Posted: Tuesday, 26 August 2014 @ 15:57
The problem with trees-a landowner’s liability
Two recent cases have highlighted the extent of a landowner’s liability where trees growing on their land have damaged a neighbour’s property.
In 2013 a court decided in favour of the landowner where Stagecoach South Western sued her for damage caused to their railway track and a passing train when a branch came crashing down in a storm.
The tree concerned was a 150 year old Elm. The landowner was a keen gardener and had visually inspected the tree on a regular basis, but had not cut back the overgrown ivy which would have revealed rot at the heart of the tree. However, the judge decided that she had done enough. She had carried out appropriate checks and there was nothing obvious to alert her to a problem. Consequently she did not have to engage an arboriculturalist, nor did she have to clear away debris and carry out a close visual inspection.
All that was required of a reasonable landowner was to perform regular checks, and if those checks would not have alerted a reasonable landowner to obvious signs of decay, there was no breach of the duty of care to neighbouring landowners.
A similar duty of care applies to tree and shrub roots. Tree roots can extend some 2 to 3 times beyond the spread of branches, and the roots are usually within the upper 18” to 24” of soil. Although physical damage by roots is possible, for example exploiting weaknesses in old drains, most of the damage which they can cause relates to the specific soil type and shrinkage due to water extraction. This can lead to subsidence, or at least aggravate the situation. Clay soils at a time of draught are a particular problem.
In a case last year of Khan v Harrow Council, the judge found that the defendant was not in fact aware of the problem, but that was of no help to her in her main defence. The judge found that the test was objective, namely would the problem in question have been reasonably foreseeable to a reasonable person in the defendant’s position? He found that it should have been obvious due to the proximity of the bushes concerned to the Claimants’ building.
The test is would it be foreseeable to a “reasonably prudent landowner”, much as in the case of the falling tree mentioned above. Ignorance was no excuse.
The moral is that a landowner should carry out their duty of care by regularly inspecting trees and shrubs growing within their boundaries, particularly where they are close to the boundary, and if they have any concerns they should call in an expert arboriculturalist.
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