Damage from tree roots — Actions by two house-owners against builders and highway authority — Nuisance and negligence alleged — Questions raised as to contributory negligence and the application of the Limitation Act 1980 — Roots of oak tree growing in grass verge between carriageway and footpath — Clay soil beneath houses desiccated by action of roots spreading and leaching water from soil, causing subsidence — The two houses in question were part of a number erected by the builders on land belonging to them which had originally been farmland, and the oak tree which gave rise to this litigation had been part of a copse which was self-seeded — In due course, on completion of the houses, the land on which the tree was growing was dedicated by the builders as a highway and adopted by the highway authority — It was found by the judge that the tree was included in the dedication — It was after the exceptionally dry period from about May 1975 to August 1976 that the plaintiffs, who had purchased the houses from the first owners, noticed the signs of subsidence — When the houses were built in the 1950s builders were aware that the spread of tree roots could cause damage to the foundations, and that building should be avoided within a distance from a tree roughly equal to its height, but the desiccation of the clay subsoil by the extraction of moisture by roots was not then a matter of general knowledge — Eventually the owners were advised that underpinning was desirable and this was done — Held by Judge Newey, after a detailed consideration of the facts and law, that the builders were not liable in nuisance or negligence, either as creators of a potential nuisance or for any negligence before or after dedication; that the highway authority was liable in nuisance and negligence in respect of the period after the prolonged 1975-76 drought, when they should have taken remedial action; that the plaintiff house-owners’ claims were not defeated by contributory negligence on the facts, although they were negligent in not obtaining a structural survey before purchase, and that their claims were not statute-barred; that they were entitled to recover the cost of underpinning and modest sums for general damage (in respect of worry, inconvenience and disruption); and that the builders were not liable to the authority for a contribution on the ground of alleged negligence in providing the foundations
In these
proceedings George Low and Frederick John Carrick each brought an action
against the defendants, R J Haddock Ltd, builders, and the Royal County of Berkshire,
the highway authority, in nuisance and negligence, for loss and damage suffered
by the plaintiffs in respect of their houses at 57 and 59 Blewbury Drive,
Tilehurst, Reading, respectively. The defendants made contribution claims
against each other, the county alleging that the house foundations provided by
R J Haddock Ltd were inadequate.
Michael Brooke
(instructed by Badhams) appeared on behalf of the plaintiffs; John Foy
(instructed by Brain & Brain, of Reading) represented the first defendants,
R J Haddock Ltd; Adrian Cooper (instructed by Barlow, Lyde & Gilbert)
represented the second defendants, the highway authority.
Giving
judgment, JUDGE NEWEY said: This case concerns two semi-detached houses and an
oak tree. The houses are 57 and 59, Blewbury Drive, Tilehurst, Reading, owned
respectively by Mr Low and Mr Carrick. The oak tree is in a grass verge between
the carriageway and a footpath of Blewbury Drive and whether R J Haddock Ltd,
builders of the houses, and/or the Royal County of Berkshire, the highway
authority, are the owners and/or have the right and duty to control it are
among matters which are in issue.
The tree is
about nine metres from no 59 and a little further from no 57. It is not in
dispute that roots from the tree have extracted moisture from the predominantly
clay soil beneath the houses, causing it to subside, with loss of support to
the houses and the creation of cracks in them. Mr Low and Mr Carrick have on
the advice of Mr David Burt, consulting engineer, had their houses underpinned.
Mr Low and Mr
Carrick have each brought actions against Haddocks and the county council in
nuisance and in negligence. They allege that in order to protect the houses
Haddocks should have cut down the oak when they were built, that that not
having been done either Haddocks or the county council should subsequently
either have cut it down or prevented its root growth by reducing its crown and
boughs or by pruning its roots. They assert that events in 1975 should have
brought the risk of roots damaging the houses to the special attention of the
county and that events in 1977 should have brought the risk to the special
attention of Haddocks.
Both Haddocks
and the county deny Mr Low’s and Mr Carrick’s allegations. They also rely on
the Limitation Act 1980 and plead that if they were negligent Mr Low and Mr
Carrick were each guilty of contributory negligence in purchasing their houses
without first obtaining structural surveys. Haddocks have, subject to
liability, agreed Mr Low’s and Mr Carrick’s claims for special damage,
consisting largely of the cost of underpinning. The council, while accepting
the accuracy of the cost figures, deny that underpinning was necessary.
Haddocks and the county have each made contribution claims upon the other. The
county allege that the house foundations provided by Haddocks were inadequate.
Unfortunately
Mr Low was not well enough to attend court, but Mr Michael Brooke for him and
for Mr Carrick called Mr and Mrs Carrick, Mr Low’s daughter, Mrs Bristow, who
lives in a nearby road, Mr Zarfas and Mr Windiate, local residents, and Mr
Burt. Mr Brooke also put in evidence affidavits by Mr and Mrs Jenkins and Mr
Middleton, who are also local residents.
Mr John Foy
for Haddocks called Mr Wynn, the company’s managing director from 1950 to 1974,
Mr Pert, who was with the company from 1928 to 1969, was its outside manager in
the 1950s and later a director, Mr Sherbourne, managing director since 1958,
and Mr Sutherland, a consulting engineer.
Mr Adrian
Cooper for the council did not call any witness of fact, but he called Mr
Thomas Akroyd, consulting engineer, and also, briefly, Mr Hooper, a member of
Mr Akroyd’s staff.
I think that
all the witnesses did their best to tell me what happened. I was particularly
impressed by the frankness of the witnesses from Haddocks. There was a sharp
difference of opinion between Mr Burt, with whom Mr Sutherland broadly agreed,
and Mr Akroyd as to whether underpinning should have been carried out or
whether less expensive and disruptive measures would have sufficed. References
were made to a bundle of documents and to various technical publications.
Summary of
events
Haddocks have
been builders of housing estates in the Reading area since the 1930s. They have
long been aware that special care has to be taken when constructing foundations
in clay, but both Mr Wynn and Mr Pert told me that in the 1950s they did not
know that tree roots could desiccate clay by leaching water from it. Mr Wynn
said that if they found tree roots where they intended to build, they would
deepen or widen foundations or would change the site. Mr Pert said that they
would not ordinarily build within a distance from a tree equal to its height.
The reasons for these rules of thumb were fears that roots would penetrate
foundations and cause physical damage to them.
In 1949 the
Building Research Station published Digest No 3 which described how
roots could cause shrinking of clay, but both Mr Wynn and Mr Pert said that,
although Haddocks may have taken some trade publications, they did not learn of
the Digest nor of the information contained in it. The consultant engineers, Mr
Burt, Mr Sutherland and Mr Akroyd, agreed that it was improbable that a local
builder would have done so. In 1954 the Institution of Civil Engineers issued Civil
Engineering Code of Practice No 4 intended for engineers and not for
builders; it dealt extensively with the design of foundations, but without even
mentioning trees.
On August 6
1954 the Bradfield Rural District Council, acting as agent for the county
council, granted to Haddocks conditional planning permission to carry out
development in accordance with plans which had been submitted to them. The
plans provided for the laying out of Blewbury Drive and other roads and for the
erection of houses facing on to them. The site had been a farm before it was
bought by Haddocks. The oak tree formed part of a copse. The tree dated from
the 1920s and since there is no evidence to suggest that it was planted must be
taken to have been self-seeded. It would seem that the plans did not provide
for the preservation of any existing trees nor the planting of new ones, but
the district council favoured grass verges and trees in roads and Haddocks
wanted their new estate to be attractive so as to facilitate sales and for the
sake of their general reputation.
On June 9 1954
the county surveyor had written to Haddocks saying that if they wished their
estate roads to be taken over on completion by the county as repairable by the
inhabitants at large, they would have to be constructed to the county’s
standard specifications. Haddocks indicated that they wished the roads to be
taken over. On April 5 1956 they wrote to the county surveyor describing
Blewbury Drive as being laid out under the supervision of one of his
assistants. On November 16 1956 solicitors acting for Haddocks wrote to the
county surveyor referring to ‘Blewbury Drive with adjoining verges and
pavements’ having ‘been completely constructed’ and on December 6 1956 the
county surveyor replied stating that the works appeared to have been
satisfactorily carried out in accordance with the county’s standard
specification. The specification dealt with engineering requirements, but also
provided for the protection of trees, shrubs and what it called ‘greens’.
By letter of
December 29 1957 the county surveyor agreed that the 12 months’ ‘maintenance
period’, in respect of most of Blewbury Drive, that is to say the period during
which Haddocks remained responsible for remedying any defects in the road,
should be deemed to have commenced on December 1 1956. On January 2 1958 the
county formally declared Blewbury Drive to be repairable by the inhabitants at
large from that date, thereby adopting it.
Blewbury Drive
as laid out by Haddocks consisted of a carriageway, with verges and footpaths
on each side. In the verges a number of existing oak trees were preserved and
ornamental cherry trees were planted.
The houses
fronting on to Blewbury Drive were designed by Mr Wynn. Since they were to be
built on clay, Mr Wynn, after discussions with Mr Pert and with the chief
building inspector and a surveyor employed by the district council, decided
that their concrete foundations should be reinforced with steel. He thought
that reinforcement would produce a better job and provide some safeguard against
subsidence, and in substance all the consultant engineers agreed with him.
According to
Mr Burt’s unchallenged evidence his investigations revealed that foundations
beneath the main walls averaged 0.65 m in depth except at the front corner of
no 59 nearest to the preserved oak tree, where they went to a depth of 1.0 m.
Mr Wynn thought that the deepening might have been because of a local soft spot
in the ground possibly due to the presence of vegetation, or because a tree
root was found, or simply because it was where the foundations were nearest to
the tree. Neither he nor Mr Pert remembered the foundations being taken down
further than was usual; and it is possible that it was done without reference
to them.
There was no
evidence as to the height of the oak in 1955, but Mr Pert thought that probably
it was equal to or less than the distance from the tree to the nearest house,
on the assumption that the usual rule of thumb was followed. All the
consultants agreed that the depth of the foundations would be regarded as too
shallow for clay today, but Mr Burt and Mr Sutherland said that they would have
been considered acceptable at the time when they were constructed.
In June and in
August respectively in 1955 Haddocks sold 57 to Mr Cox and 59 to Mr Foster,
each for the sum of £300. Haddocks did not include in the sales any part of the
freehold of Blewbury Drive, but in each transfer covenanted to maintain it
until it was adopted by the county council.
In 1959 Mr Foster
sold 57 to Mr Low and to Mrs Low, who died on October 15 1977. The price paid
was £2,050. The Lows borrowed on mortgage, but Mrs Bristow did not know how
much. The Lows did not obtain a structural survey before buying.
In 1959 Mr Cox
sold 59 to Mr Carrick for £4,025, who obtained a loan on mortgage of £3,100
after a building society inspection for which he paid, but of which he did not
see the report. Mr Carrick did not obtain a structural survey. He knew that
purchasers sometimes obtained surveys, but no one advised him to obtain one. He
knew that the house had been built by Haddocks and that their reputation was
good.
After adopting
Blewbury Drive the county regularly cut the grass in the verges and from time
to time they trimmed the trees, including the oak. On no occasion did the
county seek the consent of or consult with Haddocks before carrying out tree
surgery. Mr Sherbourne first came to know that Haddocks had property rights in
Blewbury Drive and in other roads, which they have made and which the county
have adopted, as the result of this case.
Mr and Mrs
Carrick were ‘houseproud’ and redecorated their home regularly. No doubt they
also kept their garden in good order and it was, when cutting their front lawn,
that Mr Carrick noticed tree roots showing in it.
From about May
1975 to August 1976 there was an exceptionally dry period; according to Mr
Akroyd it was the driest in England for about 250 years. It was followed by
three months of heavy rainfall. In the summer of 1975 Mr Carrick noticed that
the step under the porch to his front door had sunk. He thought that the
subsidence might be due to the roots of the oak tree and he contacted the
county, who on September 15 1975 sent a Mr Lousley to inspect. On the same day
the county surveyor wrote to Mr Carrick saying that the county were reluctant
to have the tree removed.
On November 21
1975 the county surveyor wrote saying that in the considered opinion of the
county secretariat there was:
Nothing to
indicate that the oak tree has contributed in any way to any damage suffered by
your porch; similar damage has occurred to other porches in your area where
there are no trees. An early report mentioned cracks appearing in the dried out
clay soil of your garden; investigation proves that this has been a common
recurrence in all areas of clay soil this year and almost certainly has been
attributable to the hot dry summer.
The county
secretary informed Mr Carrick that he was entitled to remove roots within his
land. He ended by referring to the county surveyor’s promise to check the tree
and by saying:
I am sure
that he and his officers will keep your interests in mind when carrying out
their duties.
That the county
secretary was right in saying that other porches had been damaged without
involvement of trees was borne out by evidence of Mrs Bristow that her porch
had been affected.
Mr and Mrs
Carrick felt reassured; they thought that the county had expert knowledge of
trees and would not allow the oak to damage their house. In fact by 1979 local
authorities and most persons involved in the construction industry knew or
could have been expected to know that tree roots affected clay. The Building
Research Station issued Digest No 63 entitled ‘Soils and Foundations: 1’
in 1965, the National House Builders Registration Council issued a Practice
Note ‘Root damage by trees — siting of dwellings and special precautions’ in
1969, and there were various textbooks which dealt with the subject. The
National House Builders Registration Council note advised that a house should
not be built within two-thirds of the equivalent height of a tree in clay soil.
In the months
which followed, the Carricks did not observe any inspections being carried out
and in a letter received by the county on May 13 1976 Mr Carrick complained that
there had not been any and that the tree was very overgrown and might cause an
accident. He made no reference to his house.
After receipt
of Mr Carrick’s letter the county inspected the tree and they did so again in
1978. The card index notes of the inspections read:
1976 May.
Crown reasonably low — 8 ft or so off the ground — leave for present.
1978. Prune
bottom limbs over highway and raise crown.
There is no
indication that the county considered whether the tree needed to be reduced in
size so as to bring about a reduction in the zone from which its roots needed
to extract moisture. The records are brief, but the inspections seem to have
been directed solely to considering whether the trees were having an adverse
effect on the highway.
After the 1978
inspection some pruning of the oak was carried out. In the same year the county
employed contractors to fell another oak, which was near to Mr Zarfas’ house,
because it was rotten.
In 1976 and
1977, which were between the years of the county’s two inspections of the oak,
doors to the living-room, kitchen and a front bedroom in 59 began to stick and
a small crack appeared above a door. In 1977 Mrs Carrick sought help from
Haddocks. Mr Sherbourne called and, after inspecting, told Mrs Carrick that
doors were weak points in houses, but he thought that the sticking was due to
materials expanding at different rates and that the movement appeared to have
stopped.
Mr Sherbourne
thinks that on leaving 59 he noticed the state of the step, thought that it
might have been caused by roots from the oak and advised Mrs Carrick to contact
the county. Mrs Carrick thinks that she must have told Mr Sherbourne about her
and her husband’s earlier approach to the county and she does not remember Mr
Sherbourne advising her to contact them again. Since the Carricks did not make
any fresh approach to the county, I do not think that Mr Sherbourne did suggest
that they should. I accept, however, that he did think that the oak might have
affected the step. He could have written to the county himself, but, since it
did not occur to him that Haddocks might have been personally involved, it is
not surprising that he did not.
At Whitsun
1979 the Carricks papered their sitting-room without noticing any cracks in it,
but on their return from holiday in August they were dismayed to see puckering
in the wallpaper, obviously due to cracks. Cracking was also noticed in the two
front bedrooms. Later the plasterboard in the rear bedroom moved from its
ceiling joints. From this time onwards Mr and Mrs Carrick kept a close watch on
cracks. They noticed that their widths varied with the seasons. Mr Carrick
thought that some became as wide as half an inch in the summer, but Mr Akroyd
doubted whether that could be so in view of their narrowness in winter. I do
not think that the cracks did become quite as wide as Mr Carrick believes that
they did, but they certainly widened and must have been worrying.
As the result
of what the Carricks said about their house, Mrs Bristow examined 57 and found
cracks in the sitting-room and front bedroom. Mr Low tried to fill some of
them, but could not achieve a satisfactory finish. Cracks were observed
externally by the front sitting-room window. Mr Low contacted Haddocks and one
of their employees, acting on his own account, repointed the area involved.
Difficulties were encountered in closing doors, including the front door, which
came open on one occasion when Mr Low was out.
Mr Carrick
communicated with the insurers of 59 and then, as there was a substantial
excess in the policy, took out an additional mortgage to enable him to finance
the obtaining of a report from a consultant engineer. Mr Burt was instructed
and as the result of his initial inspection on January 18 1980 loss adjusters
wrote to the county on February 20 1980, stating that investigations had shown
that damage had been caused by removal of water by the oak. It was the first
complaint which the county had received concerning the tree since 1975. On May
14 1980 Mr Burt had a trial pit dug. He concluded that the cracking was due to
desiccation of the clay subsoil by extraction of moisture by roots from the
oak, resulting in subsidence. His advice at the time was that the roots be
eradicated, when he hoped that the clay would recover and underpinning be avoided.
Contact was
made with the county, which resulted in a meeting between Mr and Mrs Carrick
and a member of the county solicitor’s department, at which Mr and Mrs Carrick
were told that the oak was not the responsibility of the county and that it was
owned either by Haddocks or by themselves. On December 11 1980 solicitors
acting for the Carricks wrote to the county refuting their assertions. On
September 9 1981 the solicitors wrote to Haddocks and to the county indicating
that proceedings would be brought.
In about
December 1981 Mr Burt inspected 57, in which he found cracks which were more
conspicuous than those in 59 because the state of decoration was not as good.
On July 13 1982 Mr Burt took two further trial holes, one at the front and one
at the rear of the houses. He found roots in both, which led him to conclude
that the roots had penetrated the whole of the subsoil beneath both houses and
their foundations. The cracking was not severe, but it was getting worse.
Because of the extent of the roots Mr Burt feared that, if they were
eliminated, the clay would then suck in water to make good the desiccation,
which would cause ground heave and affect the foundations. He also believed
that the desiccation of the clay and its subsequent wetting would reduce its
shear strength. He therefore advised that the houses be underpinned and his
advice was accepted.
On April 6
1982 Mr Carrick issued a writ against Haddocks and the county and on October 14
1982 Mr Low issued a writ.
On December 10
1982 Mr Sutherland and Mr Hooper representing Mr Akroyd inspected both houses
and at the end of February 1983 underpinning began. Mr Low very reluctantly
moved out of 57 until the end of May, but Mr and Mrs Carrick and their two
adolescent children remained in occupation During the underpinning Mr Carrick
spent a month at home recovering from a serious accident and one of the
children spent six weeks at home suffering from glandular fever. When Mr Low
returned to his house the work had not been completed and, although most of it
was carried out in 3 1/2 months, the last items of redecoration were not
finished until November 1983.
According to
Mrs Bristow, the experience ‘aged’ her father. The Carricks, who had been
anxious before the work began and had on advice left parts of their house
undecorated, had to endure builders’ huts in their garden, being without
curtains for 3 1/2 months, dust, escapes of their dog and complaints from
neighbours about skips in the road.
During the
course of the underpinning Mr Burt carefully recorded: the foundations, which
he found intact; the underlying ground, which included substantial lenses of
clayey soil and gravel capable of acting as paths for roots; roots which, while
they do not extract water, carry it; and rootlets or hair roots, which, while
capable of surviving for only a few months, extract moisture.
In the light
of the information which Mr Burt obtained during the underpinning he now
believes that his advice of 1981 was mistaken and that already by 1979
underpinning had become the only practical solution. Mr Sutherland neither
agreed nor disagreed with Mr Burt’s hypothesis as to loss of shear strength due
to successive drying and soaking, but suggested that any loss would not be
significant, because of the relatively light loading of the foundations. He
agreed with Mr Burt’s decision to underpin as he took the view that the
house-owners were entitled to have marketable properties, which, in the absence
of underpinning, they would not have had until attention to the oak had
resulted in stabilisation, which might not have occurred for a long period.
Mr Akroyd, who
has had great experience of investigating foundation failures, thought that on
the information available to the county they were justified in not taking
action in relation to the oak tree. He said that since the foundations were
intact and the cracks were so slight, at most it would have been sufficient to
have felled the oak tree and to have treated the cracks cosmetically.
Mr Akroyd drew
attention to Building Research Digest 251 of July 1981 which classifies
damage brought about by subsidence and suggests remedies. The third category is
‘slight’ which reads:
Cracks easily
seen. Redecoration probably required. Recurrent cracks can be masked by suitable
linings. Cracks not necessarily visible externally. Some external repointing
may be required to ensure weather tightness. Doors and windows may stick.
The fourth
category is ‘moderate’:
The cracks
require some opening up and can be patched by a mason. Repointing of external
brickwork and possibly small amount of brickwork to be replaced. Doors and
windows sticking. Service pipes may fracture. Weather tightness often impaired.
Mr Akroyd said
that the damage to 57 and 59 came within the ‘slight’ category. He disagreed
with Mr Burt’s views as to loss of shear strength and he did not think that
heave would be great enough
to it when it was not necessary was a waste of the nation’s resources.
Whether
oak tree included in dedication of highway
Nos 57 and 59
must have been built between August 1954, when Haddocks were granted planning
permission, and June 1955, when the first of them was built. At that time
Haddocks owned the freehold of the oak tree, the houses and the land round
about generally. They had exclusive rights.
Haddocks must
have laid a track to enable them to take building materials to the sites of 57,
59 and other new houses. Almost certainly to save expense they laid it on the
line of the future carriageway of Blewbury Drive.
On completion
of the houses, Haddocks, as photographs which are before me show, provided
front gates and fences, leaving between those facing each other a continuous
strip, including the track, which house-owners, their families, tradesmen and,
indeed, the public generally were free to use for passage with vehicles or on
foot. I think that at that stage Haddocks as freeholders dedicated the strip as
a highway and the public by using it to pass and to repass accepted the
dedication.
Since it is
quite certain that Haddocks were the owners of the land which they dedicated
and they did not convey any interest in it to the frontages, there is no room
for any application of a presumption that owners whose land adjoins a highway
each owns to the middle of it. I think that in practice the presumption can
only be used in respect of ‘ancient’ (in effect pre-Highways Act 1835) highways
or where there is a dearth of information as to ownership as in Russell
v London Borough of Barnet (1984) 27 EG 699 (Tudor Evans J).
Mr Cooper
submitted that notwithstanding the dedication the oak remained the sole
property of Haddocks and did not form part of the highway. He referred me to
passages in Pratt and Mackenzie’s Law of Highways (21st ed, p 22) and in
Halsbury’s Laws of England (vol 21, p 70), to the effect that trees
belong to the owner of the soil of a highway.
The view that
at common law trees which existed before dedication are excluded from a highway
appears to be based on a passage in Serjeant William Salkeld’s Digest of
Cases from the reigns of William and Mary and Anne, 3 Salk 182, 91 ER 764,
and part of a judgment of Lord Mansfield CJ in Goodtitle v Alker (1757)
I Burr 133 at p 144, 97 ER 231 at p 236. The latter was referred to by
Stuart-Smith J in Bridges v Harrow London Borough (1981) 260 EG
284, [1981] 2 EGLR 143, in which, after consideration of all the facts, the
tree was held not to have been dedicated.
The passage
from Salkeld reads:
Adjudged . .
. for the freehold of the soil is in the Lord of the Manor, or in the owner of
the land on each side; and if there are trees and other profits there, they
belong to him.
There is no
indication as to who reached that conclusion or when.
Lord Mansfield
quoted from I Roll Abr 392 B, p1 1, 2 the words:
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
and then
added:
So do all the
trees upon it, and mines under it (which may be extremely valuable).
Words of Lord
Mansfield command respect, but, since Goodtitle’s case was an action for
ejectment against a frontager who had built a house encroaching on the highway,
in this instance they must have been obiter. In any event, in the mid-18th century
few ways were made up and, apart from carts, traffic was almost entirely on
foot, human or animal (see Sidney and Beatrice Webb’s The King’s Highway
chap 5), and it would not have been surprising to have a highway which followed
a winding course between trees. In those days trees were not regarded as
amenities for public highways.
I do not think
that there can be any inflexible rule or even presumption that trees in
existence before dedication of a highway are excluded from it. It is clear,
however, that since an owner is not obliged to dedicate a highway, he is free
if he wishes to dedicate it subject to obstructions, such as a cellar flap or
steps leading to a house; Fisher v Prowse, Cooper v Walker
(1862) 2 B&S 770, 121 ER 1258. Similarly, he may, if he wishes, exclude
from dedication a tree or trees. Whether he does so or not must I think depend
upon his intention, which is to be inferred from all the relevant facts.
At common law
the dedicator of a highway has no obligation to maintain it: Haddocks’ obligations
in that respect were, therefore, only those under their covenants with the
purchasers of 57, 59 and doubtless other houses. In fact Haddocks proceeded to
lay out the new highway under the county’s supervision and in accordance with
their specifications. Existing trees were preserved, new ones planted and grass
verges provided, which the public could walk upon and, except where there were
pavement crossovers to houses, would have to cross in order to pass between
footpaths and carriageway. By the 1950s trees and grass were almost universally
regarded as desirable constituents of highways and they were, of course,
referred to in the county’s specifications.
In my opinion
there can be only one inference from what Haddocks did, namely, that they
intended that everything between the fences should form Blewbury Drive; they
intended to dedicate the trees along with everything else. Any other conclusion
would I think be wholly unrealistic.
The public
would not be able to pass where the actual bole of a tree was, but they would
be able to benefit from the tree visually and obtain from it shelter from sun
or rain. If the tree died, its site would not form a small enclave excluded
from the highway, but would continue as part of it.
County
council’s rights and powers in adopted highways
On the county
council’s adopting Blewbury Drive, section 29(2) of the Local Government Act
1929 applied, whereby the road, ‘the materials thereof and all drains belonging
thereto’ vested in the county. The effect of vesting was to confer upon the
county an estate in fee simple absolute determinable in the event of the road
ceasing to be a highway by reason of stopping up or diversion. The estate is
one of those very rare legal ones made possible by section 7(1) of the Law of
Property Act 1925 as amended by the Law of Property (Amendment) Act 1926. See Tithe
Redemption Commission v Runcorn Urban District Council [1954] 2 WLR
518, CA. The road and drains belonging to the highway remained vested in the
county under sections 226 and 227 of the Highways Act 1959, and continue to be
under subsequent legislation.
The county’s
estate is in the road as dedicated. It has to extend beneath the surface as is
necessary. The depth of the carriageway will extend to foundation levels and
the drains probably lower. If I am right in thinking that the trees form part
of the highway, then logically their roots must also form part of it.
Beneath
whatever is vested in the county is soil in which Haddocks continue to have a
legal estate. Since public utilities have statutory rights to lay services
beneath highways and most minerals are now vested in the Crown, there would
appear to be little scope for Haddocks either to exercise control or derive
benefit from their ownership of the subsoil.
Prior to 1959
there were doubts as to the rights of highway authorities either when making
highways up or at other times without first finding the owner of the subsoil
and obtaining his consent. There had also been uncertainties as to the right of
authorities to spend money on trees and other amenities.
The Act of
1959 conferred upon the county extensive powers to alter widths and levels of
carriageways, footways and verges and also under section 82(1) at the public
expense to plant trees and ‘otherwise do anything expedient for the maintenance
and protection of trees . . . planted’.
As to trees
section 82(5) also provided that (omitting irrelevant words):
No tree . . .
shall be planted . . . or, if planted . . . 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.
If damage were
caused, compensation could be obtained under section 82(6) to be determined in
the case of dispute by arbitration or by the county court.
The Highways
(Miscellaneous Provisions) Act 1961, section 5, amended section 82(1) of the
1959 Act by adding to it:
Whether or
not by them, in such a highway
so providing —
or perhaps making clear — that the authority could maintain and protect trees
even if they had been planted by persons other than themselves, for example,
before dedication. From then onwards section 82(5) must also have been applied
to trees which had not been planted by the county.
Section 82(1)
neither in its original form nor in its amended form was expressed so as to
apply to trees which were self-seeded. Since section 82(6) provides the remedy
of compensation for damage
under section 82(1) and (5) could probably not be brought. It has not been
suggested that the right to claim compensation in respect of trees to which the
section applies precludes the bringing of an action for breach of any common
law duty relating to them. I think that at most section 82 only enlarged the
county’s powers and duties. If I am right in thinking that the section does not
extend to self-seeded trees, such as the oak tree, it has no application to
this case.
In Stillwell
v New Windsor Corporation [1932] 2 Ch 155 Clauson J considered the
common law position of a highway authority in relation to trees planted in an
ancient highway with, as he inferred, the consent of the owner of the highway
at the material time. Clauson J decided that if the trees were a nuisance to
the highway the authority had both the power and the duty to remove them.
In Solloway
v Hampshire County Council (1980) unreported* roots from one of a line
of trees planted in about 1874 in a footpath which had either formed part of a
highway, which existed in 1832 or had been added to the way, caused damage to
the foundations of a frontager’s house. It was submitted on behalf of the
highway authority that since they had not planted the tree, it did not come
within section 82(5) and that they had no responsibility for it. Stocker J
rejected the submission, holding that the authority had sufficient interest and
control over the tree to make them responsible in nuisance. This conclusion was
not challenged when the case went to appeal.
*Editor’s
note: The decision of Stocker J at first instance was unreported. The decision
of the Court of Appeal was reported at (1981) 258 EG 858, [1981] 1 EGLR 129.
In Russell
v London Borough of Barnet (1984) 271 EG 699, [1984] 2 EGLR 44, to which
I have referred previously, a case concerning trees which were held to have
been planted before the road was adopted, Tudor Evans J quoted Stocker J in Solloway
and expressed agreement with him. Tudor Evans J said at p 782:
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 . . . since 1961, with legal
authority, exercised control over them.
The reference to
1961 was to the effect of the amendment Act of that year, which applied because
the trees had been planted. However, I think it clear that quite apart from
that provision the learned judge thought the authority was responsible for the
trees.
In none of these
last three cases was any mention made of a legal freehold being vested in the
highway authority. In the light of the decisions and because of the rights and
duties ordinarily incidental to the ownership of land, I think that if the oak
was, as I have held, dedicated as part of the highway, the county had full
legal powers and obligations in respect of it. If the tree had not been
dedicated, in view of the county’s assumption of powers by pruning and the
like, I should have followed Tudor Evans J in Russell and held that they
could still be liable in nuisance.
If oak not
included in dedication what powers could Haddocks exercise over it
Mr Foy
submitted that even if the oak were not dedicated and it remained in the
ownership of Haddocks, they could not be liable in respect of it as they were
prevented from doing anything to it by section 117(2) of the Act of 1959, which
provided:
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.
Mr Cooper said
that irrespective of other considerations if Haddocks were the owners of the
tree they would have had ‘lawful authority’ for pruning it or the like.
It may be that
because of its wording section 117(2), like section 82(1) and (5), does not
apply to self-seeded trees and, therefore, not to the oak. If the section does
apply, ownership would obviously be an important consideration in deciding
whether a defendant had ‘lawful authority’ to ‘damage’ it, but I would not
expect it to be the only consideration.
In practice a
sensible tree owner would surely consult the authority in whose highway his
tree is set before doing anything which might constitute damage to it. Where
the authority has chosen to exercise powers over the tree, whether legally or
not, the owners might well be able to escape liability by proving that they
relied on the authority to take any necessary action.
When
natural processes may give rise to liability in nuisance
A private
nuisance most commonly takes the form of an occupier of land causing or
permitting something to happen on it which causes physical damage to his
neighbour’s property. The harm permitted may originate from a natural process,
but, if so, the occupier must or ought to have known of the process and have
foreseen that unless he took action to stop it damage would occur.
That nuisance
may result from a natural process, subject to the two requirements additional
to those normally needed for nuisance, of knowledge and foresight, was
established by the Privy Council in Goldman v Hargrave [1967] 1
AC 645, and by the Court of Appeal in Leakey v National Trust
[1980] QB 485. In Goldman’s case the occupier had failed to put out a
fire in a tree which had been struck by lightning, with the result that the
fire spread and burnt down an adjoining owner’s properties. In Leakey
the occupiers failed to prevent earth from a mound falling on to their
neighbours’ houses.
In Solloway’s
case in the Court of Appeal (1981) 258 EG 858, [1981] 1 EGLR 129 the appellant
conceded that this was the state of the law and the court, after consideration,
agreed at p 860 that the concession was rightly made.
Nuisance, when
knowledge and foresight of consequences are required for it, bears a strong
resemblance to negligence, but because it is a continuing wrong, it is much
more difficult to establish a limitation defence to it.
Whether
Haddocks in erecting houses were creators of a potential nuisance
Mr Brooke
submitted that when Haddocks built 57 and 59 as close to the oak as they did
and without felling it, they knew that it would continue to grow and ought to
have foreseen that its roots would be likely to cause damage to the foundations
of the houses. They thereby, he contended, created a potential nuisance for
which they became liable when, years later, an actual nuisance developed and
damage was caused.
Mr Brooke
relied on Pemberton v Bright [1960] 1 WLR 436, CA, in which in
1926 a highway authority had, when widening a road, extended a culvert on to an
adjoining owner’s land, but failed to fit to it a grid to prevent debris from
entering it and blocking it. From time to time the authority’s servants,
presumably with the licence of the owner, cleared the entrance to the culvert,
but in 1956 it became blocked and flooding resulted. The county council was
held liable as creator of the nuisance.
Mr Brooke said
that the fact that Haddocks could not in 1955 have foreseen the mechanism by
which the roots caused damage, namely extraction of moisture, was irrelevant,
since they could have foreseen that the roots were likely to cause physical
damage to the foundations. He cited Hughes v Lord Advocate [1963]
AC 837 and H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd
[1978] QB 79, in each of which the foreseeable damage was different from that
which occurred.
Mr Foy said
that in 1955 Haddocks built the houses at a proper distance from the oak tree,
with foundations which because of the reinforcement were better than those
ordinarily provided at the time; they had not, therefore, created a potential
nuisance.
I was
surprised by the idea that a person could be liable as creator of potential
nuisance, when at the time of the alleged creation he owned and occupied all the
land concerned. However, I think that it possibly could happen when, as in this
case, the party intended to sell part of his land. I think that Mr Brooke was
right in contending that, provided that the party foresaw the likelihood of
some damage occurring, it was not necessary that he should have foreseen the
precise type.
Pemberton’s case and this case differ in that in Pemberton the grill was
missing and the conduit open to debris from the beginning, whereas in this
case, when the houses were built, they were sufficiently far from the oak for
its roots not to damage them. Another difference is that the authority’s
servants in Pemberton were able to clean out the conduit from time to
time, whereas, as I have held, Haddocks could not after the adoption of
Blewbury Drive exercise any powers over the oak.
I think that
Haddocks were entitled to expect the county council as highway authority to
take whatever action is necessary to prevent the oak from becoming so large
that its roots would cause damage to the houses. In view of that expectation I
do not think that Haddocks ought to have foreseen that such damage would be
caused. In my
Whether
Haddocks liable in nuisance after county council adopted Blewbury Drive
There is no
evidence that the oak tree grew to any significant extent between the
completion of the houses in 1955 and adoption of Blewbury Drive at the
beginning of 1958. It seems improbable that it would have done because of the
disturbance of the surrounding soils caused by building of the houses and by
the construction of the carriageway and footpaths.
After the
adoption of the highway as dedicated and, therefore, including the oak,
Haddocks were not the owners of the tree and had no control over it. In my view
their position was not altered by Mr Sherbourne forming the opinion on his
visit to 59 in 1977 that the tree might have been responsible for the damage to
its step. In my judgment Haddocks are not liable in nuisance in respect of the
tree.
Even if
(contrary to my view) Haddocks did not dedicate the tree, I think that, since
the county were the highway authority and carried out tree surgery from time to
time without prior consultation, Haddocks could not have been expected to have
foreseen that the tree would be allowed to reach such a size as to cause damage
to the houses. Again I do not think that Mr Sherbourne’s visit would have made
any difference.
Whether
Haddocks liable in negligence
Before
Blewbury Drive was adopted by the county, Haddocks as owners and possessors of
the oak plainly owed a duty of care in respect of it. Since, however, for the
reasons which I have given in connection with nuisance, they could not have
foreseen that if they failed to fell or cut back the tree the county would
allow it to grow so as to cause damage, in my view Haddocks did not fail to
take reasonable care.
After the road
was adopted and Haddocks ceased to have rights in the tree, they also, I think,
ceased to owe any duties in relation to it.
Haddocks are
not liable in negligence.
Whether
the county council liable in nuisance
Since the
county were as highway authority owners of the oak and had rights and powers
over it, whether they are liable in nuisance depends upon whether they knew or
ought to have known that, unless the tree’s growth was restrained, its roots
would reach the houses and by leaching water from beneath them be likely to
cause damage.
I think that
the county must have known from before they adopted the road that tree roots
grow outwards and that there is a relationship between the size of the foliage
of a tree and the zone from which its roots extract water. At first the county
may only have known that roots could cause physical damage to foundations, but
from about 1965 when Digest 63 was published, they should also have been
aware of leaching.
Whether roots
from a particular tree are likely to cause damage to a particular house must
depend on the distance between them, the nature of the underlying soil, the
depth and type of foundations, the height and size of the tree and to a degree
upon how dry or wet has been the weather.
In this case,
even today the distance between the oak and 59 is apparently only about equal
to two-thirds of the height of the tree; a distance which is acceptable for new
building in the terms of the NHBRC Practice Note of 1969, although obviously
the note was written on the assumption that foundations would comply with the
Building Regulations of 1965.
The county
plainly knew that the underlying soil was clay and, since they knew when the
development took place, they could infer that the foundations were not as deep
as they could have been expected to be after 1965. They could see the size of
the tree for themselves. Up to 1975 there had not been any prolonged drought.
On balance I
think that up to 1975 the county could not have been expected to foresee that
the tree in its then state was likely to cause damage to either 57 or 59.
In my opinion,
Mr Carrick’s concern about his step in 1975 leading to consideration of roots,
the county’s undertaking to check the tree regularly with the Carricks’
interests in mind and the dry summers of 1975 and 1976 created a new situation.
From then onwards the county should have foreseen that unless the tree was
reduced in size the houses were likely to be damaged. In fact the only pruning
carried out was in 1978 and was directed to ensuring that branches of the tree
did not interfere with vehicles on the carriageways. In my opinion, after about
1976 the oak and its roots constituted a nuisance for which the county are
liable.
Whether
county council liable in negligence
So far as
negligence is concerned, I think that the county owed a duty of care to Mr
Carrick and to Mr Low not to let the oak damage their houses, that after 1975
(but not before) they failed to exercise reasonable care to prevent such damage
occurring and that since damage resulted they are liable to Mr Carrick and Mr
Low in negligence.
Whether
the county may rely upon the Limitation Act 1980 as affording a defence
I think that
it is clear on the evidence that the damage to the porch step of 59 was, as the
county asserted at the time, due not to roots but simply to lack of any
foundations and to clay cracking in a dry summer.
The first
damage suffered by 59 consisted of sticking doors and small cracks above one
door in 1976-7. Damage to 57 did not occur until a year or more later.
Mr Low and Mr
Carrick issued their writs in 1982. Their claim in negligence is not
statute-barred and a fortiori their claim for the continuing tort of nuisance
is not barred.
What
special damages are recoverable by Mr Carrick and by Mr Low
I think that
in terms of the classification of damage due to subsidence set out in Digest
251 the damage to 57 and to 59 was on the border between ‘slight’ and
‘moderate’. I sympathise with Mr Akroyd’s view that resources should not be
wasted upon unnecessary underpinning. It is possible that reduction in the
height of the oak and vigorous pruning of its branches coupled with the filling
of cracks and redecoration of the houses, possibly repeated more than once in
places, would have sufficed. The houses would not have been saleable at their
normal market prices until stability was reached, but the inconvenience
involved in having underpinning carried out would have been avoided.
The question
is, however, whether Mr Low and Mr Carrick acted reasonably in having the
underpinning done. They obtained expert advice from Mr Burt and acted on it. Mr
Burt, after carrying out a thorough investigation and being concerned to
achieve a reliable, permanent solution, which also took account of the prospect
of heave occurring if the tree were felled or cut back drastically, recommended
underpinning. I think that Mr Carrick and Mr Low acted reasonably and that they
may recover from the county the cost of underpinning, along with their other
special damage. The total amount which they will recover between them is
£37,018.14, but I shall need assistance in apportioning that amount between
them appropriately.
What
general damages are recoverable by Mr Carrick and by Mr Low
Neither Mr Foy
nor Mr Cooper took any technical point on Mr Carrick’s right to recover general
damages for the benefit of his wife. The amount which I award to Mr Carrick
will, therefore, be on account of both Mr and Mrs Carrick, while that which I
award to Mr Low will be for himself alone. The general damages are for worry,
inconvenience, general disruption and unhappiness, which all three sustained;
Mr Low being the most vulnerable.
I award £1,000
to Mr Carrick and £600 to Mr Low.
Whether Mr
Carrick and Mr Low were each contributorily negligent in buying a house without
first having it surveyed
In Perry
v Tendring District Council (1984) unreported*, after considering Sutherland
v C R Maton & Sons Ltd (1976) 240 EG 135, [1976] 2 EGLR 81 (Cobb J)
and Yianni v Edwin Evans & Sons [1982] 1 QB 438 (Park J), I
came to the conclusion that whether a purchaser’s failure to obtain a
structural survey of a house, which subsequently proved to be defective,
constituted contributory negligence depends entirely on the facts.
*Editor’s
note: Since reported at [1985] 1 EGLR 260.
In this case
both the Lows and Mr Carrick bought with the assistance of loans on mortgage. I
have no information with regard to the Lows’ mortgage, but Mr Carrick’s was for
about 75 per cent and was after the usual building society inspection, which
can never be an effective substitute for a proper structural survey. Unlike Perry’s
case, in which the purchaser’s solicitors raised the question of a survey, no
one mentioned one to Mr Carrick and probably none was
reputation.
I appreciate
that my views are likely to be coloured by the cases concerning defects which
come before me, but it does seem to me that a purchaser who commits most of his
life’s savings and undertakes to repay a large loan in order to buy a house
which he has not had surveyed is taking a terrible chance. Time had passed
between the building of the houses and the dates of purchase and, therefore,
despite Haddocks’ reputation, I think that Mr Low and Mr Carrick were both
contributorily negligent.
In this case,
however, I do not think that Mr Low’s or Mr Carrick’s failure to obtain a
survey matters, for there would have been no cracks or sticking doors for the
surveyor to have discovered and he, like Haddocks, would probably have
considered that the county could be relied upon not to allow the oak to cause
damage to the houses.
Whether
Haddocks were negligent in their provision of foundations
Since the
county are claiming contribution from Haddocks, I must deal with the question
whether Haddocks were negligent in providing the foundations which they did
provide.
I can do so
briefly because all the consultants agree that the foundations were in
accordance with standards which prevailed in 1954-55; indeed they were better
than usual because they were reinforced. Haddocks were not negligent in
providing them.
I should like to
express my gratitude to counsel for the assistance with which they have
provided me in this, in terms of money, small, but not uninteresting, case.
