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Royal Borough of Kensington & Chelsea defend long running subsidence claim

Following a long running and bitter dispute that lasted almost 12 years and following a 5-day trial heard in November 2018 and March 2019, HHJ Bailey dismissed the claim against the Royal Borough of Kensington & Chelsea (“RBKC”) for subsidence due to the effect of tree roots.

The Claimants are the freehold owners of a building which has been converted to a Temple in Queensdale Road in west London. At the front of the Property stood at the material time two flights of steps which were used to access the Property (“the Steps”). At the material time, there was an Indian bean tree and a Turkish hazel in front of the Property for which the Defendant was responsible (“the Trees”).

The Claimants say that they discovered cracks to the Steps in or around October 2007. There was a large disagreement between engineers appointed on behalf of the insurer and the insured as to the correct remedial scheme. The latter was firmly of the view that on account of the poor ground conditions (loose fill and voids beneath the Steps), the Steps should be demolished and rebuilt on a reinforced concrete slab. He warned that unless these works were done, settlement could occur. The insurer’s engineer disagreed and considered that the proposed works were disproportionate and excessive. His opinion was preferred and hence the repairs, which consisted of (approximately 24m3 of) uretek injections, took place in September 2014 and were completed in or around April 2015. The value of the claim was agreed, subject to liability, at just over £220,000.

The curious feature of the case was the Steps were then demolished and rebuilt in 2017 although the reasons for this never came to light. The Defendant argued that it demonstrated that the cause of the damage was not the Trees but rather the poor construction of the Steps that had been identified by the insured’s engineer at the outset. The Defendant also denied liability.

HHJ Bailey found for the Defendant both on the issue of liability and causation. Although he found that some damage from tree root desiccation may have occurred, he was not satisfied that the trees materially contributed to the damage to the Steps. With respect to liability, the Judge found that although RBKC knew there was shrinkable soil in the area; and that the Trees were within influencing distance of the Steps; the Judge accepted that there was not a ‘hotspot’ and accordingly that the Trees did not pose a real risk of damage to the Steps.

James Sharpe acted on behalf of the RBKC, instructed by Clyde & Co.

A copy of the judgment is available a here.


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