Berent v Family Mosaic Housing & Anor (Rev 1)

Tree-root disputes are governed by general principles of negligence and nuisance. Liability depends on whether the defendant should have appreciated a real risk of damage and, if so, what reasonable steps were required. Foreseeability cannot be separated from the response to the risk. The court must balance its likelihood and seriousness, the practicability, difficulty and cost of preventative measures, the time available, and the social or environmental value of the activity. A mere possibility does not automatically require removal of trees. Where the evidence does not show that particular trees presented a risk requiring action, or that pruning would have prevented or reduced the damage, a claim for historic subsidence damage fails. Damages for distress and inconvenience remain modest and should be consistent with established benchmarks.

The appellant owned a house in Islington and alleged that mature plane trees controlled by a housing association and the local authority caused structural damage in 2003 and 2004. The High Court, Technology and Construction Court, dismissed the claim for physical damage, finding no real risk reasonably foreseeable before the damage and no breach of duty, but awarded £5,000 for distress, inconvenience and loss of amenity from autumn 2010 until judgment: [2011] EWHC 1353 (TCC).

The appellant appealed on foreseeability, tree management and the timing of the respondents’ duty. The respondents cross-appealed on causation and quantum. The central issues were whether the historic subsidence damage was reasonably foreseeable and whether reasonable preventative measures, including pruning or felling, should have been taken.

Disposition and reasoning

1. The appeal was dismissed. The cross-appeal was allowed in part, and the award for distress, inconvenience and loss of amenity was reduced from £5,000 to £150.
2. Tree-root claims involve the ordinary law of negligence and nuisance. The court applied the risk-balancing approach in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (the Wagon Mound (No 2)) [1967] 1 AC 617, Tomlinson v Congleton Borough Council [2004] 1 AC 46, Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 and Solloway v Hampshire County Council [1981] 79 LGR 449.
3. Foreseeability and breach could not be considered separately. The relevant inquiry required an assessment of the extent and seriousness of the risk, the practicability and cost of preventative measures, the time available for action, and the social or environmental value of maintaining the trees. A foreseeable possibility did not necessarily amount to a real risk requiring action. Wholesale felling of trees in an established avenue could be disproportionate.
4. The evidence did not establish that, before the 2003–2004 damage, the three trees posed a risk of a nature and extent requiring removal or additional management. Nor did it establish that pruning would have eliminated or reduced the risk. The appellant therefore failed to prove foreseeability and breach. The court did not need to determine the fresh-evidence issue because the policies relied upon would not have materially affected the result.
5. Damages under the relevant head were intended to be modest, not generous. Applying the benchmark in Eiles v London Borough of Southwark [2006] ALL ER (D) 237 and the pleaded rate of £200 per year, £150 was substituted.
6. The respondents received the costs of the appeal and cross-appeal. The costs order below was left undisturbed, interim payments on account were ordered, and permission to appeal to the Supreme Court was refused.

1. Court of Appeal (Civil Division) — The appeal was dismissed and the cross-appeal was allowed in part. The judgment is reported at [2012] EWCA Civ 961.
2. High Court, Technology and Construction Court — The claim for physical damage was dismissed, but £5,000 was awarded for distress, inconvenience and loss of amenity: [2011] EWHC 1353 (TCC).