Limitation and other arguments in subsidence claims

Claimants wishing to pursue claims relating to subsidence, including property damage caused by tree roots, have the usual burden of proving their case.

In addition, such claimants must ensure that they do not fall foul of limitation under Section 2 of the Limitation Act 1980.

These and other issues were considered by the Court in the case of RS v Vale of Glamorgan Council, in which Dolmans represented the Defendant Local Authority.

Background

The Claimant, being a Litigant in Person, owned a property adjacent to the Defendant Local Authority’s adopted footway. The Claimant had lived in the said property since 1982. A large tree had been planted in the footway many years previously. The Claimant alleged that the said tree had a substantial root system which encroached under the Claimant’s property, causing subsidence and cracks to a garden/boundary wall and threshold slab under a garden gate. As a result, the Claimant alleged that the garden gate could not be closed. There was also allegedly damage caused to the paving slabs on the adopted footway.

Preliminary issues

The Claimant issued Court proceedings online, but failed to file and serve Particulars of Claim signed / verified by an appropriate Statement of Truth, contrary to CPR 22.1(1)(a). An Acknowledgment of Service disputing jurisdiction was, therefore, filed on behalf of the Defendant Local Authority and an Application issued to strike out the Claimant’s claim in accordance with CPR 22.2(2). The matter was transferred offline.

The Claimant averred that it was an oversight not to have signed / verified the Particulars of Claim with an appropriate Statement of Truth. Given the likelihood that the Court would give such a Litigant in Person the benefit of doubt in the interests of justice, it was agreed to consent to a Court Order that the Claimant be granted permission to rely upon an appropriately signed / verified Particulars of Claim. However, the matter was to be transferred to a local court for allocation and the Claimant was to pay the Defendant Local Authority’s costs of the Application.

Claimant’s claim

The Claimant’s Particulars of Claim, as subsequently verified by an appropriate Statement of Truth, confirmed that the Claimant was claiming:

(1) An Order for removal of the tree to prevent the continuation of the alleged nuisance to the Claimant’s property.

(2) An Order requiring the Defendant Local Authority to undertake works to repair the damaged wall and gate, or payment of damages to cover the cost of such works, which were estimated not to exceed £5,000.00.

(3) Further or other relief.

(4) Interest.

Claimant’s evidence

In addition to a Witness Statement by the Claimant, various photographs, Google images and a letter / report from a subsidence specialist were adduced and exhibited to the Claimant’s Particulars of Claim.

The said subsidence specialist was instructed by the Claimant before Court proceedings were issued and concluded that damage to the garden / boundary wall had not been caused by subsidence but by the mechanical uplift of the wall due to gradual, physical growth of the alleged tree roots. The content of the said letter / report was not admitted.

In any event, the Claimant did not have permission in the Court directions to rely upon any expert evidence and the subsidence specialist’s letter / report was not compliant with Part 35 of the CPR.

Defence, tactics and evidence

It was recommended that the tree be cut down, which it was before the Defendant Local Authority’s Defence was filed and served. As such, it was argued within the Defence that the Claimant’s claim for an Order requiring removal of the said tree was redundant and should no longer proceed.

With regards to the Claimant’s claim for damages, a number of interesting arguments relating mainly to the Limitation Act 1980 were pleaded on behalf of the Defendant Local Authority within the Defence.

A detailed Witness Statement was obtained from a member of the Defendant Local Authority’s arboricultural team, who also gave oral evidence at trial / the small claims hearing in this matter. This witness confirmed that the relevant tree had been cut down and, by reference to various Google Street View images, was able to adduce evidence that the alleged damage was present from at least October 2008. The said witness also attended the relevant location prior to making his Witness Statement and reiterated that there had been no deterioration in the alleged damage since at least October 2008, when the earliest relevant Google Street View image was taken. In addition, the Defendant Local Authority’s witness was able to confirm that there had been no further root growth after the relevant tree had been cut down and that the remaining tree stump would be removed in due course.

Limitation Act 1980

It was argued within the Defence that in accordance with Section 2 of the Limitation Act 1980, an action founded on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.

It was accepted that in a claim for a continuing nuisance, the cause of action accrues fresh each day that the nuisance continues. However, it was argued that compensation can only be recovered for damage that arose within the relevant limitation period prior to the issuing of Court proceedings. This is because the cause of action in relation to specific damage accrues on the date it is caused.

The claim was issued on 10 December 2024. The relevant limitation period for the Claimant’s claim for damages, therefore, began on 11 December 2018.

In his letter / report dated October 2022, the Claimant’s subsidence specialist described the damage to the Claimant’s garden / boundary wall as being longstanding.

The Defendant Local Authority had undertaken a thorough examination of relevant Google Street View images of the Claimant’s property prior to Court proceedings being issued, from which it was apparent at that time that the alleged damage was present and clearly visible as early as June 2011, and upon further consideration as early as October 2008 as referred to above. These Google Street View images were specifically referred to within the Defence and copies annexed to the same. In any event, it was clear from these various Google Street View images that the alleged damage was caused prior to 11 December 2018 and, therefore, more than 6 years prior to Court proceedings being issued.

It was argued that the Claimant, who had lived at the relevant property since 1982, ought to have been aware of the existence of the said damage at the time that the same arose. As such, it was also argued that the Claimant’s claim for damages was statute barred pursuant to Section 2 of the Limitation Act 1980 and was denied in its entirety.

There had been significant correspondence between the Claimant and the Defendant Local Authority prior to Court proceedings being issued and the Claimant was advised by the Defendant Local Authority that his claim was out of time within this pre-action correspondence.

It was admitted that up until the time that the relevant tree was cut down on 29 January 2025, the Claimant had a cause of action against the Defendant Local Authority arising from the continuing nuisance caused by the encroachment of the tree’s roots underneath the boundary of the Claimant’s property, the extent of which was not admitted. In any event, it was reiterated that the tree had been cut down and the element of the Claimant’s claim seeking an Order for removal of the same was redundant.

It was further admitted that if the encroachment of the said tree’s roots into the Claimant’s property caused the alleged damage, which was not admitted, then the Claimant would have had a cause of action against the Defendant Local Authority in nuisance if the claim had been brought within 6 years of the damage being caused. This period would have started in July 2015 at the very latest, but was likely to have been significantly earlier. The extent of any damage caused by the said encroachment was not admitted and the Claimant was required to prove the same.

Judgment

The Trial Judge expressed concern at the Claimant’s lack of proper expert evidence, having noted that the Claimant did not have permission to rely upon the subsidence specialist’s letter / report and that the same was not compliant with Part 35 of the CPR in any event. The Trial Judge also noted that the Defence had not admitted causation of the alleged damage and put the Claimant to proof of the same.

The Trial Judge accepted the argument that whilst the cause of action for a continuing nuisance accrued fresh every day, the limitation period for the claim for damages started on 11 December 2018. He also agreed that the nuisance element of the claim had been satisfied by the felling / abatement of the tree.

The Trial Judge held that the Claimant would struggle to discharge the burden of proving causation without proper expert evidence and that the Claimant could not prove that the alleged damage was caused within the relevant limitation period.

Under cross-examination, the Claimant had provided new oral evidence relating to previous subsidence and the longstanding leaning of the garden / boundary wall that gave potential alternative explanations for the alleged damage.

Whilst the Trial Judge accepted that, based upon the Claimant’s own evidence, the alleged damage had become worse during the limitation period, he could not be satisfied that this damage was caused by the tree roots.

Even if he was wrong regarding the above, the Trial Judge accepted the Defendant Local Authority’s submission that it was impossible for the Court to quantify the claim for repairs based upon the evidence provided by the Claimant.

The Claimant’s claim was, therefore, dismissed and although there was no order as to costs given that this was a Small Claims Track matter, the Order for the Claimant to pay the Defendant Local Authority’s costs of the earlier Application stood and such costs were subsequently paid by the Claimant accordingly.

Comment

Although this matter had been allocated to the Small Claims Track, it was apparent that the Trial Judge had to consider several detailed arguments before reaching his decision.

The Trial Judge was clearly assisted by the Defendant Local Authority’s witness evidence and particularly the various Google Street View images which emphasised the Defendant Local Authority’s limitation arguments.

The Defendant Local Authority had maintained a robust denial since receiving notification of the Claimant’s claim and this was bolstered by the post-issue pleaded Defence and detailed witness evidence, eventually leading to dismissal of the Claimant’s claim in the said matter.

Tom Danter is an Associate at Dolmans Solicitors.