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HURST AND ANOTHER v. HAMPSHIRE COUNTY COUNCIL [1997] EWCA Civ 1901 (19th June, 1997)
IN
THE SUPREME COURT OF JUDICATURE
CCRTF
96/0671/C
IN
THE COURT OF APPEAL (CIVIL DIVISION
)
ON
APPEAL FROM SOUTHAMPTON COUNTY COURT
(MR
RECORDER MEGGESON
)
Royal
Courts of Justice
Strand
London
W2A 2LL
Thursday
19th June 1997
B
e f o r e
LORD
JUSTICE STUART-SMITH
LORD
JUSTICE MORRITT
SIR
JOHN BALCOMBE
HURST
AND ANOTHER
Respondents
v.
HAMPSHIRE
COUNTY COUNCIL
Appellant
(Handed
down transcript of
Smith
Bernal Reporting Limited, 180 Fleet Street
London
EC4A 2HD Tel: 0171 831 3183
Official
Shorthand Writers to the Court)
MR
SIMON RUSSEN
(instructed by the solicitor of Hampshire County Council) appeared on behalf of
the Appellant.
MR
DERMOD O'BRIEN QC
and
MR
JOHN McDONALD
(instructed by Messrs C.A. Norris, Southampton) appeared on behalf of the
Respondents.
J
U D G M E N T
(As
approved by the court)
©Crown
Copyright
LORD
JUSTICE STUART-SMITH: This is an appeal from a judgment of Mr. Recorder
Meggeson given on 15th April, 1996, in the Southampton County Court whereby he
awarded the Plaintiff a total of £78,823.91 by way of damages and interest
against the Defendants. The Plaintiffs are the owners of a semi-detached house
at 213 Highlands Road, Fareham; the other part of the house is numbered 211.
This house was built in 1954. The Defendants are the Highway authority for
Highlands Road. In the verge of the highway outside the boundaries of 211
& 213 is an oak tree. It is between 170 and 190 years old. If the
dividing line between numbers 211 & 213 is extended out to the centre of
the road, the tree is on the 211 side of the line. Highlands Road is an
ancient highway originally maintainable by the inhabitants at large,
subsequently vesting in the Defendants or their predecessors. It is now
accepted that the tree was planted and grew after the highway had been
dedicated to the public.
In
1989 during a very dry summer the Plaintiffs’ house began to suffer
serious structural damage. It was the Plaintiffs’ case that the damage
was caused by subsidence due to moisture extraction or dehydration of the clay
soil by the roots of the tree. The Defendants disputed this; they maintained
that the damage was caused by rehydration of the soil resulting in heave rather
than subsidence. The Recorder resolved this issue in favour of the Plaintiffs;
and there is no appeal on this point.
The
Recorder also found that the damage to the Plaintiffs’ house from the
tree roots was reasonably foreseeable by the Defendants. Following the
decisions of this Court in
Leakey
v National Trust
[1980] QB 485 and
Solloway
v Hampshire CC
[1981] 78 LGR 449 this was a necessary precondition to liability in nuisance on
the part of the Council. The Recorder based this conclusion as to
foreseeability on the following matters: The tree was an oak which as a
species notoriously has a high water demand. The tree and the house were
situated on clay which is highly shrinkable; the geological survey clearly
showed the nature of the soil, which was in any event known to the Council;
the tree was 20 metres high and about 11-12 metres from the front of the
building, well within the danger area for a tree of that size and type. In his
notice of appeal and skeleton argument Mr. Russen on behalf of the Council
challenged the Recorder’s conclusion on foreseeability. He did not
develop this challenge in oral argument. In my judgment there was ample
evidence to support the Recorder’s conclusion on this point.
The
principal grounds of appeal challenge the legal basis upon which the Recorder
found the Council liable. The Plaintiffs’ claim as originally pleaded
alleged nuisance, negligence and breach of statutory duty. So far as the claim
in nuisance was concerned, it was alleged that the Defendants owned the tree or
exercised sufficient control over it to make them liable in nuisance. The
claim for breach of statutory duty, based upon s.96(6) of the Highways Act,
1980 (the 1980 Act) was abandoned.
Although
a number of authorities were cited to the Recorder, he does not refer to them
in his judgment and I have not found it easy to discern the basis upon which he
found the Council liable. He did not find that the Council owned the tree. He
found them liable in nuisance and negligence, seemingly on the basis that they
‘had power to maintain the tree and did so maintain it’. The power
to maintain is a statutory one contained in s.96 (1) of the 1980 Act. And
there was evidence that between about 1956 and 1984 the Council had pruned the
tree from time to time.
Mr.
Russen criticised the Recorder’s conclusion. In summary he submits that
s.96(1) provides a power only to maintain the tree. In the absence of a claim
based on s.96(6) there is no statutory duty to act and mere failure to do so
does not give rise to liability at common law. He relies upon the House of
Lords decision in
Stovin
v Wise
[1996] AC 923. The mere fact that the Council had pruned the tree in the past,
cannot of itself give rise to a duty to continue to do so. He submitted that
the tree was not the property of the Defendants, but of the owner of the
subsoil. He relied upon the presumption that the owner of land adjoining the
highway owned the soil up to the mid-line of the highway. On this basis he
initially submitted to this Court that the plaintiffs were the owners of the
tree. However it is clear that the tree is in fact on the 211 side of the
projected boundary between the two houses, so that if anyone other than the
council is the owner, it is the owner of 211.
In
the light of these submissions it is necessary to consider the way in which the
plaintiffs’ case has been presented to this Court. The primary
submission made by Mr. O’Brien QC on their behalf is that under the
statutory provisions whereby the highway was vested in the Defendants and their
predecessors the property in the tree also vested in them so that they became
owners of the tree or alternatively sufficient property in it to found
liability for nuisance. This submission was not made to the Recorder and he
cannot be criticised for not dealing with it. Mr. O’Brien’s
alternative submission is that the statutory power to maintain contained in
s.96(1) of the 1980 Act coupled with the exercise of that power by pruning the
tree for at least thirty years demonstrated sufficient control over the tree to
found an action in nuisance.
Before
considering the relevant statutory provisions, it is convenient for the purpose
of this judgment to divide trees growing in the highway into three categories:
1. Those
planted and growing in the highway before dedication/adoption of the highway by
the inhabitants at large or the highway authority. I shall refer to these as
pre-adoption trees.
2.
Those
planted or growing in the highway after dedication/adoption, but not planted
under statutory powers. I shall refer to these as post-adoption trees. The
tree in this case is a post-adoption tree.
3.
Those
planted under express statutory powers granted to the highway authority. I
shall refer to these as planted trees.
At
common law the owner of land over which ran a public highway did not lose any
of his rights of ownership whether of the surface or subsoil. Any trees
growing in the highway were his trees (1 Rolle’s Abridgement (1668) 392.
Goodtitle
v Alker
(1757) 1 Burr 133.
This
position remained the same until the Public Health Acts of 1848 (Section 68)
and 1875 (the 1875 Act) (Section 149) so far as urban streets are concerned.
S.149 of the 1875 Act provided so far as is material:
“All
streets, being or which at any time become highways repairable by the
inhabitants at large within any urban district, and the pavements stones and
other materials thereof, and all buildings implements and other things provided
for the purposes thereof, shall vest in and be under the control of the urban
authority.”
“Any
person who without the consent of the urban authority wilfully displaces or
takes up or who injures the pavement stones materials fences or posts of or the
trees in any such street shall be liable to a penalty not exceeding five
pounds, and to a further penalty not exceeding five shillings for every square
foot of pavement stones or other materials so displaced taken up or injured; he
shall also be liable in the case of any injury to trees to pay to the local
authority such amount of compensation as the Court may award.”
Highlands
Road is an ancient highway and is within the urban district of Fareham and the
highway would have vested in the district council at some stage under the 1875
Act, if not the earlier 1848 Act. Mr. O’Brien submits that the property
in the tree also vested in the council or their predecessor within this
section, or alternatively sufficient property in it vested in them to make them
responsible in nuisance.
Similar
provisions for the vesting of highways other than those in urban areas were
contained in S.29 of the Local Government Act 1929. Broadly speaking urban and
non-urban highways continued to be dealt with separately until the Highways Act
1959. The current provision as to vesting is contained in S.263(1) of the 1980
Act which provides that, subject to certain exceptions referred to in
Subsection (2), every highway maintainable at public expense, together with the
materials and scrapings of it, vests in the authority who are for the time
being the highway authority for the highway.
So
far as urban authorities are concerned the power to plant trees, provided they
did not become a nuisance to the users of the highway or adjacent owners or
occupiers, was first introduced by S.43 of the Public Health Acts Amendment Act
1890.
By
the Road Improvements Act 1925 similar provisions were granted to the Ministry
of Transport, county councils and highway authorities. Since the law has
remained substantially the same since that time I will set out the relevant
provisions.
Section
1 (1) provides:
“The
Minister of Transport (hereinafter referred to as the Minister) and any county
council or other highway authority shall have power to cause trees or shrubs to
be planted and grass margins to be laid out in any highway maintainable by him
or them respectively; and to erect and maintain guards or fences and otherwise
to do anything expedient for the maintenance or protection of such trees,
shrubs and grass margins.”
Section
1 (2) provides:
“No
such tree, shrub, grass margin, guard or fence shall be placed, laid out or
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 any land or premises adjacent to the
highway.”
Section
1 (5) provides:
“If
damage is caused to the property of any person by anything done in exercise of
the powers conferred by this section, that person shall, unless the damage was
caused or contributed to by his negligence, be entitled to recover compensation
therefor from the Minister, county council or other highway authority by whom
the powers were exercised.”
These
provisions were substantially re-enacted in the Highways Act 1959, Section
82(1) (5) & (6). It should be noted that the power it gave to do anything
expedient to maintain or protect trees was limited to trees planted by the
authority, i.e. ‘planted trees’. This was amended by the Highways
(Miscellaneous Provisions) Act 1961, S.5 so that the power extended to all
highway trees whether or not planted by the authority.
The
current statutory provisions relating to highway trees are contained in S.96 of
the 1980 Act. Subsection 1 provides:
“(1)
Subject to the provisions of this section, a highway authority may, in a
highway maintainable at the public expense by them, plant trees and shrubs and
lay out grass verges, and may erect and maintain guards or fences and otherwise
do anything expedient for the maintenance or protection of trees, shrubs and
grass verges planted or laid out, whether or not by them, in such a
highway.”
The
power to maintain trees, which in my judgment includes the power to prune them,
relates to all three categories of trees.
Section
96(6) provides:
“(6)
No tree, shrub, grass verge, guard or fence shall be planted, laid out or
erected under this section, or, if planted, laid out or erected under this
section, allowed to remain, in such a situation as to hinder the reasonable use
of the highway by any person entitled to use it, or so as to be a nuisance or
injurious to the owner or occupier of premises adjacent to the highway.”
This
subsection applies only to planted trees. In my opinion Tudor Evans J. was in
error in
Russell
v Barnet London Borough Council
(1984) 83 LGR 152 when he held at pp 170-171 that on the true construction of
the predecessor of this subsection, which was in substantially the same terms
(Highways Act 1959 (the 1959 Act) S.82 (S.1 as amended by Highways
(Miscellaneous Provisions Act 1961 (the 1961 Act) S.5), that the subsection
applied to all trees whether or not planted by the highway authority. It was
for this reason that the Plaintiffs, rightly in my view, abandoned their claim
in statutory nuisance.
Section
96(7) provides:
“(7)
If damage is caused to the property of any person by anything done in exercise
of the powers conferred by this section, that person is entitled, subject to
subsection (8) below, to recover compensation for it from the authority or
parish or community council by whom the powers were exercised.”
This
subsection refers back to subsection (1) and therefore applies to all
categories of trees. But it appears to be concerned with misfeasance rather
than non-feasance. However it is unnecessary to decide this point and we have
not heard full argument upon it. The Plaintiffs have not sought statutory
compensation within the subsection.
There
does not appear to be any comparable provision in the 1980 Act to that
contained in S.149 of the 1875 Public Health Act creating the offence of
damaging highway trees and providing for compensation. Under the Highways Act
1959, by S.117(2) it was provided that:
“If
a person, without lawful authority or excuse..
(a)
wilfully damages...a tree, hedge or shrub planted or laid out in a
highway....he shall be guilty of an offence.”
That
section was repealed and replaced by the Criminal Damage Act 1971. S.1(1)
provides:
‘A
person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as
to whether any such property would be destroyed or damaged shall be guilty of
an offence.’
By
S.10(1) 'property’ means property of a tangible nature whether real or
personal, but does not include the flowers, fruit or foliage of a plant (which
includes a tree) growing wild. A planted tree and its flowers, fruit and
foliage is within the section, so also is any other tree but not its flowers,
fruit or foliage.
By
S.10(2):
“property
shall be treated for the purposes of this Act as belonging to any person:-
(a)
having the custody or control of it;
(b)
having in it any proprietary rights or interest.”
Mr.
O’Brien is, I think, right in submitting that if a charge under S.1. of
the Act is laid in respect of a highway tree, whether or not it is a planted
tree, the property in the tree would be alleged to be in the highway authority.
Although
there is no provision comparable to that found in S.149 of the 1875 Act for
compensation to be paid to the highway authority under these Acts, since the
powers of Criminal Courts Act 1973, S.35, a criminal court has power to make a
compensation order, and such a compensation order in respect of a highway tree
could be made in favour of the highway authority.
So
far as planted trees are concerned it is clear that the highway authority will
be liable under S.96(6) if the roots of the planted tree cause dehydration to
the soil and consequent subsidence of a building adjacent to the highway.
In
my opinion the authorities also show that a sufficient property in
post-adoption trees also vests in the highway authority to ground an action for
nuisance both at the suit of the user of the highway who is injured as a result
of the dangerous condition of the tree and also at the suit of an adjoining
owner who suffers damage to person or property, provided the damage was
reasonably foreseeable.
Turner
v Ringwood
(1870) LR 9 Eg 418 was a case of post-adoption trees, but before any statutory
vesting of the highway. The highway extended to a width of 50 feet. After
adoption trees grew in that part not used as the actual road. The Highway Board
was held entitled to cut the trees and the Plaintiff who had bought the
adjoining land was not permitted to stop them. Sir W.M. James V.C. said at
p.422:
“The
right of the public is to have the whole width of the road preserved free from
obstructions, and is not confined to that part which was used as via trita."
The
Vice Chancellor reserved his opinion as to who owned the property in the timber
when cut.
In
Coverdale
v Charlton
(1878) 4QBD 104 the facts were these: By an award under an Inclosure Act
passed in 1766 a private road E was set out.. In about 1818 road E became a
public highway. A local board was formed in 1863 and in 1876 the board let the
pasturage upon E to the Plaintiff. He thereupon commenced to depasture the
herbage with his cattle. The Defendant interfered with the Plaintiff’s
enjoyment of the depasturage. By S.149 of the Public Health Act 1875 the
street vested in and was under the control of the local board. It was held,
affirming the judgment of the Queen’s Bench Division, that by virtue of
S.149 the property in the soil of E, being a “street” so far vested
in the local board that they could demise the right of pasturage thereon to the
Plaintiff, who was entitled to maintain the action.
The
first judgment was given by Bramwell LJ., and I shall have to refer to it but
it does appear that it lacks somewhat the clarity that was characteristic of
that great Judge. Brett LJ considered the language of S.149 and said at p.120:
“We
can give no other meaning to the words “vest in”, except to say
that it gives the property. It has been suggested that this meaning is so wide
that it would give to the local board cellars which may be under the street, or
houses that may be built over the street; or indeed, mines, however deep lying
under the street. But when we have decided that the words “vest
in,” mean to give a property in, a further question would be in what does
it give the property? That must depend upon the subject to which those words
relate, and that is not land, but street; the section does not say that the
land “shall vest in,” but that “the street shall vest
in.” I think that the case of
Brumfitt
v. Roberts
(1) is a guide in construing the section. The words of the private Act in that
case were, that the fee simple of the pew should be vested in the subscribers
or proprietors; the Court held that those words did not vest the land over
which the pew was. So here, the words of this section vest the property in the
street; and the street does not include the houses by the side of the street;
it includes the space between the houses which is used as the footway and the
roadway. “Street” means more than the surface, it means the whole
surface and so much of the depth as is or can be used, not unfairly, for the
ordinary purposes of a street. It comprises a depth which enables the urban
authority to do that which is done in every street, namely, to raise the street
and to lay down sewers; for, at the present day, there can be no street in a
town without sewers, and also for the purpose of laying down gas and water-
pipes. “Street,” therefore, in my opinion, includes the surface
and so much of the depth as may be not unfairly used, as streets are used. It
does not include such a depth as would carry with it the right to mines,
neither would “street” include any buildings which happen to be
built over the land, because that is not a part of the street within the
meaning of such an Act as this.
If
the enactment gives the local board that property in so much of the land, it
gives them the absolute property in everything growing on the surface of the
land.
The legislature have, because the right of owners to the soil in a
“street” is of so little value, intentionally taken away that right
and have given it to the extent I have mentioned to the local board.”
(My underlining).
On
the face of it the underlined passage would clearly include trees.
Cotton
LJ at p.126 said:
“
Therefore, on the true construction of this Act of Parliament, the meaning to
be given to the words “vest in” must be “passed to and vested
in” the local board; it is sufficient in the present case to say that the
street and the surface vested in the local board some property in the soil for
the purpose for which it was to be used, and in my opinion I must hold that the
“street” is a material thing, and that under this clause it vests
in the local board.”
Bramwell
LJ in dealing with the construction of S.149 said at p.116:
“And
on account of the reasonableness of such an interpretation I am disposed to
hold that this “street” vests without any property in the freehold
of the soil. The word “vest” may have two meanings; it may mean
that a man acquires the property usque ad coelum and to the centre of the
earth, but I do not think that to be the meaning here. One construction of the
word “vest” here is that it gives the property in the soil, the
freehold, the surface, and all above and below it; but that would be such a
monstrous thing to say to be necessary for the proper control of the streets by
the local board, that I cannot suppose it to mean such a thing. Suppose the
soil of the freehold passes, and consequently it carries the right to the land
to an indefinite extent upwards, and to the centre of the earth below the
surface: I cannot make up my mind to say that is the meaning of the word
“vest” in S.149.”
And
later:
“But
the inconvenience and injustice of holding that the word “vest”
would have that effect prevents my putting that construction upon it. What
then is the meaning of the word “vest” in this section? The
legislature might have used the expression “transferred” or
“conveyed,” but they have used the word “vest.” The
meaning I should like to put upon it is, that the street vests in the local
board qua street; not that any soil or any right to the soil or surface vests,
but that it vests qua street. I find some difficulty in giving it a meaning,
and I do not know how far it adds to the words, “shall be under the
control of.” The meaning I put upon the word “vest” is, the
space and the street itself, so far as it is ordinarily used in the way that
streets are used, shall vest in the local board. I will refer to a few
instances in support of this construction. The streets vest; the pavement, the
stones, and other materials vest; all buildings vest which would seem to mean
railways, and building implements which are chattels, and other things
“vest” in the local authority. This Act also provides that the
urban authority shall cause all streets to be levelled, paved, metalled,
flagged, channelled, altered and repaired as occasion may require; they may
cause the soil of any such street to be raised, lowered or altered as they may
think fit, and may place and keep in repair fences and posts for the safety of
foot passengers; any person who without the consent of the urban authority
wilfully displaces, or takes up, or injures the pavement stones, materials,
fences or posts, or the trees of such street shall be liable to a penalty not
exceeding 5L, and to a further penalty not exceeding 5s, for any square foot of
pavement stones or other material so displaced and injured; he shall also be
liable in case of injury to the trees to pay to the local authority such amount
of compensation as the Court may award. Does that mean that the local board
have a property in the tree and in the soil. I doubt very much whether that
ought to be the construction put upon that enactment, but if it is, it goes a
long way to show that the local board had such a property as they claim in this
herbage. Even if it does not, if it will not apply to the tree which although
surrounded by the street could be said in one sense to be no part of it, for
the public had no right to pass over where the tree stood; and if it does not
apply to a tree now in existence, but only to the trees the local board may
plant or become otherwise entitled to, why even then it would show that they
must have some property in the soil and its produce; that would assist the
contention in favour of the plaintiff.”
The
reference in the last sentence to trees where the public has a right to pass,
must be a reference to pre-adoption trees; on the other hand in the next part
of the sentence the dichotomy seems to be between trees now in existence, i.e.
pre and post-adoption trees and those planted by the highway authority.
Apart
from the dictum of Bramwell LJ it seems to me that the decision supports Mr.
O’Brien’s submission. It is difficult to see any logical
distinction between one type of plant, i.e. grass and shrubs, and another, i.e.
a tree, since a tree when the seed first germinates or the sapling is first
planted will be in that part of the soil which does vest in the highway
authority.
This
appears to have been the view of Clauson J. in
Stillwell
v New Windsor Corporation
[1932] 2 Ch 155. In that case the Plaintiff owned a house bounded on the west
and north by public highways. There were a number of post-adoption trees of
which the Plaintiff claimed the property. Having refused to comply with the
Defendant’s notice to remove the trees on the ground that they were
dangerous and obstructive to traffic, and the Defendants as highway authority
having, in consequence of the refusal, themselves removed three of the trees,
the Plaintiff brought the action seeking an injunction to restrain the
Defendants from removing the remaining trees. It was held that since the trees
which had been cut down were a nuisance to the highway the Defendants had not
merely a right but a duty to remove them: as to the remaining trees they were
authorised to remove them as being an obstruction to the rights of the public
over the entire width of the roads, which was not limited to the use of the
carriageways. And further that the trees, as being parts of the
‘streets’ or as produce of the soil thereof, vested under S.149 of
the 1875 Act, in and under the control of the highway authority, with the
result that the Plaintiff was not in a position to complain.
In
dealing with the argument that the trees vested in the Defendants as highway
authority under S.149 the Judge said at p.165:
“The
argument is that these trees, in the circumstances which I have stated and as I
find them to be, are part of the “street,” they are things provided
for the purposes of the street, the trees are planted and stand as trees in a
street, an amenity of the street, possibly, as marking off the footway from the
carriageway, a convenience and a protection to the public; and the argument is
that under that section they vest in and are under the control of the urban
authority. It is pointed out that, if the trees are injured, compensation for
the injury is to be paid by the local authority: that would suggest that the
property in the trees would be in the local authority. It is pointed out
further that a penalty is put upon persons who without the consent of the local
authority wilfully displace the trees; that would seem to imply that displacing
the trees with the consent or by arrangement with the urban authority would not
be an offence, which again fits in with the suggestion that the effect of this
section is to place the control and, in some sense or other, the property in
the trees in the local authority. In my view that is the effect of the section
as regards such trees as those with which I am here dealing. In my view, for
all the purposes of exercising the rights of the highway authority, these trees
are to be treated as the highway authority’s trees, and if they think it
convenient to remove them it is proper that they should remove them. I am not
called upon in this action to decide to whom the timber would belong when the
trees were removed."
In
coming to this conclusion I have to face this, that in the case of
Coverdale
v Charlton
4 QBD 104, 117, Bramwell LJ., in a judgment which has often been referred to,
expressed some doubt whether the effect of this section was to vest the
property in the trees in the highway authority. It was not necessary for the
purposes of that case to decide this point, but that case did determine this,
as I read it, that there was a right of property, of some kind at all events,
vested in the highway authority, in the herbage growing in the soil of the
highway; and I have some difficulty in seeing why there should not be a similar
right of property, however far it extends, in the other vegetable growth in the
soil of the highway which is constituted by the trees in the case with which I
have to deal.”
This
decision was followed at first instance by Stocker J. in
Solloway
v Hampshire C.C.
(unreported transcript 20 Feb 1980) at p.28. That was a case of a
post-adoption tree. The decision in favour of the Plaintiff was reversed on
appeal on the question of foreseeability. In
Russell
v Barnet LBC
83 LGR 152 Tudor Evans J. also expressed the view obiter at p.168 that
post-adoption trees vested in the highway authority. That was a case of a
pre-adoption tree and the judge distinguished the two types and held that
pre-adoption trees did not vest. He held the Defendants liable on the basis
that they exercised control of the trees, Mr. O’Brien’s second main
submission.
Mr.
Russen submitted that if the Plaintiff’s submission was correct S.96(6)
was otiose, because the highway authority would in any event be under a
potential liability in nuisance to road users and adjoining owners and
occupiers at common law. S.96(6) imposes a liability, he submitted, which
would not otherwise exist at common law. But in my judgment Mr.
O’Brien’s answer to this submission is correct. S.96(6) has been
inserted to guard against an argument which might otherwise be based upon the
principle in
Geddis
v Bann Reservoir
(1878) 3 App Cas 430, namely that if the statutory power to plant was
exercised without negligence, the highway authority would not be liable if the
consequence of the growth and redevelopment of the tree throughout its normal
life resulted in nuisance to users of the highway or adjoining owners or
occupiers. Moreover I would wish to reserve my opinion as to whether in an
action for breach of statutory duty relating to damage caused by planted trees
foreseeability was a necessary ingredient.
I
have no doubt that so far as post-adoption trees are concerned the property in
them vest in the highway authority for all purposes. If they were planted,
albeit not under statutory power as the tree in the present case possibly was,
they are planted for highway purposes in that part of the soil which plainly
vested. If they are self-seeded, again they are seeded in that part of the
highway which vests in the local authority. If as they mature, their roots
encroach into the subsoil which remains the property of the adjoining owner I
do not see how that makes the tree the property of the owner of the subsoil.
And I can see no logical distinction between trees and smaller shrubs, plants
or grass.
That
is sufficient to dispose of this appeal in favour of the Plaintiff. But both
counsel have urged upon us the view that there is no logical distinction
between pre and post-adoption trees so far as the liability of the highway
authority to adjoining owners is concerned. Mr Russen relies upon the decision
of Tudor Evans J. in
Russell’s
case and a decision of mine in
Bridges
v Harrow LBC
(1981) 260 EG 284 that the highway authority is not liable in nuisance to
adjoining owners in respect of pre-adoption trees to persuade us that the
highway authority is not liable for post-adoption trees. For the reasons I
have given already I reject this submission. Mr O’Brien submits that
Tudor Evans J. and I were wrong in those decisions. He points out that even in
relation to pre-adoption trees the highway authority is liable in nuisance to
users of the highway, as Tudor Evans J. recognised (see p.168). The law
extends to users of the highway the same protection in relation to nuisance on
the highway as an occupier of land enjoys in relation to a nuisance causing
physical damage emanating from the adjoining land. Moreover from a practical
point of view there is much to commend Mr O’Brien’s submission. It
may be very difficult to determine in any given case and without the expensive
advice of dendrologists whether the tree is pre or post-adoption. Much time
and expense may be taken in litigating this issue. Secondly in practice a
highway authority can not make any distinction in management between the two,
and in this case did not attempt to do so. If there is any logical basis in
the distinction it depends upon the fiction that in the case of a pre-adoption
tree there is a reservation from the public’s right to pass over the full
extent of the highway that part of the surface on which the tree is growing and
that the owner of the land at dedication intended to reserve the tree from the
dedication. This seems to me to be an unreal fiction, in the absence of an
express reservation. There are no authorities binding upon this Court which
preclude us from holding that pre-adoption trees vest in the highway authority
for all purposes, though I appreciate that Bramwell LJ’s opinion was to
the contrary. The penal and compensationary provisions in S.149, as he
recognised, suggests that the property of all trees rests in the highway
authority. I think that the time has come when the Courts should adopt a
consistent approach to all highway trees other than those already subject to
the statutory scheme now contained in S.96 of the 1980 Act. And I take this
view, notwithstanding that it involves holding that my previous decision in
Bridge's
case was wrongly decided.
In
these circumstances I do not find it necessary to deal with Mr.
O’Brien’s alternative argument based upon the control of the tree
deriving from the statutory powers in S.96(1) and the exercise of that power
over thirty years or more prior to the damage sustained to the
Plaintiff’s house. Nor is it necessary to deal with any free standing
claim founded in negligence apart from nuisance, though in my view such a claim
would present great difficulty in the light of
Stovin
v Wise
.
I
would dismiss the appeal.
LORD
JUSTICE MORRITT: I agree.
SIR
JOHN BALCOMBE: I also agree.
Order:
Appeal dismissed with costs.
© 1997 Crown Copyright
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