What to do if you have damage to your property
If you believe that your property has been damaged due to the presence of trees or vegetation, the first thing to do would be to contact your home insurer. They will be able to tell you whether you have insurance cover for this. If you are insured and the insurers feel that we are legally liable for the damage, then it is most likely they will seek a recovery against ourselves.
If you are looking to make a claim yourself or through legal representation then the responsibility for proving your allegation rests with you. You will need to provide evidence that roots, trees or vegetation are the primary cause of the damage. This should be in the form of a report carried out by a suitably qualified structural engineer. They will usually dig trial pits and monitor seasonal movement within the soil to establish the cause. They will then provide photographic and documented evidence to support your case.
After presenting your evidence to us, we will require two independent estimates for repair or replacement. These detail the work required and provide a proposal of how to avoid any further issues with the tree, roots or vegetation. Such claims are dealt with on an indemnity basis which means that a deduction can be made for “wear and tear” and the decrease in value.
Once all the information has been received, we will use this to consider your claim on a strict legal liability basis.
The legal position
The issue of liability surrounding damage caused by trees is a complex area and relies on the principles of the law of tort – you aver nuisance affecting your property and hold North Somerset Council (NSC) responsible by way of negligence and/or nonfeasance.
For an action in negligence to succeed, the claimant (the person claiming) must demonstrate that a defendant (the party who is accused of doing something wrong):
- owed the claimant a common law duty of care through the legal principal of proximity
- a breach of duty of care owed occurred
- as a direct consequence of the breach of duty, the claimant suffered a reasonably foreseeable loss
In nuisance, case law holds that a local authority has the knowledge (or ought to have the knowledge) that trees it owns may cause property damage to a person's home. It therefore owes a measured duty to inspect and maintain its trees to prevent such damage.
Case law has developed the area of foreseeability. Previously it was automatically assumed that a local authority was presumed to have foreseeability that a tree adjacent to a private domicile posed a risk of subsidence. Now there must exist a ‘real risk’ of the possibility of subsidence. This principle would broadly apply to direct damage caused by tree root growth.
The simple presence of a tree is insufficient. For liability to attach, the court would expect a council to have a constructive knowledge by way of previous claims, or episodes of subsidence and complaints in the area.