LE Jones (Insurance Brokers) Ltd v Portsmouth City Council
Court of Appeal
Citations:  EWCA Civ 1723;  1 WLR 427;  BLR 67; 87 Con LR 169;  1 EGLR 99;  15 EG 139.
The roots of trees on the street near the claimant’s home had grown out and damaged their property. Hampshire County Council had highway authority over these trees. However, they had contracted the defendant to look after the trees in the area. The defendant failed to properly manage the growth of the trees.
The claimant sued the defendant in nuisance and negligence. The defendant argued that they were not the correct person to sue: the claimant should have sued Hampshire County Council instead.
- Did the defendant occupy the street with the trees on it for the purposes of nuisance?
- Did the defendant’s contractual duties to Hampshire County Council preclude it from owing anyone else a duty in negligence?
The Court of Appeal held in favour of the claimant. The defendant had sufficient control over the trees, and so was an occupier. The fact that this control was derived from a contract was irrelevant. The contract did not prevent the defendant from owing the claimant a duty in negligence to avoid causing property damage.
This Case is Authority For…
In nuisance, the claimant can establish that the defendant is an occupier by showing that they have sufficient legal or factual control over the land. If the defendant has factual control, there is no need for them to have any property interest in the land. The legal basis for the defendant’s control is not relevant.
Dyson LJ argued that the basis for nuisance is identifying the person with sufficient control over the relevant land, such that they could have taken the measures necessary to prevent or eliminate the nuisance. This might be the landowner, or it might be a third-party looking after the land. There might also be multiple people with sufficient control, and so multiple occupiers.
This case demonstrates that encroachment by plant roots is an actionable form of nuisance.