07/01/2016
If you run a search through Google for ‘damage done by tree roots’, chances are you will be shocked at the photos you retrieve. Tree roots growing out of control can cause damage to a building’s foundations, crack driveways and destroy drains, all incidences which can cause major disruption to a manufacturing plant or factory.
For commercial operators, this type of damage can cause significant loss of profits due to lost productivity time, and insurers can face costly bills when corporations make claims to cover damages received.
Liability for tree root damage is determined by the answers to the following questions:
-
What is the duty between neighbours with regard to trees?
-
Did the roots of the tree cause damage to a neighbouring property?
-
Was that harm reasonably foreseeable?
-
Were there any practicable measures that could have been taken to minimise or avoid the damage?
-
Was there a reasonable response to the damage?
The Duty Between Neighbours
If an act that is otherwise within the law causes encroachment, physical damage or interferes with a neighbours enjoyment and use of their land, then that act becomes an unlawful private nuisance.
Public bodies also owe a duty to their ‘neighbours’. In LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723, the Hampshire County Council owned the land upon which the offending trees stood. However, the Defendants, Portsmouth CC, maintained it under an agency agreement that included the routine maintenance of the trees. They failed to maintain the trees, which led to soil desiccation, which led to damage to a neighbouring property. The Court held that even though the Defendants did not own the land on which the trees stood, they had a sufficient degree of control over the hazard causing the nuisance and were therefore liable for the damage.
Did the Tree Roots Cause the Damage?
In the laws of tort, causation has always been a tricky area. The starting point in the case of tree roots is that the tree root must have materially contributed to the damage by being an ‘effective and substantial’ cause of it.
If there are a number of contributory factors to the damage, the Court will apportion responsibility.
Failure to take any action can also result in liability, as was the case in Robbins v London Borough of Bexley [2013] EWCA 1233. Because the London Borough of Bexley (the Appellants) failed to take action for damage caused to the claimant’s property for over eight years, the Court of Appeal found them liable as they had a duty to take some reasonable steps to avoid the damage occurring and/or spreading.
Was the Harm Caused by the Tree Roots Reasonably Foreseeable?
For a duty of care to arise from an incident caused by natural occurrences, rather than human intervention (or inaction), the Defendant should have reasonably been able to foresee that a risk of damage existed.
The tree owner should assess the degree of likely risk by reference to matters such as:
-
Known geological conditions regarding the composition of the subsoil
-
The age of the property, which brings with it a reasonable expectation that modern buildings built in apparent compliance with NHBC requirements will have taken into account obvious hazards such as nearby trees, or
-
Any prior incidents of tree root damage in the neighbourhood
The key case regarding foreseeability is the Court of Appeal decision in Berent v Family Mosaic Housing and London Borough of Islington [2012] EWCA Civ 961. Prior to this decision, the Courts seemed to be moving in the direction of imposing a strict liability for tree root damage, especially on local authorities. However, in Berent, the Appeal Judges held that there had to be a ‘real risk’ that the relevant trees were causing damage, not just a theoretical risk.
Were Practical Steps Taken to Minimise the Damage?
When considering this question, the Courts will look at:
-
Was it practical to prevent, or minimise, any damage?
-
If it was, how simple or difficult were the measures which could have been taken?
-
How much and how lengthy would the work involved be, and what would it have cost?
-
Was there sufficient time for preventive action to have been taken after the tree owner knew or ought to have known of the risk and before the damage occurred?
If there are no practicable measures that could have been taken, or if there was insufficient time to take them before the damage occurred, it may be acceptable for the tree owner to have done nothing at all.
With regards to pruning, in Robbins v London Borough of Bexley the trial judge referred to a report published by the Building Research Establishment Horticulture LINK project 212 entitled ‘Controlling water use of trees to alleviate subsidence risk’. The Judge noted that prior to the study it was widely accepted that any significant pruning of trees (the usual pruning would be 25% of branch length) would reduce the moisture taken up by the roots, with the result that a regular cycle of pruning could reduce the risk of subsidence. However, the study showed that such a general assumption was not well founded; unless the extent of the pruning was very severe, the effects would not be significant, and might well not last for more than two seasons in any event.
The Property Owner’s Response to the Damage Caused
If wayward tree roots have caused damage to a factory or commercial building, the Court will take into account the property and/or business owner’s response. For example, it would be expected that the business owner would notify the owner of the property where the trees are located of the damage caused, and give them an opportunity to rectify the harm done.
Remedies Available to the Claimant
If successful, the claimant is entitled to have the nuisance abated, ie tree roots removed. They can also seek relief through an injunction and/or damages.
The measure of damages will generally be the reasonable cost of remedial work that is reasonably required or has reasonably been spent:
-
To stabilise the foundations of the property, and
-
To get the property back to the state of repair that it was in before the damage occurred
If a business is forced to relocate whilst repairs are being carried out, they may be able to recover damages to compensate for the losses incurred.
In Summary
The Courts seem to take a practical approach when it comes to assessing whether or not there is a claim following tree root damage. For example, in Berent, the Court of Appeal acknowledged that tree owners could not be expected to fell every tree on their land simply because there lurked a suspicion that they roots may have caused damage to a neighbouring property. However, if tree roots have caused your building, land or business to be damaged, or you are an insurer and wish to recover some of your losses after a clam, then there are remedies available through the Courts.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you would like to discuss any points raised in this article, please phone us on 0207 993 6960.