EXPERT Subsidence · Further Knowledge · E4 of 6
Cause of action — nuisance and/or negligence
Both routes need causation AND foreseeability. Choice depends on tree owner type and what evidence is available.
| Private nuisance | Negligence | |
|---|---|---|
| Element 1 | Proprietary interest in damaged property | Duty of care from tree owner |
| Element 2 | Causation | Breach of that duty |
| Element 3 | Foreseeability | Causation |
| Element 4 | — | Foreseeability |
Causation test
Tree must be the "effective and substantial cause" (Paterson v Humberside CC 1995) or "material cause" (Loftus-Brigham v Ealing 2003). Balance of probabilities — more likely than not.
Evidence pack you'll need
- Photographs of damage and roots in trial pits
- Root analysis — positive identification of roots under foundations
- PH witness statement — length of residence, when first noticed, tree owner's tending, seasonal opening/closing
- Soil analysis at proper time of year (winter test may not show desiccation — beware false negatives)
- Monitoring — cyclical and progressive movement; ideally continuing post-removal of implicated tree
- Arboriculturist's report (causation + foreseeability)
- Consulting Engineer's report (extent of damage + likely cause + appropriate repair)
Foreseeability — different rules for LAs vs domestic owners
Local Authorities harder to defend
Aware in principle since the mid-1970s of risks of failing to maintain trees in dry conditions (Russell v LB Barnet 1984). But mere proximity is not enough — there must be a real risk (Berent v Family Mosaic & Islington 2012). LA is expected to have a reasonable maintenance regime in place.
Domestic owners harder to recover
Generally treated as unable to foresee tree-root damage (Greenwood v Portwood 1984). Hard-line approach in Butcher v Perkins 1992 rarely followed.
Recovery from domestic owner still possible, but requires:
- Putting them on notice early
- Providing evidence of causation
- Demonstrating they failed to act after notice
See also the ABI Domestic Tree Root Agreement (Module E6).
Capacity to sue
Hunter v Canary Wharf 1997: Claimant must have proprietary interest. Delaware Mansions v Westminster 2001 (HoL): continuing nuisance can extend liability across changes of ownership; defendant entitled to notice and reasonable opportunity to abate.
Limitation
- Negligence: 6-year limitation from damage
- Nuisance: ongoing tort — fresh cause of action accrues each day
- Apportion damage: last 6 years recoverable in nuisance, earlier limitation-barred
- Latent Damage Act 1985: extends by 3 years from discovery, 15-year long-stop
Key cases — at a glance
| Case | Year | Principle |
|---|---|---|
| Paterson v Humberside CC | 1995 | "Effective and substantial cause" test; shallow foundations no defence |
| Loftus-Brigham v Ealing | 2003 | "Material cause" test; vegetation comparison wrongly applied at trial |
| Delaware Mansions v Westminster | 2001 HoL | Continuing nuisance crosses ownership change; right to notice + chance to abate |
| Jones v Portsmouth CC | 2002 | Test for "reasonable opportunity to abate" |
| Hunter v Canary Wharf | 1997 | Proprietary interest required to sue in private nuisance |
| Berent v Family Mosaic & Islington | 2012 | LA needs "real risk", not mere proximity |
| Russell v LB Barnet | 1984 | LAs deemed aware of tree risks since mid-1970s |
| Greenwood v Portwood | 1984 | Domestic owner generally cannot foresee |
| Butcher v Perkins | 1992 | Hard-line domestic foreseeability — generally not followed |
| Hurst v Hampshire CC | 1997 | LA owns highway tree for all purposes regardless of subsoil ownership |
| Bunclark v Hertford CC | 1977 | Poor construction no defence ("eggshell skull" equivalent) |
| McCombe v Read | 1955 | Tree predating house no defence |
| Westminster v John Lyon | 2012 | TPO refusal compensation: future foreseeable underpinning recoverable from LA |
| Shelfer v City of London Electric | 1895 | 4-element test for damages in lieu of injunction |
Quantum challenges
Defendant tree owners will often challenge the cost of repairs, particularly underpinning. The Claimant only has to demonstrate that the repairs were reasonably necessary and that their nature and extent were reasonable. Distress/inconvenience claimable but courts award low.
Source: Subsidence Handbook 4th Edition, Chapter 11 — Recovery Actions.