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Court of Appeal clarifies foreseeability test in tree root cases

Damage is reasonably foreseeable if there is a real risk of its occurring. But what if precautions would be unduly burdensome or would destroy the social utility of an amenity? In Berent v Family Mosaic Housing and London Borough of Islington [2012] EWCA Civ 961, Andrew Bartlett KC and Muhammed Haque for Islington and Rebecca Taylor for Mosaic successfully argued that the enquiry as to reasonable foreseeability of damage could not be separated from the enquiry what steps were reasonable to take in the light of the reasonably foreseeable risk. The Court of Appeal agreed that it would have been unreasonable to require removal of trees with amenity value from an Islington street on a purely precautionary basis, prior to the occurrence of actual damage caused by the roots.

Rebecca Taylor recently wrote an article for the Practical Law Company on the decision regarding property owner’s liability for tree-root induced subsidence in Berent v Family Mosaic Housing & London Borough of Islington [2012] EWCA Civ 961, in which she appeared.

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