Denness & Anor v East Hampshire District Council

The evidence in this action was heard on Monday 13^th February 2012. At its conclusion, I was informed by Counsel that they were both involved in an appeal from HH Judge Wilcox (Berent v. Mosaic Family Housing [2011] EWHC 1353) which was listed for hearing in the Court of Appeal on 20^th and 21^st March 2012. Counsel told me that the judgments in that appeal would bear on the issues in this case. Therefore, closing submissions in this case were adjourned to await the judgments of the Court of Appeal. The judgments in that case were handed down by the Court of Appeal on 13^th July 2012 ([2012] EWCA Civ. 961). It was impossible to find a convenient date to hear Closing Submissions before 20^th September 2012: on that day, having read and heard the arguments of Counsel, I reserved judgment.

As Mr Crowley for the Claimants succinctly expressed it at paragraph 1 of his Written Opening “This is a tree root subsidence case”. Mr and Mrs Denness are the owners and occupiers of a house and land at 24 Penrose Way, Four Marks, Alton, Hampshire, GU34 5BG. The Defendant Local Authority controlled Beech trees on the public highway in close proximity to the Property. The trees have now been removed but their position is shown on a plan at page 17 of the Trial Bundle. It is said that the tree roots caused structural damage to that Property. Photographs of the damage are at pages 53 to 55 of the Trial Bundle. In essence, the Claimants argue that the damage was caused by the nuisance and/or negligence of the Defendant in allowing the roots of the three Beech trees to undermine the foundations of the Property. This is a low value claim in that general damages are sought of £1,000 by each Claimant and there is a claim for cracking in the now agreed sum of £11,241.27. Counsel have told me that in the event that the need arises, they will have no difficulty in agreeing the award of interest on those sums. The Trial Bundle includes witness statements from both Claimants (at pages 85-90), a witness statement from Mr Stewart Garside on behalf of the Defendant (at pages 91-125) and a report from a Single Joint Expert, Mr Robert Evans, at pages 126-150 of the Trial Bundle, an updated version of which is at pages 117-140 of the Supplemental Trial Bundle). Mr Evans alone gave oral evidence. The other witnesses were read as agreed evidence.

The cracking to the Property consisted of internal and external cracking to the lounge, internal cracking to the study, internal cracking to the first floor landing and internal cracking to the third bedroom. Mr and Mrs Denness noticed that cracking in August 2006. The Property is a two storey detached house with a double garage at the left-hand side. Construction occurred in 2000.

Mr Evans set out the results of his investigations in his report. His conclusions are that the damage occurred during a period of abnormally hot and dry weather: rainfall in the Summer of 2006 was only 78% of the 10 year average. The damage to the building is slight: the maximum crack width recorded was 3mm, but generally the crack widths were in the range of hairline to 1mm. There are two possible mechanisms suggested by the patterns of the cracks: downwards and/or rotational movement of the right-hand side wall of the building and lateral swelling of the soil below the building. Overall, Mr Evans expressed his view that:

“based on the balance of probabilities, the damage was caused by the effects of Beech trees growing in the public open space at the right-hand side of the building during abnormally hot and dry condition (sic) in 2006.”

In Berent v Family Mosaic Housing & London Borough of Islington [2012] EWCA Civ. 961, the Court of Appeal clarified the relevant principles. In essence, it is now clear that cases involving tree root damage are subject to the same rules of law as a claim brought in common law negligence. In the judgment of Tomlinson LJ, with whom Kitchin and Mummery LJJ agreed, he considered the development of the law beginning with the Decision of the Judicial Committee of The Privy Council in Overseas Tankship (UK) Limited v. The Miller Steamship Co Pty, (“The Wagon Mound (2))” [1967] 1 AC 617. The most relevant paragraphs (for the purposes of this case) of the judgment are those at 19-23. In particular, at paragraph 20, Tomlinson LJ drew attention to Lord Reid’s use of the expression “a real risk” in the Wagon Mound (2) and said:

“..........(O)ne cannot in this context separate the enquiry as to reasonable foreseeability of damage from the related enquiry what is it reasonable to do in the light of the reasonably foreseeable risk. It may be reasonable to take no steps to eliminate a risk likely to eventuate and which will be of small consequence if it does. The social utility of the activity which gives rise to the risk falls to be considered. Carelessly leaking oil into a harbour is an activity of no value from which it is obvious that anyone should desist if it gives rise to only a very small risk of a disastrous fire. Playing cricket on the other hand is a socially useful activity – players should not be expected to desist unless at the location at which the game takes place, it poses a risk, the nature and extent of which outweigh the undesirability and/or inconvenience and/or difficulty and/or expense of eliminating the risk by stopping play at that ground and/or finding another more suitable location.”

At paragraph 21, Tomlinson LJ considered the speech of Lord Hoffman in Tomlinson v. Congelton Borough Council [2004] 1 AC 46 where, at paragraph 36, Lord Hoffman distinguished between an activity which was of no social value and an activity which is of social value.

In that case, at paragraph 37, Lord Hoffman referred to the need to strike a balance which “may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v. Stone,it is still in all the circumstances reasonable to do nothing about it”.

At paragraphs 22-23, Tomlinson LJ identified that balance being struck in cases concerned with tree roots or allied matters. He exemplified two such cases: Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 at a paragraph 23 Solloway v. Hampshire County Council [1981] 79 LGR 449.

In particular, in Leakey at 524, Megaw LJ, giving the leading judgment, said:

“The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property…. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused. What is to be foreseen as the possible extent of the damage if the risk becomes a reality? Is it practical to prevent, or to minimise the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work they involve and what is the possible cost of such works. Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the Defendant, and at the time when the damage occurred?Factors such as these, so far as they apply in the particular case, fall to be weighed in deciding whether the Defendant’s duty of care requires, or required him, to do anything and, if so, what?”

Tomlinson LJ also drew attention to the Judgment of Sir David Cairns in Solloway at page 460:

“To say that a risk of damage is reasonably foreseeable means that it is foreseeable, not merely as a theoretical possibility but as something, the chance of which occurring, is such that a reasonable man would consider it necessary to take account of it. The risk of being struck by lightning when one goes for a walk is not a reasonably foreseeable risk. I should be prepared to hold that the risk in this case was not a reasonably foreseeable risk. If, however, it could be said to be a reasonably foreseeable risk, I am satisfied that it was a risk, such that the cost and inconvenience of taking any effective steps to remove it or reduce it would be quite out of proportion to that risk. There is nothing in the evidence to show that No. 72 Shirley Avenue was any more at risk than any other house in the Avenue. Nor is there anything to show that any operation on the trees, short of felling, would have made the roots safe if there were exceptionally dry weather and if the roots of any particular tree were passing through clay”.

In Robbins v. LB Bexley [2012] EWHC 2257 (TCC), Edwards-Stuart J said at paragraph 169 that the effect of the judgment of Tomlinson LJ in Berent is to “make clear that there are no special principles of law that relate to tree root cases: they are subject to the general law of negligence and nuisance.”

At paragraph 13 of his Written Closing Submissions, Mr Haque identified the following as being the issues on the adoption of the test in Leakeyas approved in Berent. In my judgment, Mr Haque is correct in so doing. They are as follows:

Mr Crowley identified the issues at paragraphs 7 and 8 of his written Closing Submissions. I do not understand him to differ from the issues identified by Mr Haque.

There was no arboricultural expert. Mr Evans was the single jointly instructed engineering expert. Mr Evans accepted that there were two possible causes of the damage to the Property, heave and the Beech trees. I have considered carefully the evidence of Mr Evans, both written and oral. He was courteously and effectively cross-examined by Mr Haque. There is considerable room for doubt over the conclusions which he reaches in his evidence in particular when his oral answers are taken into account. In particular, his evidence on crack patterns, the absence of heave protection, soil moisture content, level monitoring, tree root depth and foundation depths leads to there being a far from clear cut answer. I set them out as follows:

The evidence is that some cracks are plainly inconsistent with tree-related movement, in particular, the crack above the DPC and the cracks above the door and windows. At best, the evidence goes either way. The relevant references are:

“The damp-proof course creates a discontinuity for movement”

[Transcript page 5, line 22]

“The 1.5mm wide being more persistent (consistent) with the lateral movement, which in turn is consistent with heave of the soil”

[Transcript page 5, lines 25-26]

“But it is still wider at the bottom than the top, so I agree it is not obviously consistent with subsidence mechanism”

[Transcript page 6, lines 1-3]

“It goes both ways, yes. There are some cracks that indicate heave, and there are some that indicate subsidence”

The absence would:

“certainly make it more likely to be subject to heave, yes”

At [Transcript page 8], Mr Evans accepted that there was no differential dessication between the borehole close to the Beeches and the datum borehole [page 8, line 29] and indeed, of the two remaining readings of the eleven, they showed that it was wetter closer to the tree at a depth of 1m rather than drier [page 9, line 8] Mr Evans then accepted that the soil moisture results show that a reasonable inference was that the tree was not having much of an influence on the borehole at that time [page 8, line 16].

At [Transcript page 14], Mr Evans accepted that the level of monitoring between July and August 2007 should show downward movement if the trees were having an effect. Instead it showed upward movement. I was not assisted by his subsequent suggestion that there may have been heavy rainfall outweighing the effect of the trees.

At [Transcript page 16, line 2], Mr Evans accepted that the root findings were inconclusive which must be read with his report at paragraph 76 “although the root identification confirms the effects of one or more of the Beech trees extend to the building, it does not confirm that its/their effects could extend below foundation level”.

The NHBC Guidelines show that foundation depths required where there is a Beech tree at 12m is a minimum of 1m and for a tree at 3m away is 1.36m. The relevant foundations were 1.4m. At [Transcript page 12, line 15] Mr Evans said:

“I can’t go into foreseeability but what I can say is that foundation depth of 1.4m would comply with the industry standard as a minimum depth.”

At [Transcript page 12, line 21], he also said that he would design a foundation depth of 1m unless roots were found. In this case there is no evidence of any roots being found during the digging of the foundations.

On the evidence before me, I am unable to conclude that the Claimants have shown to the requisite standard of proof that the damage to the Property was caused by the Beech trees or their roots. Mr Evans’ evidence is, at best, equivocal. In my judgment, the damage was probably caused by heave.

In case I am wrong in that conclusion and for completeness, I consider also the remaining issues.

There is no expert arboricultural evidence in this case. Mr Evans’ oral evidence [Transcript page 12] said that the risk from the roots would be low. That is consistent with the agreed evidence of fact of Mr Garside who is the Defendant’s arboricultural officer. At paragraph 8 of his witness statement, he refers to the risk having been assessed and it having been concluded that “the possibility of tree-related subsidence was very low…”. On that ground also, this claim fails.

Issues (d), (e) and (f), Preventative Measures.

For the reasons which I have set out, the Claimants fail on each of the issues in this case. The action must be dismissed. I hope that Counsel can agree on the wording of the Order and costs. In the event that they can do so, I would be glad to receive an agreed draft and there will be no need for any attendance by Counsel when I hand down this Judgment. Alternatively, I will hear argument when I hand down this Judgment.