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Archive for October, 2012

The root and branch of the problem

The Court of Appeal in Berent v Family Mosaic Housing and anor [2012] EWCA Civ 961 gives a useful reminder of the law of nuisance and the extent of the duty one owes to neighbours.  This case concerned subsidence damage caused, in part, by the defendants’ encroaching tree roots.  The court considered whether there is a “reasonable foreseeability of damage” and “what it is reasonable to do in the light of the reasonably foreseeable risk”.

Quoting from Megaw LJ’s judgement in Leakey v National Trust [ 1980] 1 QB 485 (in which the nuisance was caused to neighbours by the natural weathering of earth and rubble from a mound on the defendant’s land), the court agreed

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.  The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made.”

The Court of Appeal looked too at a previous tree root case, Solloway v Hampshire County Council [1981] 79 LGR 449 and quoted “many helpful passages in the judgments of this court” including “In considering whether there is a breach of duty, the extent of the risk and the foreseeable consequences of it have to be balanced against the practicable measures to be taken to minimise the damage and its consequences.

The Court in the Berent case also underlined that one must be careful to distinguish “what should be done once a tree has been positively implicated in causing damage to property as opposed to what should be done at the earlier stage where the prospect of the tree causing damage remains merely a risk”.

Wish to hear more about the law relating to nuisance?  Contact Hatherleigh Training.