Hurst & Anor v Hampshire County Council

For highway-tree nuisance, statutory vesting of the highway may give the highway authority sufficient property in a tree to support liability to an adjoining owner. The Court of Appeal held that post-adoption trees vest in the authority for all purposes, and adopted the same approach for pre-adoption trees. Ownership is not displaced because roots extend into adjoining subsoil. Liability still requires reasonably foreseeable physical damage. The power under Highways Act 1980, section 96(1), includes pruning, but section 96(6) applies only to planted trees. The appeal was dismissed.

The respondents owned a house beside an ancient highway. An oak tree stood in the highway verge, and the respondents alleged that its roots extracted moisture from clay soil, causing subsidence and structural damage. The County Court awarded damages in nuisance and negligence, finding the damage reasonably foreseeable.

The Council appealed, arguing that it neither owned nor controlled the post-adoption tree, that section 96(1) of the Highways Act 1980 conferred only a power to maintain, and that past pruning did not create a continuing common-law duty. The central issue was whether statutory vesting gave the Council sufficient property in the tree to support liability in nuisance.

Appeal dismissed with costs. Lord Justice Stuart-Smith delivered the leading judgment. Lord Justice Morritt and Sir John Balcombe agreed.

1. Post-adoption trees. The statutory vesting of a highway gives the highway authority sufficient property in post-adoption trees to found an action in nuisance. This applies whether the tree was planted or self-seeded. The fact that roots later encroach into adjoining subsoil does not transfer ownership of the tree to the adjoining owner. Liability to an adjoining owner requires reasonably foreseeable damage. The finding of foreseeability was amply supported by the evidence, following Leakey v National Trust [1980] QB 485 and Solloway v Hampshire CC [1981] 78 LGR 449.
2. Pre-adoption trees. Although the post-adoption holding was sufficient to dispose of the appeal, the court adopted a consistent approach for pre-adoption trees. It held that they also vest in the highway authority for all purposes. The court rejected the distinction relied upon in Russell v Barnet London Borough Council (1984) 83 LGR 152 and expressly held that Stuart-Smith LJ’s earlier decision in Bridges v Harrow LBC (1981) 260 EG 284 had been wrongly decided.
3. Statutory scheme. Section 96(1) of the Highways Act 1980 includes power to prune and applies to all three categories of highway tree. Section 96(6) applies only to planted trees, not to every highway tree. Section 96(7) appears directed to misfeasance rather than non-feasance, but that issue was left undecided and no statutory compensation was claimed.
4. The alternative argument based on control derived from section 96(1), and any free-standing negligence claim apart from nuisance, did not require determination. The court observed that the negligence claim would present difficulty in light of Stovin v Wise [1996] AC 923.

• Court of Appeal (Civil Division): On 19 June 1997, dismissed the Council’s appeal with costs.
• Southampton County Court: Mr Recorder Meggeson awarded the respondents £78,823.91 in damages and interest on 15 April 1996.