Negligence – Causation – Tree roots – Respondent claiming for damage caused to property by poplar tree roots – Appellant local authority held to be negligent in failing to take steps to prevent damage – Whether causation established – Whether damage would have occurred even if appellants fulfilling duty – Appeal dismissed
The respondent owned a 1930s semi-detached house in a row of properties that backed onto a park owned by the appellant council. A line of mature polar trees ran along the boundary of the park, roughly parallel with the row at a distance of approximately 30m from the rear of the houses. In September 2003, the respondent noticed damage to the rear of her property. In July 2004, and again in early 2005, the appellants issued a works order requiring a 25% crown reduction in the poplars, but those works were not carried out. The respondent’s property suffered further damage in summer 2006. In September 2006, the appellants undertook a very severe crown reduction in the poplars, removing the whole dynamic canopy and all leaf-bearing shoots. The respondent’s property suffered much less damage the following summer.
The respondent claimed damages against the appellants for negligence in in failing to take steps to prevent the poplar trees from causing damage. Allowing that claim, the judge held that the appellants were liable in the agreed amount of £150,081 for the damage to the respondent’s property in 2003 and 2006. He found that: (i) by early 1998, it was foreseeable that the respondent’s property was at risk of subsidence caused by poplar roots; (ii) according to their own prevailing advice, the appellants should have carried out a programme of cyclical crown reduction every three to four years to remove 25% of the tree crown; (iii) a reduction of that size would not have had any significant influence on the moisture removal caused by the poplars; but (iv) had the appellants put that programme in place in 1998, as they should have done, they poplars would probably have received the very severe reduction that they had in fact received in 2006. He concluded that the damage would have been avoided had the appellants done the works they should have done: see [2012] EWHC 2257 (TCC); [2012] PLSCS 183.
The appellants appealed. They contended that, having found that the crowns of the trees should have been reduced by only 25% every three to four years from 1998, and also that such a reduction would have had no effect on soil desiccation, the judge should have concluded that the appellants’ breach of duty had not caused the damage. They submitted that the only relevant question was what the appellants should have done to comply with their duty and that the judge had erred in asking what they would in fact have done had they so complied.
Held: The appeal was dismissed.
It was common ground that the appellants’ duty, from 1998, was to take such steps as were reasonably required to prevent damage being caused by the roots of the poplars to the respondent’s property. The duty was not to undertake any specific programme of works. The judge had not found that the content of the duty was simply to undertake a particular 25% cyclical pruning regime or that the primary breach was the appellants’ failure to undertake such a regime. The programmes of works referred to by the judge, including cyclical pruning to 25% of branch length every three or four years, were simply various possible ways in which the appellants could have discharged their duty.
The breach of duty found by the judge was the appellants’ failure to take reasonable steps to put in place and carry out a programme of crown reduction in respect of the poplars from 1998 onwards. The judge’ had found that the damage to the respondent’s property, both in 2003 and 2006, was caused by the appellants’ failure to put in place any programme of cyclical pruning at all.
Having found that the appellants’ breach of duty consisted of doing nothing, it was necessary, on the facts, for the judge then to ask what would have happened had the appellants done something rather than nothing. The content of the appellants’ duty was to take some reasonable steps to avoid the damage. Such steps could hypothetically have included building a concrete wall to block the spread of the roots, or a cyclical pruning programme, or many other possibilities. The judge had therefore been justified on the facts, and on the proper application of the rules of causation, in asking what the appellants would in fact have done, had they taken reasonable steps to prevent the damage. The judge had correctly applied the causation test to the breaches of duty that he held to have been established: Bolitho v City and Hackney Health Authority [1998] AC 232 applied; Beary v Pall Mall Investments (a firm) [2005] EWCA Civ 415 distinguished.
Andrew Bartlett QC and Muhammed Haque (instructed by Clyde & Co LLP) appeared for the appellants; Stephen Furst QC and Daniel Crowley (instructed by Plexus Law) appeared for the respondent.
Sally Dobson, barrister
Negligence – Causation – Tree roots – Respondent claiming for damage caused to property by poplar tree roots – Appellant local authority held to be negligent in failing to take steps to prevent damage – Whether causation established – Whether damage would have occurred even if appellants fulfilling duty – Appeal dismissedThe respondent owned a 1930s semi-detached house in a row of properties that backed onto a park owned by the appellant council. A line of mature polar trees ran along the boundary of the park, roughly parallel with the row at a distance of approximately 30m from the rear of the houses. In September 2003, the respondent noticed damage to the rear of her property. In July 2004, and again in early 2005, the appellants issued a works order requiring a 25% crown reduction in the poplars, but those works were not carried out. The respondent’s property suffered further damage in summer 2006. In September 2006, the appellants undertook a very severe crown reduction in the poplars, removing the whole dynamic canopy and all leaf-bearing shoots. The respondent’s property suffered much less damage the following summer.The respondent claimed damages against the appellants for negligence in in failing to take steps to prevent the poplar trees from causing damage. Allowing that claim, the judge held that the appellants were liable in the agreed amount of £150,081 for the damage to the respondent’s property in 2003 and 2006. He found that: (i) by early 1998, it was foreseeable that the respondent’s property was at risk of subsidence caused by poplar roots; (ii) according to their own prevailing advice, the appellants should have carried out a programme of cyclical crown reduction every three to four years to remove 25% of the tree crown; (iii) a reduction of that size would not have had any significant influence on the moisture removal caused by the poplars; but (iv) had the appellants put that programme in place in 1998, as they should have done, they poplars would probably have received the very severe reduction that they had in fact received in 2006. He concluded that the damage would have been avoided had the appellants done the works they should have done: see [2012] EWHC 2257 (TCC); [2012] PLSCS 183.The appellants appealed. They contended that, having found that the crowns of the trees should have been reduced by only 25% every three to four years from 1998, and also that such a reduction would have had no effect on soil desiccation, the judge should have concluded that the appellants’ breach of duty had not caused the damage. They submitted that the only relevant question was what the appellants should have done to comply with their duty and that the judge had erred in asking what they would in fact have done had they so complied.Held: The appeal was dismissed.It was common ground that the appellants’ duty, from 1998, was to take such steps as were reasonably required to prevent damage being caused by the roots of the poplars to the respondent’s property. The duty was not to undertake any specific programme of works. The judge had not found that the content of the duty was simply to undertake a particular 25% cyclical pruning regime or that the primary breach was the appellants’ failure to undertake such a regime. The programmes of works referred to by the judge, including cyclical pruning to 25% of branch length every three or four years, were simply various possible ways in which the appellants could have discharged their duty.The breach of duty found by the judge was the appellants’ failure to take reasonable steps to put in place and carry out a programme of crown reduction in respect of the poplars from 1998 onwards. The judge’ had found that the damage to the respondent’s property, both in 2003 and 2006, was caused by the appellants’ failure to put in place any programme of cyclical pruning at all.Having found that the appellants’ breach of duty consisted of doing nothing, it was necessary, on the facts, for the judge then to ask what would have happened had the appellants done something rather than nothing. The content of the appellants’ duty was to take some reasonable steps to avoid the damage. Such steps could hypothetically have included building a concrete wall to block the spread of the roots, or a cyclical pruning programme, or many other possibilities. The judge had therefore been justified on the facts, and on the proper application of the rules of causation, in asking what the appellants would in fact have done, had they taken reasonable steps to prevent the damage. The judge had correctly applied the causation test to the breaches of duty that he held to have been established: Bolitho v City and Hackney Health Authority [1998] AC 232 applied; Beary v Pall Mall Investments (a firm) [2005] EWCA Civ 415 distinguished.Andrew Bartlett QC and Muhammed Haque (instructed by Clyde & Co LLP) appeared for the appellants; Stephen Furst QC and Daniel Crowley (instructed by Plexus Law) appeared for the respondent.Sally Dobson, barrister