High Court confirms relevant test when determining liability for tree root damage

Khan v LBC: High Court confirms the relevant test when determining a tree owner's liability for tree root damage

In my previous article "Rooting for Trouble" (October 2012), I discussed the issue encroaching tree roots and the claims that arise as a result of damage caused by the roots

The recent case of Khan & Harrow Council & Another [2013] (Ramsey J handed down his judgment on 3 September 2013), which concerned damage caused to a property by tree roots, considered when a person will be liable for damage caused by roots from trees on their land.

Background

Mr and Mrs Khan owned a property in Stanmore, Middlesex. Mrs Kane owned a neighbouring property, within the grounds of which were a number of trees.

Both properties were built in the 1950s or 1960s. In or around 1982, a predecessor of Mr and Mrs Khan built an extension onto the property near the boundary of what is now Mrs Kane's property. Mrs Kane and her late husband bought their property in April 1982.

In November 2000, a survey was carried out for Mr and Mrs Khan as part of their pre-purchase investigations. It highlighted that there were mature shrubs and trees were present and advised that they insure against various factors, including subsidence.

Having purchased the property in July 2001, in September 2006 Mr and Mrs Khan noticed cracks to the front of their property. The Khans contacted their insurers and loss adjusters appointed.. The loss adjusters advised further monitoring and investigation should be carried out and subsequently a firm of structural engineers and a firm of aboricultural consultants were appointed.

Shortly afterwards, a Cypress hedge in Mrs Kane's property was identified as being of a species of tree that had the potential to be responsible for the damage. It was recommended that a section of the hedge be removed so as to provide a clearance of least 5m from Mr and Mrs Khan's property and the Cypress hedge. It was recommended that Oak trees to the front of Mr and Mrs Khan's property and Mrs Kane's properties were not permitted to increase in size.

In June 2009, Mr and Mrs Khan's aboricultural expert produced a report stating that the Cypress trees were most likely to be the material cause of damage to part of the property, adding that it was necessary to remove all Cypress trees within 5m of the right side of the building. The Cypress trees adjacent to the right hand wall of Mr and Mrs Khan's property were removed in July 2009.

After the Cypress trees were removed, an addendum to the report was produced after further site inspections recorded new damage to the property, particularly to the right side. Within the addendum report the aboricultural expert stated that one or both of the Oak trees near Mr and Mrs Khan's property and Mrs Kane's property were the material cause of the damage, adding that as they were of similar age and size, it was likely that they were jointly responsible for the damage. The Oak trees were subsequently felled.

The claim

Proceedings were issued against London Borough of Harrow in March 2011 (that claim was subsequently settled and shall not be discussed further here) and the claim amended in November 2011 to include a claim against Mrs Kane in relation to the damage to the right side of Mr and Mrs Khan's property caused by the Cypress hedge and the Oak tree on her land.

Mr and Mrs Khan claimed that the risk of the damage to their property by subsidence caused by the trees "was or ought to have been reasonably foreseeable" to Mrs Kane. Mrs Kane admitted that the subsidence damage to the right hand side of Mr and Mrs Khan's property was caused, either entirely or in part by the Cypress hedge and/or contributed to by the Oak on her property and the Oak on Mr and Mrs Khan's property. She denied that the damage caused was reasonably foreseeable.

The Judgment

The Court accepted Mrs Kane's assertions that she did not know about the risk of damage from tree roots but held that in the context of damage caused by tree roots, liability could not be avoided by lack of actual knowledge on the part of the tree owner as to the damage that their trees could cause. Instead, Ramsey J held that the question that needed to be considered was whether the risk of damage to Mr and Mrs Khan's property caused by the Cypress trees and the Oak tree would have been foreseeable to a reasonable person in Mrs Kane's position, adding

"what has to be considered is the position of reasonably prudent landowners who have trees on their properties"

That Mrs Kane did not know about the risk of damage being caused by roots from trees in her land was, therefore, irrelevant

Ramsey J, highlighting that the Cypress trees were not only in close proximity to Mr and Mrs Khan's property but entirely dominated the right side of the property, held that a reasonably prudent landowner would have been on notice that of the subsidence risk that the trees posed to Mr and Mrs Khan's property. He did not, however, reach the same conclusion regarding the Oak tree on Mrs Kane's land, concluding instead that the tree's height and position were not such that would lead a reasonably prudent landowner would have appreciated that there was a risk of subsidence damage.

Having concluded that the damage caused by the Cypress trees was foreseeable, Ramsey J, held that Mrs Kane was under a duty to take steps to eliminate that risk. As Mrs Kane had failed to remove the Cypress hedge - the Court heard that the Cypress hedge was not an attractive feature and the cost of removing it was in the region of £700-£800 - Ramsey J held that she was liable in nuisance for the damage caused by her failure to eliminate the risk of damage.

In addition to confirming the test to be adopted in claims concerning tree root damage, the case is also a telling reminder that the Court expects parties, where possible, to take steps to raise and address any problems between them and will take a dim view where they do not do so.

Mr and Mrs Khan and Mrs Kane engaged in no correspondence regarding the trees and in particular the damage caused by the tree roots from Mrs Kane's trees. Ramsey J considered that it would have been reasonable for Mr and Mrs Khan to have notified Mrs Kane of the risk of damage and the actual damage caused to their property. In light of them having not done so, Ramsey J held that Mr and Mrs Khan must share some responsibility for the damage caused to their property. Having reached that conclusion, he held that an apportionment of 15% was appropriate to reflect their responsibility for the overall damage caused to their property as a result of that failure i.e the damages to be paid to them by Mrs Kane were reduced by 15% by virtue of their the contributory negligence.

This case should be seen as a cautionary reminder to landowners that ignorance is no excuse; landowners should keep a close eye on any established trees within their boundaries, particularly those in the vicinity of neighbour's properties, as a failure to properly manage and maintain tree and shrubs could lead to a costly dispute.

Rollits Property Dispute Resolution Group specialises in property disputes, including boundary disputes, right of way disputes and trespass and nuisance claims involving private individuals, body corporates and government departments. If you have any queries arising from this article, contact Chris Drinkall directly on 01482 337367. Alternatively, if you have a property related grievance with a third party, contact Ralph Gilbert, Partner and Head of Rollits' Property Dispute Resolution Group on 01482 323239

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.