Berent Revisited – London Borough of Enfield successfully defends tree roots nuisance claim
On 15 December 2016, HHJ Parfitt, siting as a judge of the TCC list at Central London CC, dismissed a claim brought by the occupiers of a residential dwelling (“the Property”) for damage caused by a Norway Maple Tree (“the Tree”) which was under the control of the London Borough of Enfield. Causation was admitted and the primary issues to be determined were whether damage was reasonably foreseeable and whether the Defendant acted reasonably in light of the risk.
The Tree presented a number of ‘bare risk factors’ which were (i) the Property was a relatively old property so unlikely to have foundations built by reference to any potential tree risk; (ii) the Property was built on London clay, a soil type that was particularly susceptible to subsidence caused by tree roots; and (iii) the Tree was located a distance of about 6 metres away from the Property which was at the edge of the zone of influence where 50% of subsidence cases caused by this genus of tree had occurred.
The Claimants additionally relied upon the number of claims in the area as an additional risk factor as the arboricultural experts had agreed in their joint statement that the Defendant had been notified of 17 subsidence claims within a 2-mile radius of the Property. HHJ Parfitt rejected the argument that there was a so-called ‘hotspot’ and held that:
“It seems to me that to be meaningful a potential hot-spot would have to be identified by looking at claims which do or do not fit a particular materiality profile within and without the hotspot area and for there to be a likely explanation for the within claims to be grouped together so as to give rise to an inference that there was a definable geographical area which might require special consideration …”
The Judge concluded that the Tree was no more of a risk than any of the other Norway Maple trees in the Defendant’s borough that were situated up to 6 meters away from pre-war housing stock built on London clay.
The Judge went on to consider whether the Defendant was in breach of duty for not following a biannual 70-90% pruning regime that should have included the Tree. The Judge found that there was nothing in the evidence that could lead to the conclusion that the decision taken by the Defendant not to include Norway Maples within its 2-year programme or alternatively not to manage their Norway Maple stock by using aggressive biannual Hortlink style pruning techniques showed a failure to take reasonable care of the Claimants’ property; as (i) the pruning cycle was likely to damage the Tree; (ii) there was a value in the Tree having a more substantial canopy than that which is likely to be provided by a 70-90% biannually reduced tree; (iii) there was a substantial cost associated with changing the Defendant’s 2-year / 4-year tree classification; and (iv) the Tree was no more a risk than any other of many such trees in the Defendant’s borough which would have shared the base risk factors.
The decision usefully illustrates the application of principles enunciated by the Court of Appeal in Berent v LB Islington [2012] EWCA Civ 961 and demonstrates that claimants will need to do more than to show the usual bare risk factors which are present in almost all tree root subsidence claims.
James Sharpe (instructed by Clyde & Co) appeared on behalf of the London Borough of Enfield.
