Court Success: Tree root subsidence claims and the importance of evidence

  • A claim was made for damage to a property caused by the roots of trees for which the council was responsible
  • The discontinued claim provides a helpful reminder of the key evidential issues in tree root subsidence claims
  • Owners of trees can and should maintain a robust defence if a claimant cannot produce sufficient evidence

Background

This was a claim for damage to a property caused by the roots of trees for which the council was responsible. The property was constructed in about 1981, and it comprised a two storey detached house with attached single storey garage.
The council owned and/or was responsible for three trees of varying heights located at the right hand side of the property along a cycle/ footpath. It did not have a system in place for carrying out regular inspections of its trees which were thought to number in the region of 70,000.

The claimants said that they noticed damage to the property in October 2009 and notified their building insurers. There had been earlier damage in 2001, 2005 and 2007. Some repairs had been undertaken in 2002. The claims of 2005 and 2007, were repudiated, as the damage was considered to be due to consolidation and thermal influences.
The claimants first notified the council of alleged tree-related damage by a letter dated 12 July 2010. The council removed the trees in January 2011 prior to commencement of the growing season. An arboriculturist instructed on behalf of the claimants noted that the removal of two trees, referred to as T1 and T2, had been a successful solution to the subsidence damage. He said that the council had “been more than accommodating in this claim and they also removed the significant vegetation within G1 (Future Risk vegetation.)”

The council admitted that the property had suffered damage, but denied liability on the following grounds:

  • Any damage which occurred before 29 April 2009 was statute-barred.
  • The damage was not foreseeable. Investigations carried out on behalf of the claimant in September 2007 had not identified the trees as a risk.
  • It could reasonably assume that the foundations of the property built in 1981 had been designed to take account of the proximity of the trees and other vegetation.
  • It acted reasonably in removing two of the trees and substantially reducing the third (without admission of liability) in January 2011.

In relation to foreseeability the council applied the authorities of Berent v Family Mosaic Housing and Islington [2012] EWCA Civ 961; Robbins v Bexley London Borough Council [2012] EWHC 2257 (TCC) and [2012] LLR 97 and Khan v Harrow Council [2013] EWHC 2687 in maintaining that it could not have reasonably foreseen a real risk of damage to the property. The following points were relied on in support of this position:

  • Prior to damage occurring, the council would have known of the potential for trees to cause damage to nearby buildings on clay soils, there is no reliable methodology for predicting precisely which trees would cause damage to buildings.
  • In view of the opinion of the claimants’ arboricultural expert that pruning was not the solution, and in fact would have served to stimulate growth, the removal of the trees would have been the only reliable way of removing the risk of damage. The council maintained that, as a responsible local authority mindful of its obligation under the Town and Country Planning Acts to preserve an established treed environment, it could not reasonably contemplate the desertification of the neighborhood by wholesale tree felling to avoid a possible risk of damage.
  • A local authority has to allocate resources and take a proportionate approach to managing risks.
  • The council was cooperative throughout and there was no evidence that it was in possession of information which made a possible risk of damage a real risk that the trees had caused or would cause damage to the property.
  • It was reasonable for the council to assume that the foundations of the property had been designed to take account of the proximity of the trees and other vegetation.
  • Once the claimants had notified the Council of alleged tree-related damage, the council acted swiftly, appropriately and effectively. There was no evidence that the period between notification and removal/pruning
    was unreasonable and/or that any specific damage was caused to the property in that period

Discontinuance

The claimants pursued the claim and only weeks before trial made an unsuccessful attempt to serve further expert evidence relating to foreseeability long after the parties’ experts had prepared their joint statements. The claimants discontinued the claim three days before the trial was due to start. They agreed to pay the defendant’s budgeted costs.

Comment

The outcome of this claim shows that the owners of trees can and should maintain a robust defence if a claimant cannot produce the evidence to prove that it was foreseeable that a tree or trees presented a real rather than a possible risk of causing subsidence damage.

This claim was handled by Helen Else & Joanne O’Donnell from our Birmingham Casualty Team. Our panel solicitors Weightmans represented Zurich & the Council throughout the litigation process.