UK: Seeing The Wood For The Trees

The Court of Appeal confirms that when assessing whether there is a 'real risk' of tree related subsidence damage, one must consider whether the relevant trees present a risk, the nature and extent of which imposed upon the owner a duty to take preventative or remedial action over and above any regime of tree management already in place.

The Court of Appeal on Friday 13 July 2012 handed down its judgment in the matter of Berent v Family Mosaic Housing and London Borough of Islington [2012] EWCA Civ 961, and dismissed the Claimant's appeal.

The claim was advanced on the misapprehension that mere proximity of trees to a building equated to a reasonably foreseeable risk of damage. Both the trial judge and now the Court of Appeal found that there was no 'real risk' of reasonably foreseeable damage from the adjoining trees.

The Trial Judge, His Honour Judge Wilcox sitting at the Technology and Construction Court, dismissed the claim finding that prior to damage occurring to the Claimant's property, neither Defendant could have appreciated that there was a 'real risk' that their trees would cause damage. The Claimant's interpretation of the test of 'reasonable foreseeability' in that where a building is within influencing distance of a tree there was a risk of damage, lead the trial judge to say obiter that:

"[Islington] mindful of its obligation under Town and Country Planning Acts and the preservation of such amenities as a treed environment could not reasonably contemplate the desertification of such a neighbourhood by wholesale tree felling to avoid the risk of damage. Such an approach it seems commended by the Claimant almost gives rise to strict liability" [emphasis added].

The obstacles to the Claimant succeeding on her appeal, required her to show either (i) that the trial judge was wrong to find that Islington had in place a prudent regime of pruning or (ii) that Islington should have had a cyclical pruning policy thereby showing an alternative to wholesale removal or the 'desertification' the trial judge referred to. Had she overcome those hurdles, she would still have needed to persuade the Court of Appeal that the judge's findings on causation were incorrect.

The Claimant had pleaded that the Defendants had failed to 'pollard, crown or otherwise manage or control the growth' of the implicated trees. However, the evidence of her arboricultural expert, Mr Kelly (the co-author of a paper entitled "Tree related subsidence: Pruning is not the Answer"), as found by Lord Justice Tomlimson, "did not support the Claimant's pleaded case insofar as that alleged a failure properly to manage trees by pruning prior" [to the damage occurring]. The expert arboricultural

evidence had not identified the implicated trees as posing a greater risk than others, or that they should have been subjected to a regime other than the one adopted, or indeed that pruning would have eliminated or minimised the risk in any event.

The Court of Appeal reiterated that a balance needed to be struck when assessing the reasonably foreseeable 'real risk' of damage and the inter-related enquiry of what it is reasonable to do in light of that risk. Ultimately, it may be reasonable to take no steps to eliminate an unlikely risk.

The Court of Appeal again highlighted that a further factor to be balanced in this process is the 'social utility' of the act which leads to the risk. Had the Claimant been correct, and that trees which were merely proximate rather than 'a real risk' needed to be felled, this would be to ignore the social and amenity value of trees.

What can be taken from this decision?

In this matter the Claimant's property is situated on a road in which there are 276 trees and approximately 300 properties. The properties are of a similar age and similar distance from the trees and given the age of the properties, it was likely that the properties had shallow foundations. The difficulty for Islington was to assess which of the properties was likely to be damaged and whether there was 'a real risk' of damage being causes to a particular property by a particular tree.

The decision is of considerable importance to local authorities and housing associations managing their tree stocks. It confirms that simple proximity of a tree to a building does not elevate the risk of damage from being a potential to 'a real risk' of damage. An assessment needs to be made as to whether there is a 'real risk'. Factors that should be considered include whether there have been previous claims in the vicinity and any other factor that might mean that a tree poses 'a real risk'. The importance of frequent and severe pruning of trees identified as 'a real risk', prior to damage occurring, is again highlighted. However, where the reasonably foreseeable risk of damage is small, it is reasonable to match a pruning regime to the risk, and in some possible scenarios, not to maintain at all. The social benefit of 'a treed' environment was highlighted, in that it would not be reasonable to fell all trees that pose a risk (but not 'a real risk') to eliminate or minimise that risk.

Tree owners are advised to assess their stock and focus works on the trees assessed as posing 'a real risk'.

Kal Sandhu of Clyde & Co acted on behalf of Islington in both the trial and the appeal. He was instructed by Zurich Municipal, who supported Islington's stance that the risk of damage was not reasonably foreseeable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions