Debra Wilson, Partner
Email Debra
As Autumn beckons, John Keats’ words (To Autumn, 1820) “Seasons of mists and mellow fruitfulness …” are lovely to contemplate, except perhaps where this involves neglected, urban trees.
There are 150 million urban trees in Britain including some 400,000 street trees in London. Large parts of the South East of London are built on shrinkable clay. In periods of low rainfall and high demand for water from tree roots, these soils can affect the buildings on which clay soil lies.
The growing concern of encroachment by boughs and roots over land of an adjoining occupier is a nuisance. An action can be found in nuisance and/or negligence. Damage caused by such encroachment can be an expensive problem.
In the case of Delaware Mansions v Westminster City Council (2001) 3WLR 1007 the Court of Appeal awarded damages of £835,000 to the freeholders who had claimed damages from City of Westminster as the Highway Authority responsible for a tree on the pavement of the street outside the block. The roots of the large plain tree had caused structural cracking and other disrepair to the mansion flats. The question in that case arose as to whether the Local Authority had been given sufficient notice to prevent further damage. The issue was over whether the claimant had acted reasonably in carrying out expensive underpinning works without allegedly giving notice of the damage to Westminster Council so that they had an opportunity of avoiding further damage by removal of the tree.
In Delaware, the court found as a general proposition that a defendant is entitled to a reasonable opportunity to take measures to stop a nuisance, before liability for remedial expenditure attaches. In the circumstances of that case, it was found that Westminster had ample notice and time to take action before the underpinning costs were incurred. Westminster was therefore found liable for the full costs of subsequent remedial work.
In 2009, tree root subsidence cost insurers £175 million. Tree root subsidence is a particular problem for local authorities. A public risk management association recently collected data from 16 authorities in the South East. There were 5,000 tree related incidents in the last 7 years costing over £37 million. A sobering thought to consider whilst enjoying the lovely red and rustic colours from the trees this Autumn.
If you have a problem relating to subsidence to your premises which you believe is due to the fault of another, it is important to first report it under any building insurance that you have. Where there is no insurance, or the cover is not validated, it is important to seek legal advice.
Debra Wilson is a Partner in the Property Dispute Resolution department at Anthony Gold. She regularly undertakes claims involving tree roots and other causes of subsidence. For further information email Debra Wilson or call 020 7940 4000.
