Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff’s house there were pockets of clay. An issue arose as to the foreseeability of there being pockets of clay in the gravel upon which the damaged houses predominantly sat. Another issue concerned the question whether any operation on the trees, short of felling them, would have eliminated the risk posed by the roots if there were exceptionally dry weather and if those roots were passing through clay. At first instance, judgment was given for the plaintiffs in nuisance.
Held: The council’s appeal succeeded. The judge had been wrong to hold that damage to the plaintiff’s house from the tree roots was a reasonably foreseeable risk. The existence of clay pockets under a house such that of the plaintiff was no more than an outside chance, and balancing that risk with the steps that would have been necessary for the defendants to have dealt with the risk, there was no breach of duty on the part of the defendant council.
Dunne LJ said: ‘The duty in respect of the nuisance arises if the encroachment of the roots is known, or ought to be known, to the owner, occupier or other person responsible for the tree and its maintenance, if the encroachment is such as to give rise to a reasonably foreseeable risk that such encroachment will cause damage.’
Sir David Cairns said: ‘To say that a risk of damage is reasonably foreseeable means that it is foreseeable, not merely as a theoretical possibility but as something, the chance of which occurring, is such that a reasonable man would consider it necessary to take account of it. The risk of being struck by lightning when one goes for a walk is not a reasonably foreseeable risk. I should be prepared to hold that the risk in this case was not a reasonably foreseeable risk. If, however, it could be said to be a reasonably foreseeable risk, I am satisfied that it was a risk, such that the cost and inconvenience of taking any effective steps to remove it or reduce it would be quite out of proportion to that risk. There is nothing in the evidence to show that No. 72 Shirley Avenue was any more at risk than any other house in the Avenue. Nor is there anything to show that any operation on the trees, short of felling, would have made the roots safe if there were exceptionally dry weather and if the roots of any particular tree were passing through clay’.
Dunne LJ, Sir David Cairns
(1981) 79 LGR 449, [1981] 1 WLR 1
England and Wales
Citing:
Cited – Solloway v Hampshire County Council CA 1981
Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff’s house there were pockets of clay. An issue arose as . .
Cited by:
Cited – Kirk and others v London Borough of Brent CA 8-Dec-2005
The defendant council had obtained a strike out of the claimant’s assertion that they were responsible in nuisance for damages caused by tree roots.
Held: The claimant’s appeal against the striking out of his claim succeeded. While the simple . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Berent v Family Mosaic Housing and Others TCC 25-May-2011
The claimant sought damages for subsidence to her property allegedly caused by the roots of trees on the defendants’ properties. Two large plane trees stood in the pavement outside the house and about 12 metres from it. . .
Cited – LE Jones (Insurance Brokers) Ltd v Portsmouth City Council CA 7-Nov-2002
The Council appealed against a finding that it was liable for damage to the claimant’s property caused by the roots of trees on the highway maintained by the appellant. The Council asked whether it was the correct defendant having acted as agent for . .
Cited – Solloway v Hampshire County Council CA 1981
Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff’s house there were pockets of clay. An issue arose as . .
Cited – Robbins v London Borough of Bexley CA 17-Oct-2013
robbins_bexleyCA1013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
Cited – Hurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.241665 br>