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L E Jones (Insurance Brokers) Ltd v Portsmouth City Council, Court of Appeal

14 November 2002
The issues

Tree roots – negligence.

The facts

Up until 31st March 1997, Hampshire County Council was the Highway Authority responsible for maintaining street trees in Portsmouth. Hampshire had an Agency Agreement with Portsmouth City Council whereby Portsmouth provided an Arboriculture Service for Hampshire, which included the inspection and maintenance of the trees. After the 1st April 1997, Portsmouth became a unitary authority and relevant highway authority. The Claimants suffered damage to their property, allegedly caused by tree root subsidence. They owned a property in London Road, outside of which was a row of plain trees. One tree was 2 metres South of the boundary with their property and another grew outside the adjoining property and was half a metre north of the boundary with number 208. Cracks were first noticed in 1990 by the Claimants, who asked a firm of Consulting Engineers to look at the property. The Engineers suggested that the property ought to be underpinned.

The Judge found as a fact that the cause of the subsidence was tree-root desiccation. Portsmouth alleged that Hampshire were the correct Defendant, since they were the highway authority for the relevant period. The Judge found that the lawful exercise of control over the trees was sufficient to make the Defendant capable of liability and nuisance to the Claimant in the absence of ownership. Potential liability of the Defendant was not dependent on ownership or occupation, nor was it excluded because there was a potential liability on the part of the highway authority for the same negligence. The Defendant Council appealed.

The decision

It was not necessary to decide whether Portsmouth was an occupier. They had the right and duty to maintain the roads on the basis that the Agency Agreement gave Portsmouth sufficient control in fact and law to prevent or eliminate nuisance.

There was also a liability in negligence. Although Portsmouth argued that it owed a duty only to Hampshire, this was no the view of the Court. The mere fact that Portsmouth owed a contractual duty to Hampshire did not mean that they did not owe a duty to anyone else.

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