L E Jones (Insurance Brokers) Ltd v Portsmouth City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS,Lord Justice Dyson,LORD JUSTICE DYSON |
| Judgment Date | 07 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1723 |
| Docket Number | A1/2002/0614 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2002 |
[2002] EWCA Civ 1723
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(HIS HONOUR JUDGE HAVERY QC)
Lord Justice Aldous
Lord Justice Dyson
A1/2002/0614
MR GM BEBB QC (instructed by Legal Department, Hampshire County Council, The Castle, Winchester, Herts SO23 8UJ) appeared on behalf of the Appellant
MR H PALMER QC and MR D CROWLEY (instructed by Plexus Law, London EC4A 1AF) Appeared on behalf of the Respondent
I invite Lord Justice Dyson to give the first judgment.
This is an appeal from the decision of His Honour Judge Havery QC given on 11th March 2002 whereby he decided that Portsmouth City Council ("Portsmouth") was 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 terrace house. There is a row of plane trees in London Road. One of these, growing outside number 210, is 0.5 metres north of the boundary with no. 2O8. It is a mature tree that was planted in about 1900. In 2001, it had a height of 14–16 metres. Another tree, growing outside number 206, is 2 metres south of the boundary with no. 2O8. It is a replacement of the 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 which gave rise to this litigation.
Cracks first appeared in the property in about 1990. The claimant instructed the Pearson Ellis Partnership ("PEP") to carry out an inspection. They are a firm of consulting engineers. PEP made a number of reports during the following months. In May 1992, they 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 on to the property. There is no appeal against these findings.
At all material times, Portsmouth was acting as agent for Hampshire County Council ("HCC") pursuant to an agency agreement. Until April 1997, HCC was the relevant highway authority. The first such agreement was dated 7th 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 22nd March 1988, clause 4.1 of which provided:
"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".
The judge found (paragraph 11) that no reduction of the crown of the trees took place between 1979/80 and at least 1993. An internal memorandum of Portsmouth dated 15th October 1992 indicated that at that time the two trees in question were 16 metres in height and had a spread of 12 metres. The judge found (paragraph 34) that one of the reasons why Portsmouth included in its 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 was 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 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" (paragraph 36). There is no appeal from any of these findings.
The issues
The following issues arise on this appeal.
(a) Was Portsmouth (rather than HCC) the right defendant?
(b) Did the claimant fail to give Portsmouth the opportunity to "abate" the nuisance?
(c) Was the underpinning necessary?
The wrong defendant
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."
On behalf of Portsmouth, Mr Bebb QC submits that the proper defendant was 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 1st April 1997: (the significance of this date is that, since then, Portsmouth has 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 its 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.
On behalf of the claimant, Mr Palmer QC submits that the undisputed fact that Portsmouth exercised control over the trees and exercised the power to maintain them pursuant to its contract with HCC was sufficient to form the basis of liability in nuisance and negligence.
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 21 st edition discuss the question "who is liable" in nuisance at page 64 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 page 67, the authors discuss the liability of non-occupiers and consider four categories under this heading: the liability of the creator of a nuisance (i.e. by misfeasance); the liability of one who authorises another to create or 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 does not fit neatly into any of these categories. But as I shall explain, the rationale which 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 which has brought about the nuisance.
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 which 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 ...
To continue reading
Request your trial
-
Mr Michael Hoyle (Suing as the Administrator of the Estate of his Late Son Mr. David Hoyle) v Hampshire County Council
...that defendants three and four did not have any control over the outcome of the survey. The Claimant relied upon LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2003] 1 WLR 427 on the question of duty. However, the facts were significantly different in that the Defendant in tha......
-
ABCI (formerly Arab Business Consortium International Finance & Investment Co) v Banque Franco-Tunisienne (Costs)
...In his extemporary judgment on costs the Judge referred to the relevant rules in CPR 44 and the cases of Reid Minty v Gordon Taylor (2002) EWCA CIV 1723, Kiam v MGN Ltd. (no.2) 2002 EWCA CIV 66 and Amoco v British American Offshore Ltd. (2002) BLR 135. Mr Milligan submits that these cases......
-
Ms Lorna Armstead v Royal Sun Alliance Insurance Company Ltd
... ... [2002] UKPC 48 ; [2002] 1 WLR 3111 ; LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] ... ...
-
Saqib Khan and Another v Harrow Council and Another
...was incurred because of the damage caused by the nuisance and that, as referred to by Dyson LJ in LE Jones v Portsmouth City Council [2003] 1 WLR 427 at [26] by reference to the speech of Lord Macmillan in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 at 506: " the measures taken by......
-
Particular Easements and Examples of Analogous Remedies of Relevance to Development
...in negligence and nuisance as it had sufficient control over the 54 [2000] QB 836. 55 [2001] EWCA Civ 760. 56 [1965] 1 QB 76. 57 [2002] EWCA Civ 1723. 40 Restrictions on the Use of Land offending trees by virtue of an agreement under which it was responsible for providing arboricultural ser......