Trees in a garden can be attractive and also provide other benefits including the comfort of shade.  Problems arise if a landowner allows the trees to encroach from his land onto the property of a neighbour.  To permit such encroachment amounts to a nuisance.

If, for example, roots are allowed to invade the neighbouring land, causing damage to property, the neighbour will have a potential right of action.

Damage can be caused by the roots taking water out of the soil, particularly where the root system is beneath the foundations of any building.  This is a natural process.  In warmer weather evaporation causes moisture loss and, naturally, the tree replenishes the water through its roots.  In the absence of rain, soil can then become dehydrated and, in the case of clay, the soil will shrink.  The clay will then swell when the rain comes in winter.  These movements in turn may cause movement and damage in buildings and structures.

Cases

In the 2001 case of Delaware Mansions v Westminster City Council, the House of Lords gave guidance on the law relating to a claim for damage by encroaching trees.  They formulated the following test:

a) What is the duty between neighbours with regard to trees?

To support a claim for damages it has to be shown that the damage was caused by the encroachment and that the owner breached the duty of care owed to their neighbour.  In this context, a private nuisance may be caused by a landowner doing something that is lawful but his conduct is not confined to his own land but extends to the neighbour’s land by encroachment, causing physical damage to land or buildings or vegetation or unduly interfering with the neighbour’s comfortable and convenient enjoyment of their land.  Where the nuisance is not caused by a deliberate act, the duty does not arise unless and until the landowner has, or ought to have had, knowledge of the defect and the danger created.

In the 2011 case of Berent v Family Mosaic Housing and London Borough of Hillingdon, the Court of Appeal applied the decision of the lower court and said that the general law of negligence and nuisance applies to tree root cases.  They are not special.

Depending on the circumstances, it may be reasonable to take no action if the risks are unlikely to result in danger.  The test is whether the defendant should have foreseen reasonably a real risk of danger.  That is a risk for which they should have considered taking reasonable avoiding or minimising steps.  It is necessary to consider the degree of risk and likely damage.

b) Did the tree roots cause damage?

c) Was the harm reasonably foreseeable?

d) Were there any practical measures that could have been taken to minimise or avoid damage?

e) Was there a reasonable response to the damage?

Remedies

Nuisance is an actionable tort.  The person suffering the damage (claimant) can institute civil proceedings against their defendant neighbour asking for either or both:

i) Injunctive relief to abate the nuisance and prevent recurrence.

ii) Damages for compensation for loss.

Checklists

a) The person damaged (claimant) should check the following matters:

• The claimant needs to establish who is responsible for tree maintenance, which may be, for example, the neighbour or highway authority.

• If your property is near trees, you should check routinely to see whether any damage is being caused or may be caused to your property.

• If there is damage actual or potential, you should notify the owner of the trees immediately.  This will give the tree owner a maximum amount of time to deal with the issue.

• If, following professional advice, it appears that underpinning work may be required, this should be raised as early as possible.

b) Tree owners should check and be aware of the following:

• They should regularly survey their trees and check whether damage is being caused or is likely to be caused to neighbours’ properties.  The tree owner will be liable if he or she ought reasonably to have known of the damage being caused

• Be prepared to manage trees properly and to make any possible damage less likely or minimise any potential harm.

Remember that you must show that damage was reasonably foreseeable and that there were reasonable steps that the defendant could have taken to eliminate or minimise risk.  This must also have regard to the social utility of the existence of the trees.

If any of the matters in this brief synopsis are of interest or may be affecting you, please contact Michael Hartley, Peter Miller or John Campbell.