Another subsidence question thread!

[sloth]

Hello all, I don't normally get involved in tree related subsidence matters however a family friend has asked for some unofficial advice in how to proceed with a situation.

The situation-

Some years ago they sold a chunk of their garden to built upon. They had planted some trees along the boundary, they don't know what and the concerned (and persistent) neighbour tells them it is a willow. He also says it could cause subsidence and they must take it down.

I don't know what the tree really is, how big or close to the house it is either. I'm not sure how old the new house is, fairly recent in years I think.

As far as I am aware there are no signs of movement of the house.

 

Obviously the neighbours can't force them to cut down their own tree.

 

I'm thinking of telling them to inform their neighbour:

a. They can't force them to cut down their tree unless it is causing an actionable nuisance. (miscellaneous provisions act?)

b. If they believe the house is suffering subsidence they ought to contact their buildings insurance company.

 

As a side note:

it is impossible to accurately predict where subsidence may occur. Even when it is present, proving any vegetation is the cause is a lengthy and expensive process!

 

Any thoughts/comments on the above? Things to add/leave?

 

Ps. Finally am I right in thinking houses built to nhbc standards should be, for want of a better word, immune to subsidence even if trees are planted/grown at a later date?

 

Thanks all...

[Gary Prentice]

Hello all, I don't normally get involved in tree related subsidence matters however a family friend has asked for some unofficial advice in how to proceed with a situation.

The situation-

Some years ago they sold a chunk of their garden to built upon. They had planted some trees along the boundary, they don't know what and the concerned (and persistent) neighbour tells them it is a willow. He also says it could cause subsidence and they must take it down.

I don't know what the tree really is, how big or close to the house it is either. I'm not sure how old the new house is, fairly recent in years I think.

As far as I am aware there are no signs of movement of the house.

 

Obviously the neighbours can't force them to cut down their own tree.

 

I'm thinking of telling them to inform their neighbour:

a. They can't force them to cut down their tree unless it is causing an actionable nuisance. (miscellaneous provisions act?)

b. If they believe the house is suffering subsidence they ought to contact their buildings insurance company.

 

As a side note:

it is impossible to accurately predict where subsidence may occur. Even when it is present, proving any vegetation is the cause is a lengthy and expensive process!

 

Any thoughts/comments on the above? Things to add/leave?

 

Ps. Finally am I right in thinking houses built to nhbc standards should be, for want of a better word, immune to subsidence even if trees are planted/grown at a later date?

 

Thanks all...

 

To (not) answer your last question first. There is at least one example that I'm aware of, where a new estate was planted on I think arable land. No trees present. No account was taken for new owners planting trees and subsidence occurred as they grew. Dalgea O'callahan has an article somewhere.

 

The 'miscellaneous provisions' is an act used by the local authority, which gives them certain powers. Its no applicable to the individual. The neighbour, if the tree is causing, or immediately about to cause, damage, may apply to the court for an injunction.

 

The court would tell the owner to abate/stop/prevent the nuisance (if proven).

 

To answer question b, yes definitely. I think that if the neighbour is claiming damage they need to know. In the cases that go to court, it seems that costs may be incurred from the time that the owner is given notice of the problem. The insurers will want proof of damage and hopefully will employ the necessary experts to counter any claim.

 

When you say it is impossible to predict subsidence, it isn't. There are no cases of subsidence on sandy soils, it only occurs on highly shrinkable clays. Unless the neighbour has had the soil tested, no-one even knows if it is subject to volumetric change.

 

Don't forget the neighbour also has a certain number of rights to self help himself> Unless the tree is protected, he may cut roots but would incur liabilities if having done so the tree fell over and caused damage etc. It's a minefield tbh.

 

I'd get a lot more information before saying too much and even then be careful.

[Gary Prentice]

I don't know how to link but the article I was referring to was:'Tree-related subsidence:

Pruning is not the answer' by Oisin Kelly & Dealga P O'Callaghan

[Paul Barton]

Your friend could only be found to be negligent if the risk of subsidence is 'reasonably foreseeable'.

 

Whether or not it is reasonably foreseeable depends on soil type, distance of building from trees and foundation depth.

 

If it is not foreseeable and there is no current movement then your friend is not obliged to do anything at all.

[Gary Prentice]

In the absence of knowledge of soil type and foundation depth, and the fact that the neighbour has informed the owner of the possibility of risk, shouldn't the insurers be informed?

 

If a claim did arise and the insured hadn't informed them, would they have a 'wiggle out'.

[daltontrees]

All good advice so far, in my opinion. The reality is that you don't know enough yet to decide on any particular course of action. You would need at least to know the soil type (preence or absence of shrinkable clays, possibly their plastic and elastic limits), depth of foundations, species of tree(s), distance(s) from trees to buildings, whether boundary wall will curtail roots, the part of the country you're in and probably a few more bits of info.

 

If I was you I would steer clear of giving anything other than general information about the legal consequences, subsidence claims can run to tens of thousands and you don't want to be implicated or even to have your friends set off on the wrong tack in dealing with the neighbour.

 

I would think it is worth putting the insurance company on notice if a formal complaint is made by the neighbour.

 

Meantime I don't think you can say much without having lots more info and knowing what it means for the situation. The generality is that for subsidence you need all of the following - shrinkable clays, unduly shallow foundations, persistent soil moisture defecit, a thirsty tree species, closeness of building and tree, no barrier to root development in the direction of the building.

 

I would slightly disagree with one of previous poster's comments insofar as I don't think 'negligence' comes into it, it is more to do with encroachment and nuisance.

 

I spotted recently ina case somewhere that a neighbour doesn't need to notify the tree owner of subsidence and give him an opportunity to do something about it, he can go straight to making a claim, backed up if necessary by a civil court action if proof is needed of the cause and effect.

 

Tread carefully is what I would suggest. The courts (if it ever gets that far) seem reluctant to acccept evidence without substantial engineering input, either by an engineer or a specialist tree guy.

[Gary Prentice]

All good advice so far, in my opinion. The reality is that you don't know enough yet to decide on any particular course of action. You would need at least to know the soil type (preence or absence of shrinkable clays, possibly their plastic and elastic limits), depth of foundations, species of tree(s), distance(s) from trees to buildings, whether boundary wall will curtail roots, the part of the country you're in and probably a few more bits of info.

 

If I was you I would steer clear of giving anything other than general information about the legal consequences, subsidence claims can run to tens of thousands and you don't want to be implicated or even to have your friends set off on the wrong tack in dealing with the neighbour.

 

I would think it is worth putting the insurance company on notice if a formal complaint is made by the neighbour.

 

Meantime I don't think you can say much without having lots more info and knowing what it means for the situation. The generality is that for subsidence you need all of the following - shrinkable clays, unduly shallow foundations, persistent soil moisture defecit, a thirsty tree species, closeness of building and tree, no barrier to root development in the direction of the building.

 

I would slightly disagree with one of previous poster's comments insofar as I don't think 'negligence' comes into it, it is more to do with encroachment and nuisance.

I spotted recently ina case somewhere that a neighbour doesn't need to notify the tree owner of subsidence and give him an opportunity to do something about it, he can go straight to making a claim, backed up if necessary by a civil court action if proof is needed of the cause and effect.

 

Tread carefully is what I would suggest. The courts (if it ever gets that far) seem reluctant to acccept evidence without substantial engineering input, either by an engineer or a specialist tree guy.

 

That may no longer necessarily be the case. Berent V Family Mosaic & Islington Council went to Appeal and finished this year. I'm still trying to digest it as there are loads of other factors, including the channel tunnel, but I think this will be a landmark case for the future.

 

Hopefully This will link; Berent v Family Mosaic Housing & Anor (Rev 1) [2012] EWCA Civ 961 (13 July 2012)

 

Just when you thought you'd finished reading law too:001_tt2:

Edited July 28, 2013 by Gary Prentice

[daltontrees]

That may no longer necessarily be the case. Berent V Family Mosaic & Islington Council went to Appeal and finished this year. I'm still trying to digest it as there are loads of other factors, including the channel tunnel, but I think this will be a landmark case for the future.

 

Hopefully This will link; Berent v Family Mosaic Housing & Anor (Rev 1) [2012] EWCA Civ 961 (13 July 2012)

 

Just when you thought you'd finished reading law too:001_tt2:

 

I don't suppose there will ever come a time when the law will stop changing. Appeals do my head in because I learn what was decided before appeal and then have to unlearn it if the appeal is successful. I just read the 2012 appeal, fell asleep (it has been a ong hard day...) and when I woke up 10 minutes ago I can't remember anything of what I read. I still amn't at all sure what the case is about.

 

Nor can I find the mention in a case that I referred to earlier about when liabiltiy begins. That seems to have been part of the subject of Berent 2011. But i did come across this bit in Siddiqui v Hillingdon which kind of says what I sadi earlier about negligence.

 

'In both [cases] the judgments ... are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it….'

 

A rare instance of a point of law being clearly stated.

 

I see it is quoted in Berent too.

 

Anyway, it all reinforces that there seem to be many pitfalls in trying to generalise about liability arising from tree-related subsidence. There is some idea forming in my head now that since the case law suggests that it is incumbent on a tree owner to reasonably foresee damage that could be caused by it; this is the same as if a tree fell over and damaged a property or hurt someone, had the failure of the tree been foreseeable the owner would be negilgent; on the other hand the damage caused by tree-related subsidence can be extensive but the damage happens progressively and hidden from view underground and can't easily be attributed to any one tree, but it is still a legal nuisance, stopping short of being called negligence. So my point if I have one as such is that foreseeable is foreseeable above and below ground, and liability follows from it. A neighbour bringing their perception of the risk to your attention doesn't change the risk but could be a useful adjunct to take definitive written professional advice. Unless the tree is 100 metres away and is 1m high.

 

Finally finally, I am uncomfortable for all those people who have trees in areas of shrinkable clays who might have to foresee damage. Unlike the parts of the tree above ground where occasional inspection for obvious defects by the householder themself with no specialist tree knowledge has been deemed enough to discharge duty of care (Selwyn Smith v Gompels, for anyone who is having trouble getting to sleep), the average and even the above-average punter couldn't possibly foresee tree related subsidence. If my reading of the way things are heading in Berent are correct then everyone with a tree and a neighbour might have to pay to get an opinion on foreseeability of damage, regardless of whether their neighbour has brought the subject up.

[Gary Prentice]

I'll be brief because I've had along day too, I've just arrived home. I think what is particularly pertinent to this case is the Judges examples of foreseeable. Both arb experts admitted that it was foreseeable that given the proximity of the council owned trees, the shrinkable clays etc subsidence was foreseeable to every house on the road. The question then became to what was reasonable.

 

Wholesale felling of every tree that had the potential to cause damage wasn't necessary,."Tree owners can now argue that they are not liable for damage that has occurred prior to them being made aware that damage has occurred, solely on the basis of a potential risk. In this case, it was only when the potential risk became a real risk that the liability for damage passed to the tree owners.but when proved to be the cause it was only then necessary."

 

Islingtons Tree manager sees this case as beneficial legal and his comments are worth perusing.

[Mark Bolam]

Btggaz, your help in my thread a couple of weeks ago is much appreciated.

 

The more I delve into the subject, however, the more confusing it becomes!

 

I would say that most cases are pretty specific, involving PI of soil, foundation type and depth, proximity/size/species of tree, and age of house/tree.

 

Even then there seem to be exceptions!

 

Please keep us updated Sloth.