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Domestic tree owners defending tree root subsidence claims commonly argue that they are not liable because the damage was not reasonably foreseeable to them – i.e. they were unaware of the risks that their trees posed and they could not have foreseen that their trees would cause subsidence damage to a neighbouring property.

Nuisance neighbours

However, this argument will not necessarily provide a defendant with a successful defence, as seen in the recent case of Khan and Khan v Harrow Council and Sheila Kane [2013] . In this case, the defendant, Mrs Kane, was held liable in nuisance for some of the claimants’ loss, after her hedge caused subsidence damage to the claimants’ neighbouring property. The court found that the risk of damage to the claimants’ property was foreseeable to Mrs Kane, even though she did not actually know that her hedge presented a real risk of damage to the claimants’ property.

The judgment, while favourable for prospective claimants, should not necessarily send homeowners (or their insurers) into a state of panic. This case reiterates the principle that a person would only have to eliminate (or minimise) a risk when the circumstances were such that a reasonable person would have thought it right to do so.

Therefore, Mrs Kane’s lack of actual knowledge did not present her with a successful defence because the court found that a reasonably prudent landowner would have known that the hedge presented a real risk of causing damage – and the risk was not a mere possibility. However, in another situation, it may be reasonable not to take any action to eliminate or minimise a risk. This would be a situation where a risk is unlikely to come about or the consequence would be minimal if it materialised.

Breach of duty

The court also said that the hedge was not an attractive feature and its removal presented no difficulty or disadvantage to Mrs Kane, after accepting that removing the hedge would have cost in the region of £700-£800 (the court seemed to consider that this was not a significant expense in the circumstances). Accordingly, the court considered that Mrs Kane ought to have eliminated the risk that the hedge presented before it caused damage and she was, therefore, in breach of duty by failing to take appropriate steps to eliminate that risk.

It would appear that property owners have been warned that they are expected to:

  • Pay close attention to their trees’ particular features, such as position, height, condition and proximity to a neighbouring property;
  • Consider the degree of risk of damage that their trees might pose to neighbouring properties and the seriousness of the consequences. In some situations, it may be prudent to obtain advice from an arboriculturalist, which might save a property owner time and money in the long run. It should also make it easier for property owners to show that they acted reasonably, if they have relied and acted upon expert advice;
  • Consider the social utility of the trees and balance this against whether there is a need to prune the trees or remove them, in order to eliminate or minimise the risk that they might pose to neighbouring properties, again consulting a tree expert where necessary;
  • Consider the cost and practicality of preventative measures.

For more information on the tree root subsidence issues raised in this article or on neighbour disputes in general, contact our Civil Litigation team or call us on 0117 904 6000.