The Problem with Trees-a Landowner's Liability

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.

Nigel Musgrove
Business and Litigation Solicitor
Tel: 0845 003 5639





For free advice on this topic please call us on 0845 003 5639.

This blog is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free telephone consultation to discuss your particular circumstances.

Comments

  • There are no comments for this page - click here to be the first

Need legal advice for your business? We can help

Directors

Directors
Practical advice and legal support for company owners and directors.

Disputes

Disputes
In dispute with a customer or supplier? Get practical advice and support.

Your legal advisor

Your legal advisor
Board level legal advice without the costs of an in-house lawyer.

Speak to a lawyer

Speak to a lawyer
Thank you. Your response is great, very straight to the point! Hopefully this will bring an end to the matter. I will certainly be recommending your services as I am very impressed with the prompt dealing of this matter.
Janet Burbidge

Get legal updates

Enter your email address to receive our monthly Blog Newsletter


We will keep your email safe in accordance with our privacy policy.

Get the FREE definitive guide to solving business disputes

Posts by author

Speak to a lawyer

Get legal updates

Enter your email address to receive our monthly Blog Newsletter
The Law Society
Top