The judges at the Court of Appeal went to some length to pull apart the meaning of Section 198(6)(b) and the TCC judge’s interpretation – particularly, whether the removal of the oak tree was necessary, in context to this Section (“this appeal turns on whether the judge was correct in his conclusion that the word ‘necessary’, in the context of section 198(6)(b) of the 1990 Act“). Northampton Borough Council disagreed and took this to the Court of Appeal. Change ), You are commenting using your Twitter account. ( Log Out /  If you find my blog interesting then please do subscribe (via email) to receive updates. Anyway, some days I get bored arguing with council, solicitors, loss adjusters. The trees in question were the responsibility of a housing association, Family Mosaic Housing ("Mosaic"), and of Islington London Borough Council respectively. While the tree is growing the surrounding soil is died out butr when the tree is removed the moisture content builds up, causing the ground to swell. Report subsidence to your building insurer. Subsidence Damage Caused By Trees. In those circumstances it is not self-evident why Parliament should have wished to encourage A to carry out operations to the tree in order to abate or prevent damage to B’s house, so relieving A from his liability in damages” – or, plainly-interpreted, a homeowner has insurance for matters including subsidence and therefore Section 198(6)(b) would not logically allow as an exemption the removal of a tree for the purposes of abating and preventing further subsidence damage. In such an eventuality, the LPA will however be liable to subsidising the costs of the engineering solution – or, if the LPA grant consent for removal and the tree owner refuses, this responsibility passes on to the homeowner (or their own insurer). Local authorities, being large landowners with extensive tree stock in residential and urban areas are often the obvious targets for such claims. Yes. Please provide copies of any guidance or advice provided to council arboriculture officers about how to handle subsidence claims alleged to be caused by council-owned trees. They suck up carbon. Tree roots absorb water for photosynthesis and moisture evaporates from the leaves through transpiration. Received: 18 August 2020. The property owner argued before the Court of Appeal that the judge had been wrong to find that the damage allegedly caused by the tree roots was not reasonably foreseeable. Management of trees is essential to ensure you don’t make the problems even worse. One of the most common causes of subsidence damage to property is from clay shrinkage. The judge determined that this conclusion was a “workable solution to the problem posed [and] also fair” (because it “would be unworkable if a member of the public had to weigh up all the factors listed [in paragraph [51] of his judgment] before coming to a clear view as to whether or not works to the tree were necessary“). we need more trees, due to global warming. Specifically, this is because of the precedent set by the case Perrin & Anor v Northampton Borough Council & Ors [2007] EWCA Civ 1353 (19 December 2007). Create a free website or blog at WordPress.com. 1. Trees and subsidence. The summarised original ruling – known as Perrin & Anor v Northampton Borough Council & Ors [2006] EWHC 2331 (TCC) (26 September 2006) – by the Technology and Construction Court (TCC) was that “the possibility that other engineering works could be carried out is irrelevant” (with the caveat that only “in the vast majority of cases, the fact that alternative engineering schemes are available would indeed be irrelevant“), because “the TPO will not apply to whatever cutting down, uprooting, topping or lopping of the tree is necessary to abate or prevent that nuisance” that was in this case subsidence damage caused by the oak tree. Since Berent, it has been clear that there are no special principles of law applicable to claims for subsidence damage caused by tree roots: those subsidence claims are subject to the general law of negligence and nuisance. This can crack external and internal property walls. Building subsidence issues involving trees in parks and open spaces should be reported to us – see below. Moreover, the judges determined that “Parliament plainly intended that, in such a case and subject to obtaining the consent of, or compensation from, the local planning authority, A is left to bear his own loss: a risk which, in the ordinary way, he will cover by insurance. Of course, if you do find anything of benefit to your studies, then refer back to original sources I have cited or – if the source is me – then cite this blog. Tree root subsidence cases concern structural damage to buildings caused by desiccation of the sub-soil by the unchecked growth of roots from a neighbour’s tree or hedge. Subsidence damage as caused by a tree subject to a Tree Preservation Order is an issue that demands cross-profession liaison; specifically, between at least the arboriculturist, planning officer / manager, and insurance officer / manager for the Local Planning Authority (i.e. The claimants argued that the then current TPO protection did not apply to the oak tree, because Section 198(6)(b) of the Town and Country Planning Act 1990 did not apply (as abating the nuisance of subsidence was a legal exemption to the TPO). Estimates suggest that around 70% of all subsidence cases are a result of tree roots absorbing all the moisture out of soil.
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