From the monthly edition of Court Circular for January 2014 Zurich Municipal

We featured the High Court's judgment in this case in our November 2012 edition.

The claimant, C, owns and resides in one of several semi-detached houses backing on to a park for which the defendant, D, is responsible. Two Hybrid Black Poplar trees in the park stood approximately 30 metres from C’s property.

In 2003 C noticed cracking to parts of her property, including a single-storey extension. In 2006 the cracking worsened. C removed a nearby magnolia tree, and some of D's poplars were severely pruned, which reduced the movement to C's property. C claimed the cost of underpinning and repairing her property, alleging D's trees were responsible for the damage.

Owners of other properties in the road had submitted claims to D regarding subsidence damage allegedly caused by D’s trees from 1996/97.

The High Court held that, by 1998, the roots could have extended up to 35 metres, causing reasonably foreseeable damage to shallow foundations, as used in extensions built in the 1960s and 1970s. D should have foreseen that any extensions in the C’s road falling within approximately 35 metres of D’s trees might suffer subsidence damage from its trees.

The court held that from 1998 to 2005, D should have pruned the trees regularly, given D’s awareness of the foreseeable risk of property damage from their roots, particularly trees within 35 metres of a house. There was no documented evidence of D’s practice between 1998 and 2006 because D had then believed it was not obliged to operate a system to manage the trees in question. From 2006, D's policy was for the trees to be pruned every four years. The judge also said that, had D operated a cyclical pruning policy from 1998, which required its contractors to carry out a 25% crown reduction, the contractors would probably have carried out greater pruning than their 25% remit, and this would have averted the damage. The court therefore held D liable for the damage in 2003 and 2006.

D appealed. It contended, among other things, that even if it had operated and documented a cyclical system of pruning from 1998, damage would still have occurred. D also disputed the judge's findings as to the contractors going beyond their remit with the pruning.

The Court of Appeal held the High Court was entitled to find that, from 1998, damage from D's trees' roots was foreseeable to D. Since then, D had breached its duty to take reasonable steps to prevent its tree roots from damaging C's property. D did not have to operate a specific regime to manage the trees; the trial judge had only considered the possibilities available to D.

The Court upheld the ruling that D was responsible for the damage in 2003 and 2006, for failing to carry out cyclical pruning until 2006.

Regarding causation, the Court held D's breach of duty was in failing to act. The Court held the trial judge was entitled to find that, had a system of cyclical reduction works operated from 1998 onwards, it would have involved greater reduction than the later works orders specified.

The appeal was dismissed.

Comment: From this ruling, local authorities will wish to re-consider the notion of 'reasonable foreseeability' regarding their duty to operate a tree management policy. There should be evidence of maintaining a policy of tree management that is reasonable in the circumstances, as well as records of the history of related claims and the steps taken in response. Resources permitting, they might also consider increased consultation with arboriculturalists regarding maintenance programmes. We have also recently seen the significance of the duty on householders themselves, concerning potential property damage from trees, in Khan v Harrow LBC and Khan, featured in our November 2013 issue. Please click here for full judgment.

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