Plaintiffs’ property suffering structural damage – Plaintiffs claiming damage caused by tree in verge of highway – Whether highway authority liable in nuisance and negligence – Whether highway authority had sufficient property in tree – County court giving judgment for the plaintiffs – Court of Appeal dismissing appeal
The plaintiffs were the owners of a semi-detached house at 213 Highlands Road, Fareham. The other part of the house was numbered 211. The defendant was the highway authority for the road. In the verge of the highway outside the house was an oak tree about 180 years old. The road was an ancient highway originally maintainable by the inhabitants at large, subsequently vesting in the defendants or their predecessors. It was 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. The plaintiffs issued proceedings alleging nuisance and negligence and claimed that the damage had been caused by subsidence due to moisture extraction or dehydration of the clay soil by the roots of the tree. The county court judge held that the defendant had “had power to maintain the tree and did so maintain it” within section 96(1) of the Highways Act 1980 and that the damage had been caused by the tree and therefore, since the damage to the plaintiff’s house from the tree was reasonably foreseeable, the defendant was liable in nuisance and negligence. The defendant appealed on the ground that section 96(1) of the 1980 Act provided a power only to maintain a tree and, in the absence of a claim under section 96(6) of the Act, there was no statutory duty to act and accordingly failure to do so did not give rise to liability at common law.
Held The appeal was dismissed.
1. A sufficient property in trees planted and growing in the highway before dedication or adoption of the highway by the inhabitants at large or the highway authority vested in the highway authority to ground an action for nuisance, both at the suit of the user of the highway who suffered damage as a result of the dangerous condition of the tree and also, at the suit of an adjoining owner who suffered damages to person or property, provided the damage was reasonably foreseeable.
2. That did not render section 96(6) of the 1980 Act otiose because the section guarded against the principle that if the statutory power to plant trees was exercised without negligence, the highway authority was not be liable if the consequence of the growth and development of the tree throughout its normal life resulted in nuisance to users of the highway or adjoining owners or occupiers.
3. The ownership of the tree vested in the defendant for all purposes. It had been planted for highway purposes in the part of the soil which plainly vested in the defendant. Although its roots had encroached the subsoil that did not mean it was the property of the owner of the subsoil.
Simon Russen (instructed by the solicitor to Hampshire County Council) appeared for the appellants; Dermod O’Brien QC and John MacDonald (instructed by CA Norris, of Southampton) appeared for the respondent.
