Denness & Anor v East Hampshire District Council

Tree-root damage claims are governed by the ordinary principles of negligence and nuisance. The relevant question is whether the risk of damage was reasonably foreseeable and what reasonable steps, if any, should have been taken in response. The court must balance the extent and likelihood of the risk against the practicality, difficulty, duration and cost of preventative measures. The claimant must first prove causation on the balance of probabilities. An equivocal expert opinion, with competing explanations for the damage, will not discharge that burden. A claim may also fail where the risk is low and there is insufficient evidence identifying effective preventative measures.

The claim concerned cracking to the claimants’ house, allegedly caused by roots from beech trees controlled by the defendant local authority. The claim was advanced in nuisance and negligence. The evidence included a single joint engineering expert’s report and oral evidence, but no arboricultural expert evidence.

Closing submissions were adjourned pending the Court of Appeal’s judgment in Berent v Family Mosaic Housing & London Borough of Islington [2012] EWCA Civ 961, which the court considered relevant to the governing principles. The central issues were causation, the extent and foreseeability of any risk, and whether reasonable preventative measures should have been taken.

1. The claim was dismissed. The claimants had not established on the balance of probabilities that the beech trees or their roots caused the cracking. The engineering evidence was equivocal and identified heave as the more probable cause.
2. Tree-root damage cases are governed by the general law of negligence and nuisance. The court applied the approach confirmed in Berent v Family Mosaic Housing & London Borough of Islington [2012] EWCA Civ 961, rather than any special tree-root principles.
3. The relevant assessment requires consideration of causation, the extent and likelihood of the risk, the possible extent of the damage, and the practicality, simplicity, difficulty, duration and cost of preventative measures. The court must also consider whether there was sufficient time for reasonable preventive action after the risk became known or ought to have been appreciated.
4. On the evidence, the risk of tree-related subsidence was low. The claimants also produced no reliable evidence identifying preventative measures which the defendant could or should have taken. General assertions about pruning regimes and untested material from the London Tree Officers’ Association could not establish breach.

The claim therefore failed on causation, risk and preventative measures. The action was dismissed, with costs to be dealt with by agreement or argument on the handing down of judgment.