argument based upon the control
of the tree deriving from the statutory powers in section 96(1) and the
exercise of that power over 30 years or more prior to the damage sustained to
the plaintiffs’ house. Nor is it necessary to deal with any freestanding claim
founded in negligence apart from nuisance though, in my view, such a claim
would present great difficulty in the light of Stovin v Wise.
I would dismiss the appeal.
MORRITT LJ and SIR JOHN BALCOMBE agreed and
did not add anything
Appeal dismissed with costs.
