Judges Rule on Tree Roots Subsidence Compensation ClaimPrintPdfClose »

18/07/2012

A property owner (the appellant) whose Victorian townhouse was severely affected by subsidence has failed to convince the Court of Appeal that a local authority and a housing association (the respondents) should be held liable to compensate her for the damage.

Even if the damage had been partially caused by the roots of two large plane trees, as the appellant claimed, that could not reasonably have been foreseen by the respondents on whose land the trees stood, the court ruled. 

The property owner commissioned various repair works after noticing cracks in the bricks and walls of the property and issued proceedings against the respondents, alleging that the encroachment of the tree roots onto her land amounted to an actionable nuisance.

At first instance, Judge David Wilcox ruled that, on the assumption that the roots had caused part of the subsidence damage, the respondents could not have been expected to foresee that there was a 'real risk' that they would undermine the property's foundations. 

However, the judge ruled that the trees should have been removed more promptly and awarded the appellant £5,000 damages for the ‘distress, inconvenience and loss of amenity’ caused by the delay of about nine months in felling them. 

The appellant argued before the Court of Appeal that the judge had been wrong to find that the damage allegedly caused by the tree roots was not reasonably foreseeable.

However, Lord Justice Tomlinson, sitting with Lords Justice Mummery and Kitchin, dismissed her appeal, ruling that the evidence ‘came nowhere close’ to establishing that the respondents should be held liable for the subsidence damage.

The court also ruled that the award to the appellant of £5,000 damages was excessive and reduced that sum to £150.

 Berent v Family Mosaic Housing & Anr. Case Number: A1/2011/1575

Justin Osborne

Partner
T: 01626 202408
Email Me