Hurst & Another v Hampshire County Council [1997]

The claimants owned a semi-detached house, and on the grass verge of the highway outside the property was an oak tree which was between 170 and 190 years old. The tree was on the other house’s side of the verge.
The road was an ancient highway now vesting in the Council, and it was accepted that the tree was planted and grew after the highway had been dedicated to the public.
During a very dry summer the claimants’ house began to suffer serious structural damage. They asserted that this damage was caused by subsidence due to moisture extraction or dehydration of the clay soil by the roots of the tree. The Council said that the damage was caused by rehydration of the soil, resulting in heave rather than subsidence but at first instance the judge agreed with the claimants.

The judge found that the damage to the claimants’ house had been reasonably foreseeable to the Council, as oak trees notoriously have a high water demand and the tree and the house were situated on clay which is highly shrinkable. The proximity between the tree and the house was well within the danger area for a tree of that size and type. He held the Council liable in nuisance and negligence, on the grounds that they maintained the tree pursuant to the Highways Act 1980 s.96(1).

The Council appealed, contending that it should not have been found liable as s.96(1) created only a power to maintain the tree rather than a duty to do, and therefore failure to maintain it did not give rise to liability.
It was also argued that the tree was not the property of the council, but that of the claimants’ neighbour, who owned the subsoil.

HELD: The Court of Appeal dismissed the appeal, as the power to maintain trees under s.96(1) applies to trees planted after adoption or dedication to the Council. Although the duty to prevent a tree becoming a nuisance to the owner of premises adjacent to the land under s.96(6) did not apply to such trees, the Council could be liable in nuisance to an owner of adjoining property suffering damage to property or person, as long as the damage was reasonably foreseeable.
The property in the tree was decided to vest in the Council rather than in the owners of the subsoil.

Citation: Hurst & Another v Hampshire C. Council [1997] [1997] 2 E.G.L.R. 164