As lovely as a tree?

United Kingdom

Wordsworth wrote famously of his affection for a particular Yew Tree in Cumbria. "Produced too slowly ever to decay; Of form and aspect too magnificent to be destroyed". That Yew Tree still stands today, to the great pleasure of the burghers of Lorton Village.

The same cannot be said of a particular 5-storey high Plane Tree in Maida Vale, London, which gave rise to a court case that went all of the way to the House of Lords.

The particular tree in question was planted in the early 20th century by Westminster City Council on the footpath in front of a 5-storey apartment block known as Delaware Mansions.

In 1989 cracking was found in the walls of some of the apartments, the cracking was investigated by structural engineers, and the fingers of suspicion were all pointed at the Plane Tree as the source of the problem. The cracking was symptomatic of serious structural problems with the apartments' foundations. Since being planted the tree has grown considerably, and although its foliage was pruned fairly regularly by the Council, its roots were not.

The structural engineers who investigated the cracking came up with a scheme to stabilise the building by underpinning it, and to trim-back the offending tree roots.

The Council was kept abreast of all this, and a copy of the engineers' remedial scheme was sent to the Council. The Council agreed to prune the roots of the Plane Tree – and duly did so.

But root pruning was not going to solve the structural problems facing Delaware Mansions, and further investigations revealed that the roots had made their way right under the building's foundations, which now required extensive underpinning.

The works were effected by the owners of the building at their own expense who then sought to recover the cost of the underpinning and related activities (around £570,000) from the the owner of the offending tree, Westminster City Council.

The Council resisted payment, saying that the tree wasn’t the cause of the cracking at all. When the dispute went to hearing, the Court said that the tree was the cause. So the Council lost on this point.

But there was more to the case. Ownership of Delaware Mansions had changed hands not long after the structural engineers had identified the cause of the cracking, and come up with a remedial scheme. The Council said that they weren’t liable to the new owners, because the damage caused by the tree roots occurred before the new owners (who were suing the Council) had acquired the property. This argument was based upon a particular interpretation of a number of "tree roots" cases. Not surprisingly, there have been many cases over the years where common problems such as encroaching tree roots have been a source of litigation. However, the law concerning the effects of changes in ownership in tree roots cases (and similar cases) had not been resolved authoritatively, until 25 October 2001.

The House of Lords said that the Council was liable to reimburse the owners of Delaware Mansions for the cost of underpinning (and related costs). The fact that there had been a change in ownership after the cracking appeared didn't matter. The point was that the problems caused by the Council's tree had continued after the change of ownership.

So the new owners of the apartments were entitled to be compensated for fixing-up the apartments. But the House of Lords stressed that their decision doesn't give licence to a property owner to perform expensive remedial work, and then send the bill to the local Council. It was stressed that the Council should be given a reasonable opportunity to take steps itself to correct the damage caused by the tree roots. If the Council isn’t given sufficient opportunity, there is a real potential for the land owner to be stuck with the costs of repairing the damage.

Fortunately for the owners of Delaware Mansions, they had given the Council adequate notice and opportunity to repair the structural problems with the apartments. The Council had refused to perform that repair work. The owners had acted entirely reasonably in giving the Council the chance to repair the damage, and the repair work which the owners had done was not extravagant or uncalled for.

For further information, please contact Julian Bailey at [email protected] or on +44 (0)20 7367 2057.