Nuisance – Negligence – Tree roots – Claimants seeking damages for subsidence allegedly caused to property by rots of trees on public highway – Whether tree roots causing damage – Whether defendant local authority breaching duty of care – Whether defendants failing to put in place proper pruning regime – Claim dismissed
The claimants were the owners and occupiers of a house and land in Hampshire. The property was a two-storey detached house with a double garage at the left-hand side constructed in 2000. The defendant local authority controlled beech trees on the public highway in close proximity to the property. The trees had been removed but the claimants contended that the tree roots had caused structural damage to their property which had been caused by the nuisance and/or negligence of the defendants in allowing the roots of the trees to undermine the foundations.
The damage to the property consisted of internal and external cracking to the lounge, internal cracking to the study, internal cracking to the first floor and landing and internal cracking to the third bedroom which the claimants had first noticed in 2006. A joint single expert appointed by the parties accepted that there were two possible causes of the damage to the claimants’ property, heave and the beech trees. He concluded that, based on the balance of probabilities, the damage had been caused by the effects of beech trees growing in the public open space at the right-hand side of the building during abnormally hot and dry conditions.
Held: The claim was dismissed.
Cases involving tree root damage were subject to the same rules of law as a claim brought in common law negligence or nuisance. There was a need to strike a balance which might lead to the conclusion that, even though injury was foreseeable, it was still in all the circumstances, reasonable to do nothing about it: Robbins v Bexley London Borough Council [2012] EWHC 2257 (TCC), [2012] PLSCS 183 considered.
In each case, one had to consider the questions of: (i) causation; (ii) the extent of any risk of damage and the chances that anything untoward would happen; (iii) what was to be foreseen as the possible extent of the damage if the risk became a reality; (iv) whether it was practical to prevent, or to minimise, any damage; (v) if it was practicable, how simple or difficult were the measures which could be taken; (vi) how much work was involved and how long it would take and the costs involved; and (vii) whether there was sufficient time for preventative action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been reasoned by, the defendants and when the damage occurred: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 and Berent v Family Mosaic Housing [2012] EWCA Civ 961, [2012] PLSCS 167 applied. Solloway v Hampshire County Council [1981] 1 EGLR 129, [1981] 258 EG 558 considered.
In the present case, on the evidence before the court, the claimants had failed to show the requisite standard of proof that the damage to their property had been caused by the beech trees or their roots. The joint expert’s report was, at best, equivocal and it seemed that the damage had been caused by heave. In any event, the evidence indicated that the possibility of tree-related subsidence was very low and, since there was little or no evidence as to what preventative measures could or should have been taken, the court had been unable to make any findings as to whether a failure to put in place a proper pruning regime would have amounted to a breach of duty.
Daniel Crowley (instructed by Lyons Davidson) appeared for the claimants; Muhammed Haque (instructed by Clyde & Co LLP) appeared for the defendants.
Eileen O’Grady, barrister