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Le Jones (Insurance Brokers) Ltd v Portsmouth City Council
Factual and Procedural Background
This appeal arises from a decision of His Honour Judge Havery QC dated 11th March 2002, which held that the Defendant was liable in negligence and nuisance for damage caused by subsidence to the Plaintiff's property at 208 London Road, The City. The property, originally a terrace house, suffered cracks from about 1990, attributed to subsidence caused by desiccation of soil due to roots of mature plane trees growing adjacent to the property. The Defendant, acting as agent for the relevant highway authority pursuant to agency agreements, was responsible for maintenance of the trees. The judge found that the Defendant had sufficient control over the trees and was liable for the damage, although damages were not determined. This appeal addresses issues including the proper defendant, whether the Plaintiff failed to give the Defendant an opportunity to abate the nuisance, and the necessity of underpinning the property.
Legal Issues Presented
- Whether the Defendant or the highway authority was the proper defendant liable for the nuisance and negligence.
- Whether the Plaintiff failed to give the Defendant a reasonable opportunity to abate the nuisance.
- Whether the underpinning of the property was necessary and reasonable.
Arguments of the Parties
Defendant's Arguments
- The proper defendant was the highway authority, not the Defendant, as the statutory duty to maintain the highway could not be delegated.
- The agency agreement between the Defendant and the highway authority did not affect their statutory or common law duties of care prior to the Defendant becoming the highway authority in 1997.
- The Defendant did not have sufficient legal interest or control over the trees to found liability in tort.
- The Plaintiff failed to give the Defendant a reasonable opportunity to abate the nuisance before proceeding with underpinning.
- The underpinning was unnecessary and unreasonable; the damage was not structurally significant enough to justify it.
- The Plaintiff failed to mitigate loss by not pursuing tree management as an alternative remedy.
Plaintiff's Arguments
- The Defendant exercised control over the trees pursuant to its contract and this was sufficient to establish liability in nuisance and negligence.
- There was a foreseeable risk of damage from the trees, and the Defendant had the right and duty to manage them to prevent such damage.
- The Defendant was given notice of the claim and had an opportunity to abate the nuisance but did not request time or suggest alternative remedies.
- The underpinning was necessary because there was no assurance from the Defendant of effective tree management.
- The Defendant did not discharge the burden of proof to show that the Plaintiff failed to mitigate loss.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mint v Good [1951] 1 KB 517 | Liability of non-occupying owner with right to enter premises for repairs causing nuisance. | Supported the principle that control, not occupation, can found liability in nuisance. |
| Wilchik v Marks and Silverstone [1934] 2 KB 56 | Liability of non-occupying owner for nuisance related to failure to repair. | Referred to as part of the line of authority supporting owner liability based on control. |
| Heap v Ind Coope & Allsopps Ltd [1940] 2 KB 476 | Similar principle on liability of non-occupying owners for nuisance due to disrepair. | Used to illustrate legal basis for non-occupier liability. |
| Russell v London Borough of Barnet [1985] 83 LGR 152 | Liability of highway authority for subsidence damage caused by trees under their control. | Confirmed that control over trees, not ownership or occupation alone, establishes liability. |
| Solloway v Hampshire County Council (unreported) | Control over highway trees sufficient to establish liability for nuisance. | Supported the conclusion that control alone can found liability even without ownership. |
| Delaware Mansions Ltd v Westminster City Council [2001] 1 WLR 1007 | Requirement to give notice and reasonable opportunity to abate nuisance before liability for remedial costs arises. | Guided the court's assessment of whether the Defendant had a reasonable opportunity to abate. |
| Banco de Portugal v Waterlow & Sons [1932] AC 452 | Onus of proving failure to mitigate loss lies on defendant; innocent party's mitigation not weighed too finely. | Supported the court's approach to mitigation of loss by the Plaintiff. |
Court's Reasoning and Analysis
The court began by affirming the judge's findings that the damage to the Plaintiff's property was caused by subsidence due to desiccation of soil by roots of mature trees adjacent to the property. The Defendant, although not the owner of the trees or the land, exercised lawful control over the trees pursuant to agency agreements with the highway authority, which included the duty to maintain and manage the trees to prevent damage.
Liability in nuisance and negligence was grounded on the degree of control the Defendant exercised over the trees. The court emphasized that control, rather than ownership or occupation, is the key factor in establishing responsibility for nuisance. The Defendant had the right and duty to manage the trees, including reducing their height to prevent damage, and this sufficed to impose liability.
The court rejected the Defendant's argument that only the highway authority owed a duty of care, holding that the Defendant owed a tortious duty to the Plaintiff due to the foreseeability of damage and proximity between the parties.
Regarding whether the Plaintiff failed to give the Defendant a reasonable opportunity to abate the nuisance, the court accepted the judge's factual finding that the Defendant was notified before the Plaintiff committed to underpinning but did not request time to investigate or propose alternative remedies such as tree management. The burden rested on the Defendant to prove lack of reasonable opportunity and that it would have abated the nuisance if given time, which it failed to discharge.
On the necessity of underpinning, the court upheld the judge's conclusion that underpinning was necessary in the absence of assurance from the Defendant that the trees would be effectively managed. Although tree management could have been an alternative, the Plaintiff acted reasonably in proceeding with underpinning given the circumstances and the Defendant's failure to engage on abatement.
Holding and Implications
The court DISMISSED THE APPEAL, affirming the trial judge's decision that the Defendant was liable in negligence and nuisance for damage to the Plaintiff's property caused by subsidence related to the adjacent trees.
The decision confirms that lawful control over trees causing nuisance can found liability in tort even absent ownership or occupation. It also reinforces the principle that a defendant must be given reasonable notice and opportunity to abate a nuisance before remedial costs are recoverable. The ruling directly affects the parties by upholding the Defendant's liability but does not establish new legal precedent beyond applying established principles.
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