Kennedy v Bournemouth Borough Council, 17.09.12, Bournemouth County Court

The claimant, C, owned and occupied a property in Bournemouth. The defendant, D, is responsible for a maple tree standing next to the property.

C alleged that in early 2009 the drains to her property became blocked and her garden was flooded. Later that year a survey was carried out showing roots from the tree had encroached into the drains, causing the blockage. C said she cleared the roots on several occasions.

C said that despite repeatedly notifying D of the problem they failed to address her complaints adequately. She therefore sought damages from D, alleging nuisance and negligence. Her claim included reimbursement of the costs of repairing and restoring her property.

C's allegations included that D permitted a tree to be planted which was unsuitable for the area, that they failed to carry out proper measures to protect the surrounding drainage, and failed to prevent the roots from encroaching into the drains to her property.

C also applied for an injunction requiring D to carry out works to prevent to roots from blocking her drains.

D denied liability. They said, among other things, that roots will not damage drains but they can grow into drains through existing cracks caused by other means. D denied the tree constituted a nuisance or a hazard.

The court held that by the spring of 2009 it was reasonably foreseeable to D that the maple tree's roots could cause blockages to the drains to C's property. D was then under a duty to consider what, if anything, would be reasonable to do about this, having regard to the amenity value of the tree and the cost of dealing with the problem.

The court noted that local authorities are responsible for thousands of trees and that expenditure has to be prioritised. Ordering this maple tree to be felled due to a blocked drain would, the court held, be a disproportionate response.

The court held that the roots did not cause cracks in the drains. The owner of a property is primarily responsible for closing gaps in their drains and this would be the most effective way to solve the problem. The claim was dismissed.

Comment: The council defended this claim for damages for root encroachment to drains, citing the recent judgment in Berent v Family Mosaic Housing (Court Circular, September 2012). In that case, the Court of Appeal held that if a tree creates a 'real risk' of property damage, consideration should be given to what action, if any, should be taken to address that risk. It might be appropriate to take no action if the risk of damage is reasonably assessed as very low. In this claim, the court also supported the council defending it from a costs perspective, accepting that, in the current economic climate of strict financial constraints, care must be taken to prioritise expenditure; had it not defended the claim there was the risk of the floodgates being opened to require councils to deal with thousands of trees for which they are responsible.

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