District Judge Margaret Langley assesses the legal implications of repairing damage caused by tree roots

Plane trees are a pleasant and welcome sight in city streets but their roots can encroach on to neighbouring properties and cause damage.


Who is then liable, and to what extent? Is notice required before a successful claim, in nuisance/ trespass, for the cost of the repairing works can be brought? What if the freeholder of the affected property sells it after the damage but before the repairing works and does not specifically assign the cause of action to the new owner? Can the new owner take proceedings after the repairs have been carried out?


The House of Lords answered many of these questions in Delaware Mansions v City of Westminster [2001] UKHL 55, [2002] 1 AC 321, where the judges considered the history of the reported decisions on the subject of damages for root encroachment.


The Church Commissioners owned the freehold to Delaware Mansions, a block of flats sold on long leases. A plane tree, which stood outside some of the flats and had probably been planted at about the same time as the flats were built, was owned by Westminster. It was almost as tall as the five-storey block of flats. All trees in Westminster are inspected regularly and pruned by contractors.


In 1989, the commissioners started to receive complaints of cracking from some leaseholders and commissioned a report from structural engineers, who concluded in March 1990 that the cause was the tree roots and recommended removal of the tree or, if that was not possible, underpinning. The commissioners then sold the freehold reversion in June 1990 to Flecksun, a wholly owned subsidiary of Delaware Mansions. Flecksun commissioned a more detailed report that concluded the worst cracking had resulted from damage to the foundations by the roots. Also, there had been a drought in 1989 and the trial judge found that all or almost all of the structural damage had occurred as a result of this drought no later than March 1990. If any later cracking occurred, he found that it was as a result of the then existing damage.


Westminster was first given notice in August 1990 when it was sent the March 1990 report. At a site meeting in January 1991, it was agreed that Westminster would carry out root pruning and the claimants decided to undertake underpinning. During this, tree roots were found beneath the foundations which caused Delaware to insert piles rather than underpinning at a total cost of £570,734.98, including the cost of alternative accommodation for some leaseholders while the works were carried out.


The trial judge held that only the commissioners could sue for the original damage, subject to limitation issues, and Flecksun could only sue for any fresh damage. The Court of Appeal reversed this and held, applying Hunter v Canary Wharf Ltd [1997] AC 655, that Flecksun could seek to recover the cost of all the remedial work, on the basis that there was a continuing nuisance.


Lord Cooke said at paragraph 34 of his speech that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. However, he was satisfied that Westminster had received ample notice before the underpinning and piling and was liable. Having regard to the proximity of the tree to Delaware Mansions, a real risk of damage to the land was foreseeable. Lord Cooke summed up the law as: 'Where there is a continuing nuisance of which the defendant knew or ought reasonably to have known, reasonable remedial expenditure may be recovered by the owner who has to incur it. In the present case, this is Flecksun.'


Judge Dean QC in Kirk v London Borough of Brent on 6 December 2004 had to consider six claimants and two trees. The first three claimants claimed their property (No 42) had been damaged by tree 1 and relied on the notice given by the second three claimants whose adjoining property (No 44) had been damaged by tree 2. The defendant council sought summary judgment in respect of the first three claimants only. They alleged that the damage was discovered at No 42 in 1997 and they had underpinning done in 1999 to remedy it. Further damage was found in September 2000. The council first notified the defendant of the damage in a letter of 12 February 2003. However, the second three claimants had given notice to the defendant of root encroachment to No 44 and this had been acknowledged by the defendant's loss adjusters by a letter of 16 March 1998.


The defendant denied liability to the first three claimants on the basis that they had no notice of any alleged damage until after all the remedial work had been completed. These claimants relied on the notice given by the owners of No 44 in 1998. Judge Dean QC held that in the absence of specific notice by these claimants, their claims could not succeed and entered summary judgment for the defendant.


The appeal court [2005] EWCA Civ 1701, [2005] All ER (D) 130 (Dec), has recently reversed this decision. Lord Justice Lloyd held that Judge Dean had 'failed to have regard to the full width of the facts that the claimants would rely on to show that the defendant ought to have been aware of the problem at a much earlier stage'. He held that there was a tension and apparent inconsistency in the speech of Lord Cooke in Delaware Mansions between paragraph 34, where he referred to the need for prior notice before remedial works are undertaken, and paragraph 38 where he set out a wider test. It could not be said that the claims of the first three claimants were bound to fail. The order for summary judgment was set aside.


The result of these decisions appears to be that it is at least arguable that the notice that can be relied on need not be specifically given by the claimant. It remains to be seen how broadly this will be developed having regard to the desire of the courts not to impose an unreasonably wide area of responsibility on local authorities. However, notice of root damage from one tree to one property must at least be considered to be notice of the likelihood of damage from a neighbouring and similar tree to an adjoining property, all of which may not be good news to local authorities and other landowners, and their insurers.


District Judge Margaret Langley sits at Central London Civil Justice Centre