Trespass and nuisance roots, severance and liability

[Derek Eames]

Errm  I would suggest looking at Kennedy v Bournemouth BC.

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.

 

I have personally mediated in a case like this. It is for the property owner that the drains and sewers are their responsibility  based on this case precedent and not the neighbouring tree owner

[daltontrees]

10 hours ago, Derek Eames said:

Errm  I would suggest looking at Kennedy v Bournemouth BC.

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.

 

Thanks this is a useful and important point. Drains and sewers if properly constructed shouldn't allow roots to enter and the tree owner's liability for blockage should be limited or negated.

 

There's a couple of other ways to look at this issue. Firstly a sewer that allows roots to enter will allow sewage to escape. That's a problem of the sewer's owner. Second way of looking at it is, should a tree owner be expected to foresee that a neighbour's sewer will be badly constructed? I don't think so, the law could not operate if this principle was applied. I'd even go as far as to say a tree owner is entitled to assume that a sewer is properly constructed.

[difflock]

But surely large/larger roots are capable of displacing a sewer pipe, thus opening joints, which then allows the roots to penetrate?

[Khriss]

2 hours ago, difflock said:

But surely large/larger roots are capable of displacing a sewer pipe, thus opening joints, which then allows the roots to penetrate?

Ongoing property maintenance there i would say, many drains are in poor shape, not surface visible usually, so it is dealt with on a failure point basis. Tree root development is unquantifiable, until you dig / airspade the ground. Like tree inspection it should be record and action planned (  but that costs money and is a bother  ? )  K

[daltontrees]

11 hours ago, difflock said:

But surely large/larger roots are capable of displacing a sewer pipe, thus opening joints, which then allows the roots to penetrate?

Published research is that roots can't crush and break pipes. They may be present alongside pipes if root penetration in the trenchfill is easier than adjacent ground. But they still shouldn't be growing preferentially beside a pipe unless it is leaking and giving them a steady supply of water and (erm) nutrients.

 

I had to research and report last year on the resistance of a pipe to crushing by roots in contact with it. The strength of a circular intact pipe is phenomenal, much greater than the pressure exerted by roots in contact.

 

And if the root contact was right on a joint? I think the fill material around the joint would need to be very loose for displacement to take place. But I suppose it would be possible for very short sections of pipe with filled joints (not push-fit modern ones.

[Khriss]

Radial expansion of roots is significant, but wouldnt put my money on it, in this case. Think mediation way forward here. K

[tree77]

14 hours ago, daltontrees said:

Published research is that roots can't crush and break pipes. They may be present alongside pipes if root penetration in the trenchfill is easier than adjacent ground. But they still shouldn't be growing preferentially beside a pipe unless it is leaking and giving them a steady supply of water and (erm) nutrients.

 

I had to research and report last year on the resistance of a pipe to crushing by roots in contact with it. The strength of a circular intact pipe is phenomenal, much greater than the pressure exerted by roots in contact.

 

And if the root contact was right on a joint? I think the fill material around the joint would need to be very loose for displacement to take place. But I suppose it would be possible for very short sections of pipe with filled joints (not push-fit modern ones.

Just out of interest do you have a link to the research regarding roots and crushing drains please?

[DanR]

Hi all,

 

Thank you for the continued discussion on this and apologies I haven't been able to follow up until now. This is all very insightful to read from a layman's point of view. From the ongoing conversation it clearly shows that there are many points to consider and differing opinions. However, once again from an inexperienced perspective (mine ), it shows the lack of definitive legal guidance on where liability lies and therefore sadly will be one for the legal system to answer in due course.

 

I also wanted to clarify that when referring to damage, what we are challenged with is not a pipe but rather large roots directly butting up against a square concrete manhole shaft which has an internal horizontal crack and root ingress inside it about a foot down among other things. Foreseeable future problems along with the damage now is the concern if the roots are left unabated. 

 

In any case, I thank you all for you time, input and guidance so far. Much appreciated. 

 

Dan

[kevinjohnsonmbe]

31 minutes ago, DanR said:

one for the legal system to answer in due course.

Unless comprehensively insured (and even that could have future cost implications) if it ends up with the barristers it’s almost certain to cost more than just getting it fixed. 
 

Neighbour disputes potentially impacting future house sale value, time, effort, emotional stress....

 

Its a fine balance between cost / benefit. 

[DanR]

Thanks Kevin, you are totally right. In our situation the tree is mature, diseased, has been categorised as C level and the roots are causing problems. Our offer (on the basis of initial specialist advice) to help cover costs for removal and replacement with something new and with root barriers, has been declined. The hope was to avoid an official dispute, however we are in an unfortunate position now and only time will tell how this plays out. 

 

Out of interest, for the specialists among you, when a tree is diseased evident by a clear fruiting bracket (which i have read that by the time it shows means it will have likely had the disease internally for a few years already), is it possible to give a definitive minimum life expectancy purely on a visual basis? If no specialist equipment is used to determine the level of internal decay during the inspection ie a Shigometer® or a Vitalometer for example, how can the level or severity of decay be known? A minimum of 10+ years life expectancy provided as an absolute within a report, strikes me as pure guess work considering any increase in internal decay can be impacted by unpredictable external/environmental factors. 

 

Internal heartwood rot to my understanding is just that, internal and from the inside out. Last year a 9-10 meter 2.5ton horse chestnut that was decayed internally, failed and fell onto our driveway (crushed the car, ruined the driveway and missed the front of our house by 90cm). Having lived through that, I hope you understand the concerns as I hoped our neighbours would have also. In any case, I would assume that ongoing decay is a given, it cannot be stopped - 20% / 30% decay now for example could turn in to 60% - 70% relatively quickly or may not and no one knows what that % currently is. I believe it's unpredictable and therefore the risk of death and failure of the tree is very much real and possible as we experienced first hand. It's why when I read a report that talks in certainties based on no scientific measurement it raises concerns.

 

Thanks

Dan