Negligence – Tree roots – Damages – Claimant seeking damages against defendant council for cost of underpinning and repair of property – Whether damage resulting from extraction of moisture by defendants’ trees – Whether damage being reasonably foreseeable – Whether defendants negligently failing to prevent damage – Claim allowed The claimant owned and occupied a semi-detached house which backed onto a park owned by the defendant council. A line of hybrid black poplar trees had been planted along the boundary of the park running parallel with the end of the claimant’s rear garden. The poplars had been planted some time between about 1935 and 1945 and were therefore mature trees. The claimant’s house had been built in about 1935 and the claimant acquired it in 1969. Between 1996 and 1998, owners of other properties in the row had made claims against the defendants in relation to root damage and poplar tree roots had been found close to their properties. In September 2003, the claimant first noticed damage to the rear of her property when cracks appeared in the walls. In April 2006, the claimant removed a magnolia tree that was about two metres away from the back of her property but further significant damage occurred in the summer of 2006 when some of the original cracks became wider. In September 2006, some of the poplars, including that nearest to the claimant’s property, were severely pruned by the defendants. In the summer of 2007, the movement of the rear extension of the property was very much reduced which the claimant argued was the result of the pruning. The claimant subsequently commenced proceedings for damages against the defendants on the ground that they had been negligent in failing to take steps to prevent damages occurring as a result of the presence of their trees. All the experts, both engineering and arboricultural, agreed that the cracking and movement to the rear of the claimant’s property was the result of seasonal volume changes in the subsoil caused by extraction of moisture by vegetation. However, questions arose as to which vegetation had caused the damage; and whether the defendants had failed negligently to take steps to prevent the damage. Held: The claim was allowed. On the facts, from early 1998 the defendants had been on notice that roots from the trees in their park had been found close to neighbouring houses which had allegedly caused damage to those properties. Accordingly, it had been reasonably foreseeable by the defendants that any house in the claimant’s road was at a real risk from subsidence caused by the roots of one or more of the poplars extracting moisture from the clay soil below the foundations. In all the circumstances, the tree nearest the claimant’s property had been the major contributor to the removal of moisture from the clay beneath the foundations of the claimant’s property during the summer of 2006. Until at least mid 2005, the defendants could reasonably have been expected to respond to their awareness of the foreseeable risk of damage being caused by the poplars by embarking on a programme of crown reduction of the trees and that should have been done from early 1998 onwards. Since, on the evidence, the defendants had recognised the need for crown reduction work to the poplars in 2004, and again in 2005, and had placed orders for it to be done, they should have ensured that it was carried out. Had it been done at any time before the summer of 2006, the damage that occurred then would never have happened. In the light of what they knew, and should have foreseen, the failure of the defendants to ensure that the crown reduction work it considered necessary in 2004 and early 2005 was carried out reasonably promptly was negligent. If that work had been carried out, it would probably have prevented the significant further damage that was caused to the claimant’s property during 2006. There were no special principles of law relating to tree root cases which were subject to the general law of negligence and nuisance. This was a case where the onus was on the defendants, having been found in breach of duty, to show that even if they had acted with reasonable care the damage would probably still have occurred. In those circumstances, it was not necessary for the claimant to prove positively the negative proposition that the damage would not have occurred if the defendants had embarked upon a programme of crown reduction of the trees earlier. Since the defendants had advanced no evidence as to what they would have done, they were necessarily unable to show that the damage would have occurred in any event: Phethean-Hubble v Coles [2012] EWCA Civ 349 applied; Berent v Family Mosaic Housing [2012] EWCA Civ 961, [2012] PLSCS 167 considered. It was a reasonable inference that, if the defendants had decided to implement a policy of cyclical pruning of the poplars in 1998, as they should have done, they would probably have carried out a crown reduction to each tree every fourth year. Such a policy, if adopted, could not have been criticised having regard to the prevailing knowledge at the time and would probably have prevented the damage that occurred in 2003. Therefore, the defendants were liable for the damage caused by the subsidence that occurred in both 2003 and 2006 in the agreed amount. Daniel Crowley (instructed by Plexus Law) appeared for the claimant; Muhammed Haque (instructed by Clyde & Co LLP) appeared for the defendants. Eileen O’Grady, barrister
Negligence – Tree roots – Damages – Claimant seeking damages against defendant council for cost of underpinning and repair of property – Whether damage resulting from extraction of moisture by defendants’ trees – Whether damage being reasonably foreseeable – Whether defendants negligently failing to prevent damage – Claim allowed
The claimant owned and occupied a semi-detached house which backed onto a park owned by the defendant council. A line of hybrid black poplar trees had been planted along the boundary of the park running parallel with the end of the claimant’s rear garden. The poplars had been planted some time between about 1935 and 1945 and were therefore mature trees. The claimant’s house had been built in about 1935 and the claimant acquired it in 1969. Between 1996 and 1998, owners of other properties in the row had made claims against the defendants in relation to root damage and poplar tree roots had been found close to their properties.
In September 2003, the claimant first noticed damage to the rear of her property when cracks appeared in the walls. In April 2006, the claimant removed a magnolia tree that was about two metres away from the back of her property but further significant damage occurred in the summer of 2006 when some of the original cracks became wider. In September 2006, some of the poplars, including that nearest to the claimant’s property, were severely pruned by the defendants. In the summer of 2007, the movement of the rear extension of the property was very much reduced which the claimant argued was the result of the pruning.
The claimant subsequently commenced proceedings for damages against the defendants on the ground that they had been negligent in failing to take steps to prevent damages occurring as a result of the presence of their trees.
All the experts, both engineering and arboricultural, agreed that the cracking and movement to the rear of the claimant’s property was the result of seasonal volume changes in the subsoil caused by extraction of moisture by vegetation. However, questions arose as to which vegetation had caused the damage; and whether the defendants had failed negligently to take steps to prevent the damage.
Held: The claim was allowed.
On the facts, from early 1998 the defendants had been on notice that roots from the trees in their park had been found close to neighbouring houses which had allegedly caused damage to those properties. Accordingly, it had been reasonably foreseeable by the defendants that any house in the claimant’s road was at a real risk from subsidence caused by the roots of one or more of the poplars extracting moisture from the clay soil below the foundations.
In all the circumstances, the tree nearest the claimant’s property had been the major contributor to the removal of moisture from the clay beneath the foundations of the claimant’s property during the summer of 2006. Until at least mid 2005, the defendants could reasonably have been expected to respond to their awareness of the foreseeable risk of damage being caused by the poplars by embarking on a programme of crown reduction of the trees and that should have been done from early 1998 onwards.
Since, on the evidence, the defendants had recognised the need for crown reduction work to the poplars in 2004, and again in 2005, and had placed orders for it to be done, they should have ensured that it was carried out. Had it been done at any time before the summer of 2006, the damage that occurred then would never have happened. In the light of what they knew, and should have foreseen, the failure of the defendants to ensure that the crown reduction work it considered necessary in 2004 and early 2005 was carried out reasonably promptly was negligent. If that work had been carried out, it would probably have prevented the significant further damage that was caused to the claimant’s property during 2006.
There were no special principles of law relating to tree root cases which were subject to the general law of negligence and nuisance. This was a case where the onus was on the defendants, having been found in breach of duty, to show that even if they had acted with reasonable care the damage would probably still have occurred. In those circumstances, it was not necessary for the claimant to prove positively the negative proposition that the damage would not have occurred if the defendants had embarked upon a programme of crown reduction of the trees earlier. Since the defendants had advanced no evidence as to what they would have done, they were necessarily unable to show that the damage would have occurred in any event: Phethean-Hubble v Coles [2012] EWCA Civ 349 applied; Berent v Family Mosaic Housing [2012] EWCA Civ 961, [2012] PLSCS 167 considered.
It was a reasonable inference that, if the defendants had decided to implement a policy of cyclical pruning of the poplars in 1998, as they should have done, they would probably have carried out a crown reduction to each tree every fourth year. Such a policy, if adopted, could not have been criticised having regard to the prevailing knowledge at the time and would probably have prevented the damage that occurred in 2003. Therefore, the defendants were liable for the damage caused by the subsidence that occurred in both 2003 and 2006 in the agreed amount.
Daniel Crowley (instructed by Plexus Law) appeared for the claimant; Muhammed Haque (instructed by Clyde & Co LLP) appeared for the defendants.
Eileen O’Grady, barrister
