Council to pay £150k+ for damage to property caused by tree 30m away

The High Court has ordered a local authority to pay more than £150,000 for damage to a house caused by a tree in one of the council’s parks.

The nearest poplar in the case of Robbins v London Borough of Bexley [2012] EWHC 2257 (TCC) was at least 30 metres away from the rear of the house.

The poplars had been planted at some stage between 1935 and 1945. The house was built in Radnor Avenue about 1935 and bought by the claimant in 1969.

The claimant first noticed damage in 2003, with cracks in two of her walls. She notified her insurers and surveyors came to inspect the property and investigate the soil conditions.

The cracking became worse in 2005 but further significant damage did not occur until the summer of 2006, when some of the cracks became about 25mm wide. A programme of crack and level monitoring was then undertaken.

In 2006, the claimant removed a magnolia that was about two metres away from her single-storey rear extension. Later in the year, some of the poplars in nearby Danson Park were severely pruned.

In the summer of 2007 the movement of the rear extension was much reduced. The claimant submitted that this was because of the severe pruning.

The experts in the case, both engineering and arboricultural, agreed that the cracking and movement to the rear of the claimant’s property was the result of seasonal volume changes in the subsoil caused by the extraction of moisture by vegetation.

The principal issue in the case was which vegetation had caused this to happen.

Bexley Council denied that any of the poplars had caused the damage. Alternatively, if such a tree had caused the damage, it argued that it was only under a duty to act reasonably in the light of a reasonably foreseeable risk.

The local authority pointed out that only one poplar root had been positively identified in the garden of the property and no property roots were found under the foundations when the remedial work was carried out. It said that in the circumstances of the case it was not obliged to do anything.

Mr Justice Edwards-Stuart found in favour of the claimant, saying that the council should have taken a decision to prune the poplars much earlier (in 1998).

The judge said Bexley had been on notice by early that year at the latest that roots from the poplars in Danson Park had been found at distances of 33m or more from the trees and were alleged to have caused damage.

The owners of at least four properties had made claims in respect of root-induced subsidence.

Mr Justice Edwards-Stuart said: “I cannot see how it can be seriously disputed that by early 1998 it was reasonably foreseeable that the roots from any one of these mature poplars in Danson Park could extend to distances of up to 35m from the tree and cause shrinkage of the clay subsoil.

“It was also reasonably foreseeable that if those roots found their way under relatively shallow foundations, such as those often used when building extensions in the 1960s and 1970s, subsidence might well occur.”

The judge therefore ruled that it was reasonably foreseeable by Bexley that any house in the road with an extension that was within 35m of one of the poplars “was at a real risk from subsidence caused by the roots of one or more of the poplars extracting moisture from the clay soil below the foundations”.

He concluded that one particular poplar was the major contributor to the removal of moisture from the clay beneath the foundations of the house during 2006. The judge added that another tree also made a material contribution.

Mr Justice Edwards-Stuart concluded that the explanation for the very significantly reduced movement in 2007 was a combination of the severe crown reduction of the poplars in 2006 as well as the much higher rainfall in 2007.

He ordered the council to pay the agreed damages of £147,081.48 as well as £3,000 by way of general damages for distress and inconvenience.

The judge kept his judgment in draft while waiting for the Court of Appeal’s decision in Berent v Family Mosiac Housing & Anor [2012] EWCA Civ 961. However, having read that judgment, he decided that there were no reasons to reconsider his conclusions.