Trees damage to property and claims in negligence.
In Berent v Family Mosaic Housing & Anor [2012] EWCA Civ 96 the Claimant owned a flat in Islington. The first Defendant, Family Mosaic, owned a neighbouring property. Within that property stood a tree which was subject to a Tree Preservation Order imposed by Islington Borough Council. Islington was responsible for maintaining two trees in the front of the Claimant’s property.
It was the claim of Berent that the trees of both Defendants caused subsidence damage to the property. Most of the damage had been done by the spring of 2004. Islington were not notified until April 2009. Both Defendants gave notice of intention to remove the trees in February 2011.
The issue before the court was whether or not the damage caused by the trees was reasonably foreseeable by the Defendants.
The court held that the Local Authority
- “could not reasonably contemplate the desertification of such a neighbourhood by wholesale tree felling to avoid a possible risk of damage.”
He found that there was no basis for supposing it knew or ought to have known it was a real risk that the trees would cause damage until they were notified by April 2010 amounted to a breach of that duty.
The majority of damage had been caused to the property prior to that date, and therefore, it wasn’t responsible for any damage caused to the property. Any damage caused after April 2010 was so small. Any claim against the Defendants would only be for loss and amenity and gross inconvenience from April 2010 onwards, which again was only going to be a small sum.
It means that a local authority is not going to be responsible in most cases until it is notified. A sensible decision. How would they able to check all trees in their respective areas. The court will not expect it to predict which properties are going to suffer subsidence from any trees that they are responsible for.
The best thing to do is, as soon as you notice any damage caused by trees contact the local authority immediately with any evidence. That way there will be no problem about claiming for damage caused.
The mistake in this case was for the Claimants to delay in notification for a period of 6 years which meant that the subsidence damage caused by the trees was not recoverable.