Tree roots causing damage to respondent’s property — Appellants informed of potential claim but failing to abate nuisance — Defendants acting as landowners’ agent — Whether liability depending upon ownership, occupation or control of land — Appeal dismissed
The respondent owned property fronting onto a roadway that was lined with mature trees. These reached up to 16m in height, and included one that was situated 0.5m from the property’s northern boundary. The land upon which the trees grew was owned by Hampshire County Council, but the appellant council maintained it under an agency agreement. The agreement included routine maintenance of the trees.
The appellants failed to maintain the trees, leading to soil desiccation. In 1990, the property was found to be suffering from subsidence, and engineers recommended that it be underpinned. The respondent informed its insurers. Immediately prior to the commencement of the work (although before the respondent had entered into a contractual arrangement with the contractor), a loss adjuster made the appellants aware of the potential claim.
At first instance, judgment was given for the respondent. The appellants appealed that decision, contending that they were not responsible for the nuisance and had not been negligent. They submitted that: (i) the duty to maintain the land was vested by statute in Hampshire County Council, and could not be delegated to the appellants; (ii) the appellants had not given a sufficient opportunity to abate the nuisance, because the respondent had been on the point of commencing work when the appellants were informed; and (iii) in failing to give the appellants an opportunity to rectify the damage, the respondent had not mitigated its loss.
Held: The appeal was dismissed.
The rationale underlying the law of tort demonstrated that the key to responsibility lay in the degree of control that was exercised over the nuisance. It did not rest solely upon the issue of who owned or occupied the land. Although occupation could give control, it did not follow that an appellant had to have occupied the land in order to fix liability. Therefore, the question was whether an appellant had sufficient control over a hazard to avoid or abate a nuisance caused by it. In the instant case, the appellants had held sufficient control over the trees, in fact and in law, to enable them to eliminate or prevent the nuisance. They should have done so, since it was reasonably foreseeable that their failure to do so would result in damage to the respondent’s property.
In arguing that the respondent had failed to mitigate its loss, the appellants were required to prove that, having been informed of the damage, they would have acted appropriately in order to rectify the situation. The appellants had been made aware of the nuisance and the damage in time to request that the respondent delay instigating repairs until they had had time to investigate the allegation. However, since the appellants had responded by denying responsibility, they could not subsequently plead that, given more time to act, they would have removed the trees in order to remedy the damage.
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) appeared for the respondent.
Vivienne Lane, barrister
