Nuisance Trees Owned by the Council

[Tree monkey 1682]

On 06/11/2025 at 08:55, Mark Bolam said:

 

That’s a fairly simplistic view, but one I totally agree with.

It is simplistic,or maybe to the point , but waffling on people don't always seem to 'get it' .

[daltontrees]

On 06/11/2025 at 07:06, Ledburyjosh said:

Meaning that there may be a legal argument for the council to prune or remove trees?

 

How would you assess or quantify what level of deprivation warrants action?

There are situations where the Council could be compelled to prune or remove, either by court order or expectation of losing a court case. Dr. Mynors observes that these rarely occur because of the cost of litigation. But not because of the absence of a right.

Proving the right of self-abatement is easier than proving the case for an injunction. Mere encroachment is abatable, full stop. Forcing the tree owner to do it and pay for it appears to have a higher threshold of 'actionable nuisance'. If it is based on dampness to the building a causative link would have to be proven.

I am convinced that if case law continues to dribble out until the end of time there will never be a simple rule that predicts success in litigation. The Tate Modern case recently went on for pages trying to pin down the modern law of nuisance, going far beyond what was needed for the case in hand. It alsways comes down to fact and degree, and the behaviour and depth of pockets of the combatants.

Put simply,the trees have no right to be there. If they are causing damage, even indirectly, they should be removed. It is probably easier and cheaper (however galling it might feel) to take matters into you own hands than to face the expense, delays and uncertainty of forcing the tree owner to do it. But the right exists to be enforced.

Have a look at Delaware Mansions v Westminster (appeal) for more on rights to injunctions and damages.

Edited yesterday at 16:45 by daltontrees

[Ledburyjosh]

5 hours ago, daltontrees said:

There are situations where the Council could be compelled to prune or remove, either by court order or expectation of losing a court case. Dr. Mynors observes that these rarely occur because of the cost of litigation. But not because of the absence of a right.

Proving the right of self-abatement is easier than proving the case for an injunction. Mere encroachment is abatable, full stop. Forcing the tree owner to do it and pay for it appears to have a higher threshold of 'actionable nuisance'. If it is based on dampness to the building a causative link would have to be proven.

I am convinced that if case law continues to dribble out until the end of time there will never be a simple rule that predicts success in litigation. The Tate Modern case recently went on for pages trying to pin down the modern law of nuisance, going far beyond what was needed for the case in hand. It alsways comes down to fact and degree, and the behaviour and depth of pockets of the combatants.

Put simply,the trees have no right to be there. If they are causing damage, even indirectly, they should be removed. It is probably easier and cheaper (however galling it might feel) to take matters into you own hands than to face the expense, delays and uncertainty of forcing the tree owner to do it. But the right exists to be enforced.

Have a look at Delaware Mansions v Westminster (appeal) for more on rights to injunctions and damages.

Thanks.

 

So I should change that last sentence to 'it can be the councils problem if you have deep pockets and a stubborn attitude.'

[Tree monkey 1682]

49 minutes ago, Ledburyjosh said:

Thanks.

 

So I should change that last sentence to 'it can be the councils problem if you have deep pockets and a stubborn attitude.'

Hmm ,look how precious the people around hadrians wall are about a sycamore tree! Im surprised a listed /protected wall didnt override the tree.

Nether the less deep pockets or knobbing an arboricultural solicitor. 

But most times council are stubborn and my original comment is quite true , that you brought the house knowing the tree was there !

[Ledburyjosh]

10 hours ago, Tree monkey 1682 said:

Hmm ,look how precious the people around hadrians wall are about a sycamore tree! Im surprised a listed /protected wall didnt override the tree.

Nether the less deep pockets or knobbing an arboricultural solicitor. 

But most times council are stubborn and my original comment is quite true , that you brought the house knowing the tree was there !

I would typically agree with the knowing the tree was there statement. But Daltontree post seems legally more accurate, suggesting things can be done but the expense would appear to be the limiting factor, hence little ever does get done by tree owners in this situation as its not affordable to pursue it, for most anyway.

[Stephen Blair]

Just saying!

[Ledburyjosh]

ChatGPT summary:

 

Here’s the crisp, arborist-friendly decoding of Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, delivered with a hint of narrative sparkle 🌿📚

 

The core story

 

A row of London mansion-block flats began to sigh and settle, their foundations quietly distorted by thirsty tree roots from a London plane owned by Westminster City Council. The freeholder spent money on underpinning the building, then turned to the council and said: you caused this; reimburse us for the remedial works.

 

Cue the legal spotlight.

 

What the House of Lords decided

 

The Lords offered three key principles that still echo through arboricultural liability circles:

 

1. A continuing nuisance gives rise to ongoing liability

 

If roots keep trespassing beneath someone’s land and causing damage, that is a continuing nuisance.

Even if the tree has stood there for decades, once the landowner (the council) knows or ought to know about the damage their tree is causing, they must act.

 

2. Knowledge triggers responsibility

 

The council knew about the damage and didn’t remove the tree or take mitigation steps.

Once aware, they had a duty to abate the nuisance, and failing to do so made them liable for the consequences.

 

3. The claimant can recover reasonable remedial costs

 

Even though the freeholder incurred underpinning costs before acquiring the property, the Lords held that those costs were recoverable.

The critical point: the nuisance was ongoing, and the council failed to stop it despite notice.

 

Why this matters for tree professionals

 

This case is a quiet titan in UK tree-law. It means:

 

🌱 Root-induced subsidence creates liability if you know about the risk and don’t act.

🌱 Formal notice (letters from insurers, engineers, surveyors) puts the tree owner firmly in the hot seat.

🌱 Failure to act becomes negligence and nuisance, even if the tree wasn’t negligent before you were warned.

🌱 Costs reclaimable include expert fees, underpinning and other remedial works, as long as they are reasonable.

 

The nutshell takeaway

 

Once you’re aware a tree is causing subsidence, you must act.

Ignoring it leaves you paying for the underpinning party, and possibly more.

 

[Ledburyjosh]

More ChatGPT... some good learning. My original post was wrong. Based on Daltontrees and some AI research it OP may well have a case against the tree owners.

 

Tree-Related Dampness as Legal Nuisance

 

One-Page Reference Sheet for Arborists

 

Core Principle

 

If a tree on someone’s land causes continuing physical interference (e.g., dampness, moisture retention, blocked airflow) to a neighbouring property, and the owner knows or ought to know, they must take reasonable steps to abate it. Failure to act creates liability for ongoing damage.

 

This mirrors the logic from Delaware Mansions v Westminster (2001).

 

 

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When Trees Can Cause Damp-Related Nuisance

 

Dense canopy preventing drying of walls

 

Vegetation enclosing narrow gaps between trees and buildings

 

Branches or foliage touching structures and holding moisture

 

Leaf litter blocking gutters causing overflow and penetrating damp

 

Persistent shading leading to algae, staining, or wall deterioration

 

 

Actionable when effects are substantial, not minimal.

 

 

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Relevant Case Threads

 

Ball v Johnson (1925): Damp and deterioration from vegetation treated as nuisance.

 

Smith v Giddy (1904): Vegetation affecting land enjoyment and building condition actionable.

 

Lemmon v Webb (1894): Acknowledges that interference with air/light may amount to nuisance if damage results.

 

Sedleigh-Denfield v O’Callaghan (1940): Owner liable for continuing nuisance once aware.

 

Delaware Mansions (2001): Knowledge + failure to act = liability for ongoing harm.

 

 

 

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Liability Trigger Test

 

1. Is the vegetation causing or contributing to dampness or physical deterioration?

 

 

2. Is the interference material, not trivial?

 

 

3. Does the tree owner know or should they reasonably know?

 

 

4. Have they failed to take reasonable steps to abate the issue?

 

 

5. Is the damage foreseeable and continuing?

 

 

 

If yes: nuisance is likely established.

 

 

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Typical Evidence Used in Claims

 

Photographs of persistent damp or staining

 

Surveyor or damp specialist reports

 

Gutter/drain inspection images

 

Records of prior notification to the tree owner

 

Timeline of worsening condition

 

Shadow studies or canopy density notes

 

 

 

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Practical Notes for Arborists

 

Advise clients that damp-related nuisance is legally recognised when damage is provable.

 

Recommend early action once notified to avoid liability.

 

Keep written records of inspections, advice, and works.

 

Management options: reduction, thinning, clearance from walls, improved airflow, or phased removal.

 

 

 

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The Takeaway

 

Trees causing dampness can create a legal nuisance. Once an owner is aware, inaction opens the door to liability. The logic of Delaware Mansions applies beyond subsidence into any continuing, damaging interference.