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Council Not Liable for Tree Roots Subsidence

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

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

The woman had commissioned various repair works after noticing cracks in the bricks and walls of her property and issued proceedings against the respondents, alleging that the encroachment onto her land of the roots of two large plane trees situated on land owned by the local authority 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 the roots would undermine the property’s foundations.

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

The property owner 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. The Court dismissed the appeal, however, 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 homeowner of £5,000 in damages was excessive and reduced it to £150.

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