TREE ROOTS AND NUISANCE

L E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA 1723 (7 November 2002)

In L E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA 1723 (7 November 2002) the Court of Appeal dismissed an appeal from the decision of Judge Richard Havery QC [2002] BLR 244 (on which see our June 2002 issue, pp.5–7) in which he held the defendant local authority liable in negligence and nuisance for damage caused by the encroachment of tree roots which resulted in subsidence and consequential damage to the claimant’s property. The Court of Appeal held that the basis of the liability of an occupier in nuisance lies not in his occupation as such but in the fact that he has it in his power to take the measures that are necessary in order to prevent or eliminate the nuisance. The defendant in the present case had this power and so was in principle liable both in nuisance and negligence. Further, the Court of Appeal rejected the submission that the defendant had not been given a reasonable opportunity to abate the nuisance and they also rejected the submission that the underpinning works were not necessary on the facts.