Case ref: GA Berent v (1) Family Mosaic Housing (2) Islington LBC [2011] EWHC 1353 (TCC)
In the above case, the court held that the local authority was not liable for the subsidence caused by roots of one of its trees as they were not aware (and should not have been aware) that there was a ‘real risk’ that their tree would cause damage to the specific property in question.
This case could thus make it potentially more difficult for claimants to establish their claim in either nuisance or negligence. It could thus be interpreted as a step forward in favour of local authorities and public landlords including housing associations.
In this particular case, the claimant owned a property, a residential flat, in Islington. The property next door was owned by the first defendant, a housing association – Family Mosaic housing – in which there was a tree protected by a tree preservation order (TPO) imposed by the second defendant Islington LBC (Islington). Islington was also responsible for two more trees at the front of the property.
It was alleged by the claimant that the trees of both sets of defendants were the cause of subsidence damage to her property, but in order to obtain whether the defendants were liable or not, the court had to establish whether the damage was ‘reasonably foreseeable’.
Islington argued that damage to the claimant’s property was not foreseeable given its regular tree maintenance regime. Bearing in mind the question of whether a particular property subsided depended upon many factors, including the depth of the foundations, it was not possible to foresee that subsidence would occur to a particular property.
Arboriculturalists acting for both parties agreed that it was not possible to predict which trees would cause damage to buildings. The only way to neutralise the risk, therefore, would be to remove the trees and create a bland, sparse street with no greenery.
The judge held that a responsible local authority in such an area: “… could not reasonably contemplate the desertification of such a neighbourhood by wholesale tree felling to avoid a possible risk of damage.â€
He found that there was no basis for supposing that Islington knew, or ought to have known, that there was a ‘real risk’ that the trees would cause damage to the claimant’s property until March 2010 when they were informed of the damage (six years after its first occurrence). Failure to remove the trees by between March and April 2010 therefore amounted to the only breach of duty.
This implies that in the event of tree damage, the tree owner should be notified immediately and in writing.
Consequently, Islington was not liable for the cost of repair, only for loss of amenity and gross inconvenience from April 2010 onwards – a relatively small sum.
This case is the first of its kind to recognise that, given that it is not possible to predict which properties will suffer subsidence (if any), the damage to a particular property is not foreseeable unless the local authority knew, or ought to have known, that there was a ‘real risk’ of damage to the property in question.
In this case, the local authority did not know, and should not have known, that the property was at risk and so was only liable for the period after they were informed by the claimant. It forms a strong precedent for the future and could benefit local authorities in protecting them from extensive liability in instances of subsidence.
A full précis of the case and its implications is available on this link.
If you fear your property might be suffering from subsidence, instruct a surveyor to take a look and offer you professional advice. Subsidence can cause serious structural issues and should be diagnosed as early as possible. Find a surveyor here.
06-12-11
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