10 April, 2012
Forbes represented Salford City Council in a trial on preliminary issues in the Technology and Construction Court at Manchester County Court for a claim for tree-root subsidence damage. The claim was issued against Salford City Council as the registered freehold owner of the land on which the offending trees stand and/or against the Second Defendant, the registered leasehold owner of the same land.
The Claimant's property was next door to the land, and suffered damage at the foundation level. The trees were situated at the back of a car park to a pub, owned by the Council, but which land had been leased in 1984 to the Second Defendant by way of a 99 year lease.
The issue for the Court to decide was which Defendant had sufficient control over the trees to be potentially liable in nuisance.
It was held that the relevant law was laid down in the judgment of Dyson LJ in LE Jones v Portsmouth City Council  EWCA Civ 1723, paras 10 and 11:
"Speaking generally, the occupier of premises is liable for all nuisances which exist upon them during the period of his occupancy.
"In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance.
"Similarly, control lies at the heart of the liability of a non-occupying owner for liability when the nuisance is attributable to a breach by him of the covenants of a lease, or a failure to exercise his right to enter and carry out repairs."
The judge accepted the following submissions on behalf of the Council.
(i) Prior to the 1984 lease, the Council had full control in law over the trees. But this claim related not to pre-lease events, and so this was irrelevant.
(ii) If at the time of the lease the trees were causing damage, the Council could be liable - but damage was not caused until 2005.
(iii) In demising land by lease, an owner of land transfers his right of exclusive possession - including corporeal hereditaments, such as trees. Therefore, the lease allows the owner to cede all control to the tenant.
(iv) There was no evidence that the Council retained or exercised any control over the land and trees since the lease was entered into.
(v) There was nothing in the lease - express or implied - that led to the conclusion that the Council had retained sufficient control to be liable in nuisance
(vi) And in any event, that the indemnity clause in the lease provided that the Council would be fully indemnified against this, and any other claims.
On this final point, the judge rejected the Second Defendant's argument that an absence of express obligations on the tenant to undertake works on the trees, along with the fact there were specific obligations elsewhere in the lease - such as the right to enter to inspect and for all other reasonable purposes - meant that it was the parties' intention for the Council to retain control over the trees.
It was held that while there were positive obligations contained within the lease, it did not follow that the Second Defendant had no obligations regarding the trees. To hold otherwise would be inconsistent with the fundamental notion that the Council demised the whole land - that is, exclusive possession of the land, for the duration of the lease.
Further still, the clause that stated that the Council could enter the land for "all other reasonable purposes" did not, in the context of a 99 year lease, include entering to repair any trees.
As such, the Council had no control or maintenance of the trees and therefore no liability to the Claimant in nuisance.
The Court further ruled that, even if the Council did have control over the trees, it was entitled to an indemnity from the Second Defendant pursuant to the indemnity clause appearing within the lease. It was held that the lease was clearly drafted to cover such a claim as this.
The case demonstrates the importance of beginning at the start. The 'back to basics' approach, which focused on the fundamental purpose of a lease, provided the Court with a logical starting point for assessing control of the land in a dispute which could have become embroiled in convoluted issues of clause construction.
That the judgment also focused on the indemnity issue highlights the importance of approaching a claim with a multi-faceted Defence, in order to cover all contingencies.