Tree is root of council's £1m problem

In an era when rain forests round the world are being decimated daily, this country's strict tree preservation laws are to be applauded.

However, one London council has just received a costly reminder that, while trees are to be preserved, there is a limit to the extent to which they should be allowed unfettered growth.

As a result of a recent court ruling, Westminster City Council faces a £1m bill over damage caused by an 80-year-old pavement plane tree, which was allowed to grow to what one expert described as "forest proportions".

The Court of Appeal, which ruled the council must foot the bill for the damage and for the legal costs, was told in the case of Delaware Mansions Ltd and Flecksun Ltd v The Lord Mayor and Citizens of the City of Westminster that, had the council accepted that a tree of this size was inappropriate in its location and cut it down, the minor repairs necessary would have left them with a bill for a mere £14,000.

Instead the council let the tree stay, and in the end its roots caused massive subsidence damage to a number of blocks of mansion flats in Maida Vale which necessitated major underpinning.

Originally, the High Court in 1998 dismissed a claim for compensation for the cost of repairing the damage on the basis that Flecksun, a company set up by the owners of the flats, did not have sufficient legal standing to bring the claim.

On 21 July though, in a case which clarifies the rights of property owners to sue, Lords Justices Beldam, Pill and Thorpe have reversed that decision.

It had been argued that the damage, which cost £570,735 to put right, happened before the residents bought the freehold, and that, as they had not formally taken over the legal rights of the previous freeholders to sue, they had no legal status to take the council to court.

However, the appeal judges held that Flecksun was entitled to sue, and entitled to £835,430 damages, which with legal costs will land the council with a bill for more than £1m.

Lord Justice Pill said that where there was a continuing nuisance the owner of property was entitled to a declaration to abate the nuisance, to damages for physical injury and to an injunction.

He continued: "He is in my judgment, and on the same principle, entitled to the reasonable cost of eliminating the nuisance if it is reasonable to eliminate it."

He said he was satisfied that the nuisance had been present during the current ownership of the properties and the fact that it also existed before was irrelevant.

He did not consider any need for Flecksun to prove further physical damage resulting from the nuisance.

Rachel Bolt, the partner who heads the property recovery unit of Beachcroft Wansbroughs' London office, acted for the owners and their insurers, Ecclesiastical Insurance Group, and instructed Michael Pooles QC of 4 Paper Buildings in the case.

She says that, although tree root cases have to be viewed on their individual merits, she considers the Appeal Court ruling "clear confirmation that courts are keen to penalise perpetrators of damage caused by tree roots".

Bolt says that although the damage began before Flecksun bought the flats, the company had the right to sue because the problem was ongoing. She says that the courts adopted a "pragmatic approach" towards the fact that Flecksun had not taken an assignment of the previous owners' cause of action.

"We pursued the matter to appeal on the basis that while the damage might have occurred before Flecksun bought the freehold interest in the blocks of flats, it was an ongoing wrong, the consequences of which the council could to all intents and purposes have avoided at any time after Flecksun's purchase by removing the tree. In the circumstances Flecksun should be entitled to sue," she says.

"The decision is generally good news for those seeking to recover a loss. It demonstrates a pragmatic and broad-brush approach in keeping with the recent sweeping reforms to the civil procedure process.

"It should become increasingly difficult for wrongdoers to avoid responsibility on a legal technicality.

"The ruling also brings new certainty to situations such as these, and at the same time removes the potential for a defendant to be exposed to payment for the same loss twice.

"The case is also one which could well have implications for a more straightforward approach to establishing entitlement for insurers to subrogate to a loss."