Tree Legal

[farmer rod]

I have been shown a letter today which includes the following text....

 

As you may be aware damage caused by tree roots constitutes a nuisance in law and action can be taken not only to recover the costs associated with investigating and repairing damage already caused, but also to enforce vegetation management and/or recover costs and damages that may be incurred if that nuisance is not abated. i.e. steps are not taken to prevent the vegetation from continuing to cause damage to the Policyholder's property.

 

The landowner (not me,) has been asked to remove an oak tree, which is fair enough if it is actually causing a problem, but who's liability is it? who would usually bear the cost. The above seems a bit strong considering this is the first salvo from next door, and it is indicated that "engineers will be investigating the cause of the subsidence"

 

As an aside, if you remove a large tree, to you not get the opposite effect, i.e. heave

[Gary Prentice]

So the neighbours house is possibly suffering from subsidence and there's an oak nearby on neighbouring land - which must be at fault so the house owner wants it down?  Yes, the letter is a bit strong (written by a lawyer?) as an opening gambit. My first action, if the tree owner, would be to contact my insurers.

 

Afaik, liability/responsibility starts once the tree owner is informed that, on the balance of probabilities, the tree is causing subsidence. I.e. after a proper investigation has been carried out.

[daltontrees]

Agreed, contact your insurers. Even if it's not their concern you are better checking and keeping them in the loop.

 

I have just -re-read Khan v Kane (a very appropriate and rigorous analysis of the current law) and it suggests that liability can begin before proper investigation if a prudent landowner should have known damage might occur and did not investigate. But it's a fine balance. In the Khan case the tree owner it was found should have been aware of the possibility of damage from one of the trees but not from the other. This was found even though the court was satisfied that Kane had no actual knowledge.

 

All the usual caveats apply here. Are there shrinkable clays? Are the foundations negligently designed or built? Are there persistent soil moisture deficits. Is the damage really subsidence? Was it the tree that caused the subsidence, or something else? And so on...

 

Quite right to be concerned about heave. The tree should not be removed without specialist advice. This may or may not be provided by the insurer. Involve the insurer.

 

And of course, the moment after which the tree owner would be expected to have knowledge of the possibility of tree-relted subsidence has passed.

[Gary Prentice]

22 minutes ago, daltontrees said:

I have just -re-read Khan v Kane (a very appropriate and rigorous analysis of the current law) and it suggests that liability can begin before proper investigation if a prudent landowner should have known damage might occur and did not investigate.

I haven't read that recently but from what I can remember I thought at the time it had a number of flaws (IMO) 

Firstly, how is a prudent owner meant to investigate? Having a tree growing on a shrinkable clay, what can an owner reasonably do? I can't remember off hand, but I do have a memory of a judge also saying that if owners removed every tree with the potential to cause subsidence it would result in desertification.

 

Not arguing Jules but I think the Judge in KVK overstepped the bounds of reasonableness in the summation and decision and I've a feeling that the precedent created won't last - or rather that I hope it won't.

 

Edit; https://www.ltoa.org.uk/news/170-seeing-the-wood-for-the-trees seems to go against some of the results of KvK

Edited June 1, 2019 by Gary Prentice

[Khriss]

I get a lot of these. And most are spurious chancers, odd that the actual damage is not  mentioned. I send them back demanding an arb report. Structural engineers report and soil engineers report....... Oddly I don't often get a reply ? cos that costs money but is up to plaintiff to prove damage or loss.  k

[Paul Cleaver]

7 hours ago, farmer rod said:

I have been shown a letter today which includes the following text....

 

As you may be aware damage caused by tree roots constitutes a nuisance in law and action can be taken not only to recover the costs associated with investigating and repairing damage already caused, but also to enforce vegetation management and/or recover costs and damages that may be incurred if that nuisance is not abated. i.e. steps are not taken to prevent the vegetation from continuing to cause damage to the Policyholder's property.

 

The landowner (not me,) has been asked to remove an oak tree, which is fair enough if it is actually causing a problem, but who's liability is it? who would usually bear the cost. The above seems a bit strong considering this is the first salvo from next door, and it is indicated that "engineers will be investigating the cause of the subsidence"

 

As an aside, if you remove a large tree, to you not get the opposite effect, i.e. heave

how old is the tree - when was the house built

[farmer rod]

53 minutes ago, Paul Cleaver said:

how old is the tree - when was the house built

Thanks for your replies everyone,  both probably over 100 yrs old and something else perhaps on the agenda, (I couldn't read the correspondence, because I didn't have my glasses) I will post if I find out more, but in the ,meantime useful reassurance for the landowner.

[Stubby]

There is the other side of the coin ...If they abate the nuisance  and sever some roots causing the tree to fail the boot could be on the other foot .  Any TPO ?  

[tree77]

Hi,

 

All though the wording seems strong on the letter, think its a fairly standard wording, I see it a lot when we receive claims against LA trees, but we choose not to take any action unless the actually provide supporting evidence,  which the generally do provide.

As a minimum we ask for soil analysis to confirm shrinkable clay, root analysis and engineers report which show the have rules out of course of subsidence.

 

Level and crack monitoring is also sometimes provided. Is there any other vegetation which may have an influence on the subsidence?

 

Your customers insurance provider should be able to help, as previously stated

 

 

 

[Jon Heuch]

On 01/06/2019 at 12:25, Gary Prentice said:

Not arguing Jules but I think the Judge in KVK overstepped the bounds of reasonableness in the summation and decision and I've a feeling that the precedent created won't last - or rather that I hope it won't.

Khan v Harrow Council and Kane is not a case that sets a "precedent". It was a case determined on the evidence put before the court. It does show that it is possible to successfully argue the case for negligence against a tree owner......but that may not be possible in all cases.

Please remember that there is an ABI Domestic Tree Root Agreement between many of (but not all) the insurers of domestic property. 

 https://www.abi.org.uk/globalassets/files/subject/public/home-insurance/2017/abi-domestic-subsidence-claims-agreement-and-guidelines-december-2017.pdf

Google "abi domestic tree root agreement" & you will see various commentaries.

In a large proportion of domestic tree root claims (domestic tree owner; domestic property damaged) the issue of liability will never be pursued because people comply with the agreement; it is only when they don't (i.e. they refuse to abate the nuisance) that the legal implications need to be considered.