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Causing a Nuisance: Tree Root Damage

View profile for Helen Porter
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Helen Porter here reviews two recent cases between neighbours regarding tree roots extending into properties, the importance of foreseeable risk, and gives guidance to commercial property owners on avoiding these risks.

Allowing tree roots to encroach on your neighbour’s land constitutes common law, private nuisance.

To make a claim against your nuisance neighbour for tree root damage, it has to be proven that the damage was caused by the encroachment of tree roots and that the owner of the tree breached the ‘duty of care’ owed to the neighbouring land owner.  The duty of care arising from nuisance in the context of tree roots, does not arise unless and until the tree owner has (or ought to have had) knowledge of the existence of the problem and the danger it poses.

Considering that breach of duty brings us to the thorny issue of foreseeable risk and the recent cases of Robbins v Bexley LBC [2013] andKhan v Harrow LBC & Kane [2013].

Looking first at the facts of Khan v Harrow & Kane, Mr and Mrs Khan owned a house next door to Mrs Kane.  Mrs Kane had a large cypress hedge on her property as well as an oak tree.  Whilst Mrs Kane admitted that her hedge and oak tree had caused damage to the Khans’ property, she argued that such damage was not reasonably foreseeable to her as an ordinary private owner of domestic property.

In this case, the Judge found that the test of foreseeability is not a subjective test depending on the particular defendant but it is an objective test of what ought to have been known by a ‘reasonably prudent landowner’.

On the facts, the Judge found that Mrs Kane did not have actual knowledge about the risk of damage to her neighbour’s property from her hedge and tree.

However, in analysing the facts, the Judge found a reasonably prudent landowner would have been aware of the real risk of damage to neighbouring property by the cypress hedge.  The hedge was very close to Mr and Mrs Khan’s property and dominated that side of the property.  In contrast the oak tree lacked any particular feature (such as position or height) that would put a reasonably prudent landowner on notice of the risk it posed to neighbouring property.  Judgment was given in favour of Mr and Mrs Khan for the damage caused by the cypress hedge.

This case highlights the fact that a tree owner will not escape liability simply because they are genuinely unaware of the risk posed by tree roots.  A reasonably prudent landowner must be aware of the risk and his or her duty to take appropriate action.

In the case of Robbins v Bexley LBC [2013] a landowner’s buildings suffered damage in 2003 and 2006 due to tree roots from the adjoining local authority park.

The local authority had been put on notice of the potential damage as a neighbour made a claim in 1996 and the authority had carried out tree reduction works in 1998.  The damage was therefore reasonably foreseeable and the authority had a duty to take appropriate action.

In fact, the authority planned a four yearly programme of reduction in the crowns of the offending trees but failed to implement it.

In the Court of Appeal, the authority claimed that, even if the plan had been implemented, it would not have prevented the damage in 2003 and 2006.  The Court held that was not the relevant test.  The authority’s duty was to implement (and where appropriate monitor) a programme that would prevent tree root damage.  As they had failed to do so, they were liable.

The above cases highlight that landowners must be proactive in investigating and taking action in cases of tree root damage.  In order to avoid liability, the tree owner must be aware of the problem and take appropriate action.

The risk is particularly relevant to owners of industrial parks and agricultural land with trees on or close to the boundaries. A prudent land owner will arrange regular surveys of such trees, preventative works, and ensure that their insurances cover damage to their neighbours caused by the roots of their trees.

If your neighbours have trees close to your buildings you should also consider carrying out a risk assessment and putting your neighbour on (written) notice of your concerns. Prevention is always preferable to cure and, if they ignore you, you have additional evidence for the subsequent court case.

If you have any concerns about the legal aspects of tree root damage you can contact Helen on 02380 717717.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.