|
|
Trees
Damages - tree roots
Where there is a continuing nuisance, which a defendant knows about or ought to know about, the claimant is entitled to the reasonable costs of eliminating the nuisance if he has given notice of the problem to the defendant and a reasonable opportunity to deal with it.
The council refused to remove a mature plane tree that was causing damage to a building. The claimant therefore spent over £570,000 carrying out underpinning works and claimed the cost from the council. The HL held the council liable for that sum. The claimant was not merely entitled to damages for the damage to the property that had occurred during its period of ownership. If the tree had been removed the need to underpin would have been avoided and the total cost of repair to the building would have been only about £14,000!
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] 3 WLR 1007. (House of Lords).
Article: Tree root subsidence after Delaware Mansions by Gordon Wignall (Solicitors Journal, 14 December 2001, p1148). This article provides a practical guide to such cases after the HL decision in Delaware.
Tree root encroachment - damages claim - need to give notice?
To establish a cause of action for damages it is not necessary to show that notice has been given before works are undertaken to remedy damage caused by nuisance.
C carried out underpinning work, at its own (substantial) expense 1999, to remedy subsidence allegedly caused by the encroachment of tree roots for which the council was responsible. No complaint was made to the council at that time. The council was not expressly notified of this until 2003. When further damage occurred in later years C made a claim against the council, which argued that the failure to notify the council of the problem in 1999 made it a knock-out point which makes it plain that the claim in respect of No 42 could not succeed at trial. The judge struck out the claim because of the lack of notice. However on appeal the CA said that this was wrong and the matter should go to trial. Pill LJ:I do not accept the proposition advanced by Mr Makey, in seeking to uphold the striking out of the action by the judge, that, as a matter of law, where nuisance is created by tree roots there is no liability for resulting damage, unless and until damage has been notified to the tortfeasor. In my judgment, that proposition does not emerge from [Delaware Mansions v Westminster City Council [2001] UKHL 55]. Thereafter, what can be recovered by an injured landowner is a different question, and it was that question which was considered in Delaware. (para 37) Kirk v Brent London Borough Council [2005] EWCA Civ 1701
Tree roots - sufficient degree of control
Hampshire County Council owned the land upon which the offending trees stood. However, the defendants, Portsmouth CC, maintained it under an agency agreement that included the routine maintenance of the trees. They failed to maintain the trees, which led to soil desiccation, which led to damage to Cs property. Held: The defendants had a sufficient degree of control over the hazard causing the nuisance, even though they did not own or occupy the land, to make them liable for the nuisance.
LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723; [2003] 15 EG 139.
Self-help
Article: "Landlord left up a tree" by John Murdoch commenting on a case where a landowner exercised its right of self-help in respect of a neighbouring tree that had fallen on to its land. (Estates Gazette, 16 February 2001, p119).
Back to top
|
|
|