Impact of tree roots on my neighbour’s property?

[Gary Prentice]

Now this is pedantic but its important so i'll say it anyway. Cases have been won and lost on appeal by the inappropriate use of the word 'proven' in this type of case.

 

This type of case takes place in the civil area so there is no burden of proof as with criminal law. i.e. beyond resonable doubt. Civil litigation is based on the balance of probabilities. i.e. that there is more chance than not. for example, if there is a 51% or indeed a 50.01% chance that the damage was caused by the tree that is enough to win. This wouldn't come close in a criminal case such as TPO prosecution.

 

Its a point worth remembering when advising clients.

 

 

'Beyond reasonable doubt' V 'on the balance of probabilities'

 

so few words for such a great distinction:biggrin:

[daltontrees]

'Beyond reasonable doubt' V 'on the balance of probabilities'

 

so few words for such a great distinction:biggrin:

 

And when you add contributory negligence, the blame or at least the damages in a civil case can be apportioned.

[Chris at eden]

Khan and Khan v Harrow and Kane 2013

 

That's the one.

[SL40C]

Regarding peatff's comment "If the place was built 30 years ago shouldn't the architect have made provision for the conditions allowing for the fact there are trees there and therefore take responsibility for any consequences ? That's why you pay them so much."

 

This point relates to my thinking about 'timeline'. The Ash has a girth of 3.1m which I understand makes it perhaps 150 years old (I may be wildly out on this); my neighbour's property was built in 1985 and mine in 1994.

My thoughts:

1) With a mature tree/root structure in place aren't my neighbour's and their architects bound to make proper provision for a known risk?

2) What could I have done in 1994 (when I bought my property newly built) or any time since, to limit the impact of such a mature tree/root structure?

 

To my simple mind this timeline negates my liability.

I would add that between 1994 & 2007 the tree was left to grow, but since then I have had a tree surgeon carry out branch reduction every 3-4 years on the basis of safety (we have had some big storms).

 

Interested to hear your thoughts on my perhaps naïve/lay view.

[Chris at eden]

Regarding peatff's comment "If the place was built 30 years ago shouldn't the architect have made provision for the conditions allowing for the fact there are trees there and therefore take responsibility for any consequences ? That's why you pay them so much."

 

This point relates to my thinking about 'timeline'. The Ash has a girth of 3.1m which I understand makes it perhaps 150 years old (I may be wildly out on this); my neighbour's property was built in 1985 and mine in 1994.

My thoughts:

1) With a mature tree/root structure in place aren't my neighbour's and their architects bound to make proper provision for a known risk?

2) What could I have done in 1994 (when I bought my property newly built) or any time since, to limit the impact of such a mature tree/root structure?

 

To my simple mind this timeline negates my liability.

I would add that between 1994 & 2007 the tree was left to grow, but since then I have had a tree surgeon carry out branch reduction every 3-4 years on the basis of safety (we have had some big storms).

 

Interested to hear your thoughts on my perhaps naïve/lay view.

 

 

If only it worked like that. The foundations would have been built in accordance with NHBC and building regs from 30years ago. These have changed since and now recommend deeper. So no you can't get away with saying that. Here is the kicker though.

 

Say your neighbour built a really naf conservatory with 100mm foundations. As these are exempt from building regs he could do that. Its his right to build with rubbish foundations if he wishes as long as not covered by building regs. If your tree roots then caused damage you would be liable. Its unlawful to allow anything to escape your boundary and cause damage. This is an established precedent that's been tested many times dating back to Rylands vs Fletcher 1868. This was about flooded mines but the principles are the same which has been accepted in dozens of root damage claims.

 

May not seem fair but those are the facts.

[daltontrees]

1) With a mature tree/root structure in place aren't my neighbour's and their architects bound to make proper provision for a known risk?

2) What could I have done in 1994 (when I bought my property newly built) or any time since, to limit the impact of such a mature tree/root structure?

 

To my simple mind this timeline negates my liability.

I would add that between 1994 & 2007 the tree was left to grow, but since then I have had a tree surgeon carry out branch reduction every 3-4 years on the basis of safety (we have had some big storms).

 

Interested to hear your thoughts on my perhaps naïve/lay view.

 

I have to agree entirely with C@e on this. It might sound counter-intuitive, but it's still your tree that has 'escaped' and has caused damage. These days your neighbour wouldn't get a building warrant for inadequate foundation design. In those days there is probably enough argument to say that it wasn't known that there was foreseeable risk. In between, subsidence risk has become widely known, accepted and designed against. It's a fair question (that C@e seems to have pre-empted and answered) as to whether your neighbour should heed a known risk and optionally design deeper foundations. The answer can only be no.

 

What could you have done in 1994? Not a lot. Bought a crystal ball and seen that foundation design at that time would turn out to be inadequate? Foreseen harm and offered to pay your neighbour to dig deeper or root in root barriers? Cut the tree down? Embarked on a regular (and I mean virtually every year) programe of pruning to stunt the tree? There's nothing you could have done.

 

Rewinding to your original post, at these dimensions the only risk of damage to foundations is subsidence. Pruning for storm breakages is not in context, and unless it is regular and harsh it will not curtail root growth or water uptake. If you are worried, pay an engineer or arb consultant (not a tree surgeon) to assess, including the existence of shrinkable clays. These are more crucial to your situation than the tree is. And there's a horrible twist, removing a tree from shrinkable clays can remove the source of water uptake and cause widespread rehydration of shrinkable clays, causing heave and building damage. With it can come liability too.

[daltontrees]

there's a horrible twist, removing a tree from shrinkable clays can remove the source of water uptake and cause widespread rehydration of shrinkable clays, causing heave and building damage. With it can come liability too.

 

A bit rubbish to quote myself here, but as I made that last comment I felt a little uncomfortable about it firstly as to whether it is correct (I recall a case that suggested it is) and secondly as to whether it is fair.

 

Anyone know the first one or have a view on the second?

[Chris at eden]

A bit rubbish to quote myself here, but as I made that last comment I felt a little uncomfortable about it firstly as to whether it is correct (I recall a case that suggested it is) and secondly as to whether it is fair.

 

Anyone know the first one or have a view on the second?

 

The first one I think is probably Charlton and Charlton vs Northern Structural Services. Not aware of the second but when I did the AA subs course with Biddle I got the impression he was suggesting that you can't be done for heave as its not your tree that causes the damage, its the natural recovery of the soil. Who you gonna claim against, the rain! I asked him about the Charlton case and he hadn't heard of it but when I explained he seemed to think that was about the lack of proper investigations. Makes sense I suppose but I'm not entirely convinced as the issue hasn't really been tested much as PSMD's are extremely rare. What I would think you would be liable for is if you don't identify it as an issue in a mortgage report or subsidence investigation. Would a resident be liable if he felled a tree and the result was heave, I'm not sure. Doesn't seem logical, what if the tree was hazardous? what do you think Jules? for anyone reading don't take this as legal advice as this hasn't been tested adequately in my view. The Charlton case is real but the other comments are just me speculating.

[daltontrees]

Thanks, that's very helpful. I'm going to mull it over for a few hours and reply properly.

[daltontrees]

The first one I think is probably Charlton and Charlton vs Northern Structural Services. Not aware of the second but when I did the AA subs course with Biddle I got the impression he was suggesting that you can't be done for heave as its not your tree that causes the damage, its the natural recovery of the soil. Who you gonna claim against, the rain! I asked him about the Charlton case and he hadn't heard of it but when I explained he seemed to think that was about the lack of proper investigations. Makes sense I suppose but I'm not entirely convinced as the issue hasn't really been tested much as PSMD's are extremely rare. What I would think you would be liable for is if you don't identify it as an issue in a mortgage report or subsidence investigation. Would a resident be liable if he felled a tree and the result was heave, I'm not sure. Doesn't seem logical, what if the tree was hazardous? what do you think Jules? for anyone reading don't take this as legal advice as this hasn't been tested adequately in my view. The Charlton case is real but the other comments are just me speculating.

 

I don't thjink it can have been Charlton v Charlton, I think I had picked up wrong on something in Siddiqui v Hillindon.

 

Therefore I have to apologise, the situation of course has to be that heave caused by the removal of a tree from adjacent land is not actionable. What could be actionable, as you say, is negligent advice from an arb or engineer that someone relied on to remove their own tree and which subsequently caused heave to tehir own building.

 

In brief, heave is only likely if a building was built while the ground was clays that had shrunk because of the water uptake of a tree. Removal of the tree would allow rehydration, causing heave and damage to the building.

 

So it cannot be the case that allowing re-wetting of a neigbour's land couldn't be an actionable nuisance because the neighbour has no legal basis on which to rely upon ongoing dehydration and clay shrinkage. There's still a niggle in my mind, but it relates to exceptional circumstances of unnaturally increasing the volume of water discharged onto a downhill neighbour's land, which is unlawful. I don't think it relates to tree removal.

 

As with your posting, I would urge people not to rely on my postings on Arbtalk but to take independent advice on any issue causing them concern. Personally I hate to get it wrong and always try my best to help and to tidy up after myself, but if you want advice you can sue on if it's wrong, commission and pay for it.