Nuisance — Negligence — Subsidence — Tree roots — Subsidence damage from tree roots — Trees in highway — City council maintaining highway under agency agreement — Whether council proper defendants — Whether council should have been given opportunity to abate nuisance — Whether underpinning works necessary
The respondent’s property fronted a public highway, along which stood a row of plane trees. In 1992, on the recommendation of consultants, the respondent carried out underpinning works to its property in order to remedy cracks attributable to subsidence caused by the trees. Hampshire County Council (HCC) were the highway authority for the purposes of the public highway, although the appellant council carried out the functions of the highway authority under an agency agreement. In proceedings for both nuisance and breach of a duty of care brought by the respondent against the council, the county court judge found that the subsidence damage had been caused by the roots of the plane trees desiccating the soil underneath the property, and the council were therefore liable in nuisance and negligence. The council appealed, contending that: (i) HCC, and not the appellant council, were the proper defendants; (ii) the respondent had failed to give the council an opportunity to “abate” the nuisance; and (iii) the underpinning works were unnecessary.
Held: The appeal was dismissed.
(1) The failure to trim the crowns of the plane trees had given rise to the nuisance. It was not necessary to decide whether the council were the occupiers of the highway. What mattered was that they had the right and duty to reduce the height of the trees so as to prevent damage being caused to nearby properties; the agency agreement gave them sufficient control over the trees. The council were the proper defendants in both nuisance and in negligence. (2) The council had been notified of the subsidence prior to the underpinning works. They had not shown that even if they had been given sufficient time to abate the nuisance, they would have ensured that the nuisance was abated. (3) The trial judge had been entitled to conclude that the respondent had acted reasonably in taking the course that it had, in having underpinning carried out rather than seeking tree-management measures, especially since the council disputed causation at all material times.
The following cases are referred to in this report.
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452
Delaware Mansions Ltd v Westminster City Council; sub nom Flecksun Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321; [2001] 3 WLR 1007; [2001] 4 All ER 737
Heap v Ind Coope & Allsopp Ltd [1940] 2 KB 476
Mint v Good [1951] 1 KB 517; [1950] 2 All ER 1159, CA
Russell v Barnet London Borough Council (1984) 83 LGR 152; [1984] 2 EGLR 44; 271 EG 699
Solloway v Hampshire County Council unreported 20 February 1980
Wilchick v Marks & Silverstone [1934] 2 KB 56
This was an appeal by the appellants, Portsmouth City Council, from a decision of Judge Havery QC, in the Technology and Construction Court, in a claim by the respondent, LE Jones (Insurance Brokers) Ltd, in nuisance and for breach of a duty of care.
Gordon Bebb QC (instructed by the solicitor to Hampshire County Council) appeared for the appellants; Howard Palmer QC and Daniel Crowley (instructed by Plexus Law) represented the respondent.
Aldous LJ said:
[1] I invite Dyson LJ to give the first judgment.
Giving the first judgment, Dyson LJ said:
[2] This is an appeal from the decision of Judge Havery QC given on 11 March 2002, whereby he decided that Portsmouth City Council (Portsmouth) were liable to the claimant in negligence and nuisance for damage consequent upon the subsidence of the claimant’s property at 208 London Road, Portsmouth (the property). He did not determine the issue of damages. The essential facts are these. At all material times, the claimant has occupied, and carried on business at, the property, which was originally built as a terraced house. There is a row of plane trees in London Road. One of these, growing outside no 210, is 0.5m north of the boundary with no 208. It is a mature tree, which was planted in around 1900. In 2001, it had a height of 14-16m. Another tree, growing outside no 206, is 2m south of the boundary with no 208. It is a replacement of a tree that was felled in 1994. Both the tree growing outside no 210 and the predecessor of the tree now growing outside no 206 played a part in the events that gave rise to this litigation.
[3] Cracks first appeared in the property in around 1990. The claimant instructed the Pearson Ellis Partnership (PEP) to carry out an inspection. It is a firm of consulting engineers. PEP made a number of reports during the following months. In May 1992, it recommended that the property be underpinned and the cracks repaired. This was done. In a careful judgment, the judge made detailed findings as to the cause of the damage. He found that it was caused by subsidence of the property, and that this was the result of desiccation of the soil caused by the roots of the plane trees, which had encroached onto the property. There is no appeal against these findings.
[4] At all material times, Portsmouth were acting as agents for Hampshire County Council (HCC) pursuant to an agency agreement. Until April 1997, HCC were the relevant highway authority. The first such agreement was dated 7 March 1975, whereby Portsmouth agreed to carry out, inter alia, the functions of “planting and maintenance of trees and shrubs and grass verges”: see clause 1 of the first schedule. A subsequent agreement was dated 22 March 1988, clause 4.1 of which provided: |page:100|
The City Council shall act as the agency of the County Council in the management of the highways. … “Management” for this purpose shall comprise…
(7) The control, ordering and supervision of routine maintenance as defined in the Second Schedule in accordance with such policies and standards as may from time to time be established by the County Council…
By the second schedule, “routine maintenance” included “grass cutting, hedge trimming, maintenance of trees and shrubs”.
[5] The judge found at [11] that no reduction of the crown of the trees took place between 1979-1980 and at least 1993. An internal memorandum of Portsmouth, dated 15 October 1992, indicated that, at that time, the two trees in question were 16m in height and had a spread of 12m. The judge found at [34] that one of the reasons why Portsmouth included, in their tree-maintenance programme, the reduction of tree crowns was “to reduce the amount of growth the roots put on, and the water uptake by the tree”. Portsmouth were aware of the risk of damage to buildings by subsidence. There was a foreseeable risk of subsidence of nearby properties if the trees were allowed to desiccate the underlying soil. The judge specifically held, at [36], that:
there was a foreseeable risk that the trees in question, when allowed, as they were, to grow well over 10 metres in height, would desiccate the soil under the property during hot summers of prolonged dry weather.
There is no appeal from any of these findings.
Issues
[6] The following issues arise on this appeal.
(i) Were Portsmouth (rather than HCC) the right defendants?
(ii) Did the claimant fail to give Portsmouth the opportunity to “abate” the nuisance?
(iii) Was the underpinning necessary?
Wrong defendants
[7] The judge dealt with this issue succinctly in the following terms:
27. In my judgment, the lawful exercise of control over the tree, in the absence of ownership, is sufficient to make the defendant capable of liability in nuisance to the claimant. And the potential liability of the defendant in negligence is not dependent on ownership or occupation of the relevant land. Nor is it excluded by potential liability of the highway authority for the same negligence.
[8] On behalf of Portsmouth, Mr Gordon Bebb QC submits that the proper defendants were HCC and not Portsmouth. The duty to maintain the highway was vested by statute in HCC as the highway authority, and, as a matter of law, that duty could not be delegated to Portsmouth, or, indeed, anyone else. The agency agreement had contractual force as between HCC and Portsmouth, but it did not purport to, nor could it, affect the statutory or common law duties of care owed by HCC and Portsmouth prior to 1 April 1997: the significance of this date is that, since then, Portsmouth have become the relevant highway authority. The judge was wrong to hold that the lawful exercise of control over the offending trees by Portsmouth, pursuant to their contract with HCC, was sufficient to make Portsmouth liable in tort to the claimant: Portsmouth did not have a sufficient degree of interest and control to found liability.
[9] On behalf of the claimant, Mr Howard Palmer QC submits that the undisputed fact that Portsmouth exercised control over the trees and exercised the power to maintain them pursuant to their contract with HCC was sufficient to form the basis of liability in nuisance and negligence.
[10] In my view, the judge was right. I shall start with nuisance. It seems to be common ground that the trees were a nuisance: they constituted an unlawful interference with the claimant’s use and enjoyment of its property. It was reasonably foreseeable that, unless the crowns of the trees were trimmed regularly, there would be desiccation of the soil beneath the property, and that damage would, or might, be caused thereby. The question is: who, in those circumstances, is responsible in law for the nuisance? The editors of Salmond & Heuston on the Law of Torts (21st ed) discuss the question “who is liable” in nuisance at p64 and following. They start with the liability of occupiers, and say:
Speaking generally, the occupier of premises is liable for all nuisances which exist upon them during the period of his occupancy. His duty is not merely to refrain from positive acts of misfeasance which cause harm to his neighbours, but also to take care that such harm is not caused by his omission or by third parties or by nature, and to abate it if it does. “I have the control and management”, said Sir Charles Abbott CJ, “of all that belongs to my land or my house, and it is my fault if I do not so exercise my authority as to prevent injury to another.” Hence an occupier may be responsible for what is done, not only by his servants or (in some cases) independent contractors, but also by his invitees or licensees. The reason is that an owner of private property, if he likes to take the necessary measures, can prevent people coming on his land and causing harm, because he can shut everyone out if he so wishes.
At p67, the authors discuss the liability of non-occupiers and consider four categories under this heading: the liability of the creator of a nuisance (that is, by misfeasance); the liability of one who authorises another to create or to continue a nuisance; the liability of a lessor or licensor who lets premises with a nuisance on them; and the liability of an owner for breach of covenant to repair. It may be said that Portsmouth do not fit neatly into any of these categories. But as I shall explain, the rationale that underlies making occupiers, and, in some instances, non-occupying owners, liable in nuisance applies in the present case. As Mr Palmer puts it, the key to responsibility in the law of nuisance is the degree of control, in law and/or in fact, exercised by the putative defendant over the thing or activity that has brought about the nuisance.
[11] In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard that constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove the hazard. Similarly, control lies at the heart of the liability of a non-occupying owner for liability when the nuisance is attributable to a breach by him of the covenants of a lease, or a failure to exercise his right to enter and carry out repairs. An example of this latter category is Mint v Good [1951] 1 KB 517. In that case, the plaintiff was injured by the collapse of a wall that separated the highway from the forecourt of a house owned by the defendant. The house was let on a weekly tenancy. No right to enter was expressly reserved to the owner. The judge found that the wall was a nuisance, but dismissed the claim against the owner because he had not specifically reserved the right to enter the premises. The Court of Appeal allowed the plaintiff’s appeal, holding that a right to enter was to be implied in the circumstances. The court considered the line of cases, including Wilchick v Marks & Silverstone [1934] 2 KB 56 and Heap v Ind Coope & Allsopp Ltd [1940] 2 KB 476, that support the proposition that a non-occupying owner who has the right to enter premises to carry out repairs may be liable in nuisance to a third party who is injured by reason of the owner’s failure to carry out the repairs, even if the owner has not covenanted to carry them out. In the course of his judgment, Denning LJ explained the basis of this line of authority. At p527, he said:
I cannot think that the liability of the owner to passers-by depends on the precise terms of the tenancy agreement between the owner and the tenant, that is to say, on whether he has expressly reserved a right to enter or not. It depends on the degree of control exercised by the owner, in law or in fact, for the purposes of the repairs. If a landlord is liable when he reserves an express right to enter, he is also liable when he has an implied right; and even if he has no strict right, but has been given permission to enter whenever he asked, it should make no difference. The landlord has in practice taken the structural repairs on himself and should be responsible for any disrepair.
(Judge’s emphasis.)
[12] In my judgment, it is not necessary to decide whether Portsmouth were occupiers of the highway in this case. What matters is that they had the right and duty to maintain the trees, and that this |page:101| included, where necessary, the right and duty to reduce their height so as to prevent damage being caused to nearby properties. The agency agreements gave them sufficient control over the trees, both in fact and in law, to prevent any nuisance from occurring, and to eliminate any nuisance that did occur. Mr Bebb submits that the control exercised by Portsmouth arose from the performance of their contractual obligations to HCC. This is true, but, in my view, irrelevant. What matters is that they exercised control, not the legal basis upon which they came to do so. I am in no doubt that the degree of control exercised by Portsmouth over the trees was sufficient for it to be reasonable to fix them with liability for the nuisance.
[13] The judge was referred to a number of first instance decisions. In Russell v Barnet London Borough Council (1984) 83 LGR 152*, the highway authority were held liable in nuisance and negligence to the owners of a house that was damaged in a manner strikingly similar to that which occurred in the present case. Tudor Evans J decided that, although the plaintiffs were presumed to be the owners of the trees, the highway authority were liable because they had had control over the trees. At p169, he referred to a passage from the judgment of Stocker J in Solloway v Hampshire County Council unreported 20 February 1980, where that judge had said that, even if the trees in the highway were not owned by the highway authority:
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 trees to make them liable for nuisance if such occurs.
I do not accept the submission of Mr Bebb that, in Russell, the highway authority were liable because they were in occupation of the highway. It is true that, on the facts of that case, the authority were in occupation of the highway, and that their occupation gave them the necessary control. But it is clear that liability was based upon the fact that they had sufficient control over the trees to make them liable. In most cases, occupation will give the occupier sufficient control to found liability in nuisance. But Russell is not authority for the proposition that a person cannot be liable in nuisance unless he is in occupation of the land or has some legal interest in it.
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* Editor’s note: Also reported at [1984] 2 EGLR 44
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[14] It follows that, in my view, the judge reached the right conclusion on this first issue. As he pointed out, it may be that HCC also had a potential liability. But that is irrelevant to the question of whether Portsmouth were liable.
[15] As for negligence, I do not understand on what basis it can be said that Portsmouth did not owe the claimant a duty to perform their function of tree management with reasonable care. Mr Bebb boldly submits that the only duties owed by Portsmouth were to HCC, and that only HCC owed a duty of care in tort to persons who foreseeably suffered damage as a result of inadequate tree management. I do not agree. The mere fact that Portsmouth owed a contractual duty to HCC does not mean that they owed no duties in tort to anyone else. On the facts of this case, the judge found that the damage suffered by the claimant was reasonably foreseeable. There was sufficient proximity between Portsmouth and the claimant to give rise to a duty of care in tort. In my view, it is also just and reasonable that, as the judge held, Portsmouth should be potentially liable in negligence to the claimant for the damage caused by the trees.
Opportunity to abate the nuisance
[16] The facts relevant to this issue are as follows. On 2 September 1992, the claimant’s insurer’s loss adjuster wrote to Portsmouth’s solicitor a letter in these terms:
We act on behalf of the Building Insurers of [208, London Road, North End, Portsmouth] with regard to a claim which has been submitted following the development of damage which has been demonstrated as arising from subsidence of the site.
In the course of the investigation, roots from plane trees growing on the public pavement were found beneath the foundations and it has been demonstrated that these roots have resulted in desiccation of the clay soil. We have pleasure in enclosing a root analysis report and would be pleased if you would immediately advise your public liability insurers of our principals’ expressed intention to seek recovery of their outlay from you, in view of the damage caused by the trees.
We can advise you that it has been agreed that the front part of the building will require to be underpinned in order to stabilise it and under these circumstances our principals’ outlay will be substantial, estimated at at least £40,000. We await hearing from your insurers as soon as practicable.
[17] On 3 November, the loss adjuster wrote again:
We refer to our recent letter and your subsequent telephone call and confirm as advised that we are quite happy to meet with you at the risk address to consider the matter but consider that an appropriate stage would be when tenders are available for remedial works which will be in the middle of November and we shall contact you further nearer the time so that appropriate appointments can be made.
[18] By this time, the loss adjuster had already put in train the tendering process for the underpinning works. Quotations had been received by 11 November from four contractors. The contract for the underpinning works was made on 21 December 1992.
[19] At [42] of his judgment, the judge said:
the fact is that the defendant was notified of the claim before the claimant was committed by contract to the underpinning. There is no evidence that the defendant suggested that an alternative remedy should be considered or even asked the claimant for time to consider the matter. In my judgment, the defendant did have an opportunity at least to ask for an opportunity to abate the nuisance.
[20] Mr Bebb submits that the judge was wrong. He relies upon a passage in the speech of Lord Cooke in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] 3 WLR 1007, at p1019C:
[34] It is at this point that I see Solloway v Hampshire County Council (1981) 79 LGR 449 as important as a salutary warning against imposing unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise.
[21] Mr Bebb says that Portsmouth were not, in reality, given any opportunity to abate the nuisance. They were, in effect, presented with a fait accompli. They were not given a copy of the engineer’s report, nor asked to remove the trees or to reduce their height; they were simply told that the insurer intended to underpin the building. In so far as Portsmouth were given any opportunity, it was not a reasonable opportunity. They were not given the evidence upon which the decision to underpin was based, nor told what evidence there was that would, or might, have persuaded them that the trees were responsible for the damage. Portsmouth were not given a reasonable time to make their own enquiries and carry out their own tests and then make a decision as to what remedial work would be required. It had taken the claimant’s insurer from October 1990 until September 1992 to investigate and notify Portsmouth of the claim. In the circumstances, it was not surprising that, in the light of the letter of 2 September, Portsmouth had directed their enquiries to the issue of causation and not the abatement question. The judge himself made the point at [42] that his impression was that, if Portsmouth had been given more time, they “might have come round to questioning the suitability of the remedy”.
[22] I would reject this criticism of the judgment for the reasons advanced by Mr Palmer. What is a reasonable opportunity to abate the nuisance is a question of fact. The judge made a clear finding on this |page:102| issue. This court should be very slow to interfere with such a finding. Portsmouth did not respond to the letter of 2 September. They did not ask the insurer for time to investigate the cause of the damage or to explore other measures than underpinning. In particular, they did not ask for time to consider whether the problem could, or should, be solved by removal or severe reduction in the height of the offending trees. In any event, Portsmouth did not satisfy the judge that, if they had been given more time, they would have abated the nuisance by tree management. In this respect, it is significant that Portsmouth contested the issue of causation right up to the trial, and at no time following receipt of the letter of 2 September did they say that they would resolve the problem by removing or reducing the height of the trees.
[23] Mr Bebb accepts, rightly in my view, that the burden of showing that the claimant failed to give Portsmouth a reasonable opportunity to abate the nuisance rests on Portsmouth. This involves showing that: (i) they did not have sufficient time to abate the nuisance; and (ii) if sufficient time had been allowed, they would have ensured that the nuisance was abated. In my view, the judge was entitled to reach the conclusion that the burden of proof was not discharged in either respect. At the very least, Mr Bebb has not persuaded me that the judge was wrong so to conclude.
Was the underpinning necessary?
[24] At para 7 of the amended defence, Portsmouth pleaded: “in so far as the plaintiff claims damages for the costs of underpinning, it is averred that such underpinning was unnecessary and unreasonable and, in incurring any such cost, the plaintiff failed to mitigate his loss”. Portsmouth’s case, supported by their expert Mr Tim Freeman MA CEng MICE, was that the damage caused by the subsidence was not sufficiently significant in structural terms to justify underpinning. The judge rejected this case. At [47] of his judgment, he accepted the evidence of Mr Peter Kelsey CEng that the remedies available to prevent further damage to the property were “to remove or severely reduce the trees or to increase the depth of the foundations”. This last solution involved underpinning the foundations of the building. At [48], he said:
I conclude that it was not necessary to underpin the property provided, but only provided, that sufficiently effective management of the trees could be assured. No attempt was made on behalf of the claimant to obtain such assurance.
He then referred to the passage in the speech of Lord Cooke in Delaware from which I have already quoted, and continued:
Both parties failed to raise the question of management of the trees. The claimants may have so failed because of the advice received from their engineers. The defendant may have so failed because they were concentrating on questions of causation. However that may be, given that there was no assurance of management of the trees, underpinning was necessary. The only way in which I think it could be said that the costs of underpinning are not recoverable by the claimant would be on the basis that the claimant had unreasonably failed to mitigate its loss by failing to ask the defendant to manage the trees. No such argument was put before me; nor do I think that the point is a good one.
[25] Mr Bebb criticises this passage. He relies upon the following points: (i) it was common ground that tree management would have been an effective remedy; (ii) it was also common ground (as recorded at [12] of the judgment) that the investigations carried out by PEP “had some deficiencies”; and (iii) Mr Kelsey (the claimant’s expert) gave evidence that he would not have recommended underpinning in 1992 on the evidence then available. In these circumstances, the judge should have concluded that the view taken by PEP (viz that tree management would have been ineffective) was an unreasonable view, but he failed to make any finding on the point.
[26] In response, Mr Palmer submits that the judge should not be criticised for making no finding as to whether it was reasonable for PEP to take the view that tree management would be ineffective, since no such argument was advanced to the judge. I agree that, for the reasons given by Mr Palmer, the criticisms of the way in which the judge dealt with the underpinning issue are not well founded. PEP recommended underpinning. As the judge found, since there was no assurance from Portsmouth that the trees would be managed, underpinning was necessary. It is true that the claimant did not ask Portsmouth in terms whether they would remove or severely reduce the height of the two trees. But, as the judge pointed out, the mitigation argument was not put that way. The judge was entitled to say that, even if such an argument had been put, he would have rejected it. It is not surprising that he did not give reasons for this hypothetical answer. But there was ample material upon which it could be based. As Mr Palmer points out, even when given the opportunity to abate the nuisance, Portsmouth concentrated upon the issue of causation, and not abatement. They continued to dispute that the trees had caused the subsidence and damage up to and including the trial. I would therefore reject the challenge to the judge’s conclusion on the underpinning issue. The judge was entitled to conclude that the claimant acted reasonably in taking the course that it did. It is trite law that the onus is upon a defendant to show that a claimant has failed to take reasonable steps to mitigate his loss: see Clerk & Lindsell on Torts (18th ed) at para 29-02. Moreover, the measures taken by the innocent party to extricate himself from the difficulty in which he has been placed by the wrongdoer “ought not to be weighed in nice scales at the instance of the party whose [breach of contract] has occasioned the difficulty”: per Lord Macmillan in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, at p506. The question of mitigation is one of fact. I see no reason for disturbing the judge’s finding.
Conclusion
[27] I would therefore dismiss this appeal on all three issues.
Aldous LJ said:
[28] I agree.
Appeal dismissed.
