A perennial problem: tree root nuisance

Damage caused to property by tree roots is a problem often encountered by land owners, occupiers and developers. All too often, damage goes unchecked and unmitigated because the legal principles for establishing liability are not straightforward and because sensitivities can arise, particularly where the properties and parties involved are residential neighbours.

In Khan v Harrow Council and Anor, the second defendant (Mrs Kane) admitted that subsidence to the claimants’ (Mr and Mrs Khan’s) property had been caused by a hedge and/or an oak tree on her land. However, Mrs Kane denied liability using the technical legal arguments that the damage was not reasonably foreseeable to her as an ordinary individual owner of a domestic property and that Mr and Mrs Khan were contributorily negligent for failing to alert her to damage being caused.

The general principle founding liability for nuisance (including tree root damage) is that it must be reasonably foreseeable that the existing factual circumstances represent a genuine risk of damage. A person is liable ‘if he does not take steps to eliminate a risk that he knows or ought to know is a real risk and not a mere possibility’… 

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