LE Jones (Insurance Brokers) Ltd v Portsmouth City Council

Liability in private nuisance can attach to a person who neither owns nor occupies land where that person has sufficient legal or factual control over the hazard. The source of that control, including a contractual agency arrangement, is immaterial. A public authority exercising tree-management functions may also owe a tortious duty of care where damage is foreseeable, proximity is sufficient, and it is just and reasonable to impose liability. A defendant alleging that remedial expenditure was avoidable must show both that the claimant lacked a reasonable opportunity to pursue abatement and that abatement would have occurred. Where effective tree management is not assured, underpinning may be a reasonable mitigation measure.

LE Jones (Insurance Brokers) Ltd v Portsmouth City Council concerned subsidence damage to commercial premises caused by desiccation from the roots of plane trees growing beside a public highway. The High Court held Portsmouth City Council liable in nuisance and negligence, leaving damages to be determined.

Portsmouth appealed on three issues: whether Hampshire County Council was the proper defendant; whether the claimant had failed to give a reasonable opportunity to abate the nuisance; and whether underpinning was necessary and recoverable as a reasonable mitigation measure.

Dyson LJ gave the judgment, with Aldous LJ agreeing. The appeal was dismissed on all three issues.

1. Control and nuisance. Liability in nuisance is not confined to an owner or occupier. The relevant question is whether the defendant had sufficient control, in law or in fact, over the hazard to prevent or eliminate the nuisance. The contractual source of Portsmouth’s control was immaterial. Its right and duty to maintain the trees included reducing their height where necessary to prevent damage. The reasoning in Mint v Good [1951] 1 KB 517 and the scope of Russell v London Borough of Barnet [1985] 83 LGR 152 supported that conclusion. Hampshire County Council’s possible concurrent liability did not exclude Portsmouth’s liability.
2. Negligence. Portsmouth’s contractual duty to Hampshire County Council did not prevent it owing a duty of care to the claimant. The damage was foreseeable, there was sufficient proximity, and it was just and reasonable to impose liability.
3. Opportunity to abate. Whether a defendant had a reasonable opportunity to abate a nuisance is a question of fact. The defendant bears the burden of proving both that it lacked sufficient time and that, if sufficient time had been allowed, it would have abated the nuisance. Portsmouth had not asked for further time, requested consideration of tree management, or shown that it would have adopted that course. The approach in Delaware Mansions Ltd v Westminster City Council [2001] 1 WLR 1007 was applied. The trial judge’s finding was not one with which the appellate court should interfere.
4. Underpinning and mitigation. Although effective tree management could have prevented further damage, no assurance of such management had been given. The claimant was therefore entitled to proceed with underpinning on the evidence available. The burden of proving unreasonable failure to mitigate rested on Portsmouth. The claimant’s remedial decision was not to be assessed with excessive exactness, applying the principle in Banco de Portugal v Waterlow & Sons [1932] AC 452 at 506. The judge was entitled to find that the underpinning costs were recoverable.

Appeal dismissed with costs, assessed at £18,000 plus VAT.

1. Court of Appeal (Civil Division) — In [2002] EWCA Civ 1723, the appeal was dismissed on the issues of defendant identity, opportunity to abate the nuisance, and necessity of underpinning.
2. High Court, Queen’s Bench Division, Technology and Construction Court — On 11 March 2002, His Honour Judge Havery QC held Portsmouth City Council liable in nuisance and negligence for subsidence damage. Damages were not determined.