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.

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