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Watch your tree roots! Khan and another v Harrow Council and another [2013] EWHC 2687 (TCC)

In Khan Ramsey J considered the principles of a claim on the basis of nuisance where damage to a house is caused by tree roots from a neighbouring property.

Relevant questions included:

  1. Whether or not the damage was reasonably foreseeable?
  2. Whether or not the defendant had acted reasonably to prevent the damage?
  3. Whether notice was necessary?
  4. Quantum, including whether a reduction for contributory negligence was appropriate?

The judge’s findings were:

  1. The risk of damage must “occur to the mind of a reasonable man in the position of” the relevant person, in this case, a reasonably prudent landowner who has trees on their property. In this particular case, the damage was reasonably foreseeable despite the fact that the defendant had no actual knowledge of the damage. The evidence relied on to establish what a reasonably prudent landowner would know consisted of expert evidence from arboriculturalists, media articles (on trees causing subsidence damage) and matters of common knowledge. The location of the offending trees (which were very close to the neighbouring property and dominated that side of the property), their size and their condition, meant that a reasonably prudent landowner would be put on notice of the particular risk and would appreciate that there was a real risk of subsidence damage caused by the trees.
  2. The defendant had not acted reasonably to prevent the damage. The cost of removing one offending tree was estimated to be around £700. As the risk of tree root damage could not be described as small, the judge did not consider that a reasonably prudent landowner would think it right to neglect it.
  3. As the damage caused was foreseeable, notice was not necessary to impose liability.
  4. However, as it would have been reasonable for the claimant to have informed the defendant of the risks of damage to their property, the appropriate apportionment for contributory negligence was 15%. In addition to damages for remedial works, the judge also examined the appropriate award for general damages for distress and inconvenience and considered Berent v Family Mosaic Housing [2012] EWCA Civ 961 and Eiles v London Borough of Southwark [2006] EWHC 1411 (TCC) which established the benchmark for such awards. In Eiles there was a figure of £200 per year with an increased sum of £1250 to cover two years when remedial works were carried out.

Philippa Seal / 1st Oct 2013


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