A growing problem
31 January 2012
The issues associated with tree-related subsidence claims can be as deep-rooted and complex as the trees that cause them, says Tom Keya
It’s no wonder that subsidence claims associated with trees are a most unpopular and frustrating area of business for insurers, claimants and, indeed, surveyors alike. Establishing liability can be slow and laborious, with various issues to be considered and actions to be taken even before a claim can be set in motion.
The dimensions of the problem
Subsidence is an increasingly important issue for property owners. Recently, Swiss Re and the Swiss Federal Institute of Technology carried out a study across Europe which found that the number of subsidence claims had risen significantly (in France alone by more than 50% over the past 20 years) and that this trend was likely to continue (especially in the UK, France and Denmark) because of climate change – which would also make the issues more complex.
Underlying most tree-related subsidence claims is a tree or trees with roots extending into a neighbouring property. As the roots absorb water and weather conditions vary, the soil under the property swells and shrinks throughout the year. This movement can cause serious damage, including cracks in buildings on the property. Dealing with the damage can prove significant and costly, particularly if underpinning is required.
A prospective claimant must consider numerous factors before the cause of subsidence, the actual damage resulting directly from it and the appropriate repair option can be established. For example, before subsidence can be attributed to tree roots belonging to a neighbour, the soil must be analysed, the distance of the tree from the damaged property calculated, the quality of foundations and age of buildings assessed, and so on.
Once this burden has been dealt with – and assuming the tree owner has been notified in good time (and there will be serious consequences if not) – there is the problem of deciding what action should be taken to repair the damage: e.g. underpinning the building, felling or reducing the tree, etc.
Most clients (whether insurers, developers or private individuals) become quite agitated over the length of time it takes to establish all of the above. It can be months or even years before a cause is established, and this, in itself, can lead to complications. For insurers, there may be the frustration of clients taking complaints to the ombudsman about the slow progress of claims, while claimants can find themselves unable to comply with the legal doctrine of mitigation: the duty on claimants to minimise losses as early as possible. This is nearly impossible to do while the investigation is going on.
The legal hurdles
Given the practical difficulties of establishing the cause of subsidence, one could be forgiven for thinking the legal aspects would be complex and difficult too. Oddly enough, this is not so, as a review of case law based on the centuries-old doctrine of nuisance in the UK’s highest courts shows. Indeed, once the practical hurdles are removed, the legal position is refreshingly clear and systematic, bar a few factors that are considered below.
Once the danger of subsidence has been noted, the first step to take (apart from instructing a surveyor, lawyer and/or arboriculturalist) is to notify the owner of the tree. A potential defendant must have the chance to abate the damage. This was established in Leakey v National Trust  QB 485. This issue was revisited more recently in Kirk v Brent  EWCA Civ 1701, when the Court of Appeal ruled that indirect or ‘constructive’ notice (in the form of a letter from the loss adjusters) was acceptable, though this might have some impact on the damages awarded. Effectively, this means that refusing a claim on the grounds of no clear, direct notice being given is no longer an acceptable excuse by the defendant.
The next step is to establish the foreseeability of subsidence damage caused by a tree. Here, it is imperative to demonstrate, as far as possible, a direct link between the tree roots and the damage caused. Hence, in Solloway v Hampshire CC  79 LGR 449, the court held that there most be a real risk – not, as it was established in Solloway, an outside chance that the damage was caused by tree roots. For this reason, weather conditions and clay played a key role in establishing the cause of subsidence.
In the case of Delaware v Westminster CC  UKHL 55, the House of Lords found in favour of the claimant, who had incurred £570,000 in costs because the defendant failed to remove (despite being informed and being given time to respond) a mature plane tree that was causing damage to a building. The issues in this and other cases can be summarised in two broad questions: is it reasonable to hold the opposing neighbour responsible? And was the damage foreseeable?
The concept of what is reasonable is often problematic and dealt with on a case-by-case basis. However, a review of recent case law does shed some positive light on what can be expected from the courts.
It appears that, while the courts are eager to keep up the basic principles of notification and foreseeability, they do deal with subsidence in a very practical way, once those requirements are met. In the case of Berent v Family Mosaic Housing  EWHC 1353 (TCC) the court explored the issue of contributory damage by neighbouring trees. Here, the property had already sustained serious damage as a result of tunnelling (Channel Tunnel link works were carried out below the property), but material damage had also been caused by the neighbouring tree. The court held that, even though the predominant damage was caused by other factors, the encroachment of the tree roots was sufficient to warrant an award of damages to the claimant.
Noteworthy here is that one of the defendants had earlier accepted that the tree in question should be felled, but had not acted on this as quickly as the situation demanded.
Images © Barrell Tree Consultancy
One other factor to consider in cases exploring reasonableness is the problem of Tree Preservation Orders (TPOs). TPOs can be made by local authorities under the Town and Country Planning Act 1990 to control felling and damage to trees. Again, legislation and case law appear to be refreshingly practical about such orders. Firstly, Section 198(6) of the 1990 Act states that TPOs do not apply:
- to the cutting down, uprooting, topping or lopping of trees that are dying or dead, or have become dangerous
- to the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by or under an Act of Parliament, or so far as may be necessary for the prevention or abatement of a nuisance.
This appears to limit the power of TPOs in relation to dangerous or nuisance trees. There are, however, limitations to how liberally this exception can be applied. In the case of Perrin v Northampton BC  EWCA Vic 1353, the Court of Appeal held that the wording of subsection (b) specifies that cutting down, topping, etc, of the tree is permissible only if it is necessary for the abatement of the nuisance. In the presence of alternative methods, such drastic action would not be permitted.
Matters to consider
By its very nature, then, subsidence is no simple matter, but taking certain steps can – at least – make the legal process as smooth as possible.
For large developers, home owners and local authorities who are claimants:
- It is important to monitor all properties regularly to ensure that there is no risk of subsidence.
- If subsidence is noted, it is critical to take action immediately and notify the parties involved, especially your insurer, surveyor and lawyer.
- It is also important to monitor the damage and, if possible, to take steps to control it while an appropriate claim is made and investigations are ongoing.
- In complying with the above, provide full details to the insurer, including reports (subject to legal advice), and assist in any way possible. This will prevent unnecessary delays.
- If the other side does not accept responsibility, instruct your lawyer, who will advise, based on expert reports, whether you should issue proceedings to recover damages and costs.
For anyone on the receiving end of a claim
- Instruct an independent surveyor to assess the situation and seek advice from a lawyer.
- If the result is detrimental, take appropriate action without delay.
- If the result is in your favour, discuss it with the claimant. If the claimant has contrary results from a professional survey, it may be that a third surveyor should be instructed.
- If agreement cannot be reached, take legal advice on how to take the matter forward.
For all property owners:
- When buying a property that might be encroached upon by nearby trees, discuss the impact of the trees with your surveyor or raise it with the seller. Remember, it is rare for lawyers to visit the site you are buying, so, if you are to have anything legally binding between yourself and the seller, you must notify your lawyers of any concerns.
- If you own a property with trees on it, monitor root development and ensure that it does not encroach on neighbouring land. If there is a risk, take action immediately. You might need to seek the permission of neighbours to enter their properties, but if you alert them to the risk of damage, you should be able to reach agreement on access.
- If your property has trees on it or nearby, make sure you have insurance to cover any substantial claims. It might be useful to run your policy by an independent financial adviser, surveyor or lawyer before you sign up to it.
If you take the precautionary measures above, you will have anticipated the worst of the complexities and costs involved in subsidence cases, even before the legal process starts.
Tom Keya is a Solicitor in the Construction and Litigation Department at Devonshires
- Trees and structural damage: information note based on BTC/RICS presentations 2010. Download from www.barrelltreecare.co.uk/resources.php
- The new RICS guidance note Subsidence in relation to insurance claims was published in September, providing information on initial diagnosis, investigation, soil types, mitigation, causes of subsidence, heave and landslip, policy cover and recoveries and contribution
- Related competencies include: T001, T05, T061