The law on liability for tree root damage was set out by the HL in Delaware
Mansions [2001]. That case involved substantial underpinning work for a
block of flats, with the damage being caused by a plane tree which had been
planted at about the same time as the block of flats had been built.
It was
held that the LA (which was responsible for the plane tree) was liable, even
though it was only given notice by the owners of the block relatively late in
the day. In general terms, however, that case clearly established the wide
liability of an LA for tree root damage arising from pavement trees.
But, the area of uncertainty that emerges relates to the amount of notice that
has to be given to the LA (or tree owner). On the one hand, Lord Cooke said:
‘It cannot be right to visit the LA or owner responsible for a tree with a large bill for
underpinning without giving them notice of the damage and the opportunity of
avoiding further damage by removal of the tree… As a general proposition, I think
that the defendant is entitled to notice and a reasonable opportunity of abatement
before liability for remedial expenditure can arise.’
However, how does that square with the following words by Lord Cooke, later
in the same judgment:
‘In my opinion, the law can be summed up in the proposition that, where there is a
continuing nuisance of which the defendant knew or ought to have known, reasonable
remedial expenditure may be recovered by the owner who has had to incur it.’
The point here is that the second quote says that, if there is a continuing
nuisance that the defendant should have known about, then costs of
remedial expenditure will be recoverable (ie even if he was not given notice
of the damage, as would seem to be required by the first quote of Lord
Cooke). How are the two to be reconciled?
An indication of how the courts will approach this issue can be gathered from
a recent case which involved two adjoining terraced properties in North
London, both of which suffered from subsidence caused by pavement trees.
Both were eventually underpinned, but the works were carried out separately
and at different times. The works to house A were carried out first, with the
insurers having written to the LA claiming damages; for its part, the LA
acknowledged that the tree roots might have contributed to the damage to
house A. But, the owners (or insurers) of house B did not make any such
notification to the council before they carried out works to house B. In fact,
no notice was given to the LA until four years later. At that stage, the LA
asked for the claim to be struck out because there had been no prior notice.
The county court judge agreed, but that decision was reversed by the CA. In
its view, one had to focus upon the second element of Lord Cooke’s
judgment and, in this case, the LA must have known of the risk of damage
to house B because they had at the same time written to house A (next door)
acknowledging that tree root damage may have caused the subsidence.
Accordingly, a claimant in a tree root claim needs only to show that the
defendant knew – or should have known – that there was a reasonably
foreseeable risk of tree roots causing damage. If that is the case, then prior
notice is not required. Accordingly, the claim in respect of house B, which
had been struck out by the county court judge, was reinstated. Note that this
was not a final judgment in favour of house B, but merely an indication that
the notice argument raised by the LA was unlikely to succeed. In practice,
however, it shows a clear willingness to dispense with notice in many cases.
As such it is not a decision which will be welcomed by LAs. See note on Kirk
v LB of Brent [2005] EWCA Civ 1701 in [2006] LSG 30 March 27.
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