Dr Giles Biddle and Dr Martin Dobson

1. GETTING TO GRIPS WITH SUBSIDENCE Dr Giles Biddle and Dr Martin Dobson

2. Introduction and background to subsidence problems Dr Martin Dobson

3. Our story begins in the 1970s… …when fashion sense was questionable and subsidence became an ‘insured peril’

4. It continues in 1976… …which coincides with the first commercial flight of Concorde on 21 January

5. …with the formation of Apple Computers on 1 April

6. …with water rationing in Cardiff on 9 August

7. 1976 The long hot summer of 1976 was the longest recorded in England and Wales since 1727.

8. 1976 For several weeks in July and August, large parts of the country got no rainfall at all leading to the drying up of reservoirs and a severe drought. Staines reservoir

10. 1976 Finally the Labour government of the time appointed a minister for drought… Denis Howell …as if on cue the rain began to fall.

11. SUBSIDENCE

12. SUBSIDENCE

16. What kind of damage are we talking about?

26. Legal framework Case law (common law)

27. Trespass

28. Trespass A trespass is the wrongful invasion of another's property. Every unlawful entry onto another's property is trespass, even if no harm is done to the property Trespassing root (naughty!)

29. Nuisance

30. Nuisance Unfortunately trees can’t read!

31. Nuisance A private nuisance is an interference with a person's enjoyment and use of his land.

32. Negligence A person has acted negligently if he/she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

33. Reasonable Foreseeability a danger which a reasonable person should anticipate as the result from his/her action or inaction

34. Solloway v Hampshire County Council (1981) HCC were appealing against a previous judgement made against them in favour of a home owner Mr B. Solloway. Subsidence damage had been caused to the house by a Horse Chestnut owned by HCC. Judgement was made that the encroachment of the tree roots constituted a nuisance and HCC were responsible for damage caused. However, geological maps showed that whilst the house was on plateau gravel sections of it rested on small pockets of clay which were not shown on geological maps. The Court of Appeal ruled that the existence of small clay pockets beneath the house was not reasonably foreseeable and hence there was no breach of duty on the part of HCC. The appeal was allowed.

35. Paterson v Humberside County Council (1995) Damage to a house caused by two Lime trees owned by Humberside County Council. It was noted that although the house had shallow foundations and was thus more susceptible to damage this had no relevance to liability – ‘the tree takes its victim as it find it’ An argument was made on behalf of the plaintiffs that there was no need to establish foreseeability.This was rejected by the judge who said the test for such foreseeability was whether the risk was one which a reasonable person in the defendants position would have regarded as a real risk. The Council was deemed to know that damage was a ‘real risk’ as it advised householders of safe distances from buildings to plant trees.

36. Delaware Mansions v Westminster City Council (1999) In 1989 a Plane tree owned by Westminster City Council caused damage to some flats. Engineers recommended underpinning of the flats or removal of the tree. The council refused to remove the tree. The flats were sold in June 1990 to the second appellant company for one pound. However, their claim for damages was dismissed on the grounds that they could not claim because the damage had occurred before they became the owners. The plaintiffs appealed and won. "Thus, where there is a continuing nuisance, the owner is entitled to … damages " "If the council had agreed to remove the tree when asked, the damages would have been very small…the fact that the nuisance existed before the second appellant became the owner is irrelevant".

37. Jones v Portsmouth City Council (2002) The key issues were whether subsidence had been caused by the defendant’s Plane trees, whether the council were responsible and whether or not the council had been given sufficient notice to abate the nuisance. The judge ruled that the trees had caused damage and that despite the soil being ‘brick earth’ it was a foreseeably shrinkable soil. On the matter of reasonable notice to abate the judge said: ‘the fact is that the defendant was notified of the claim before the claimant was committed by contract to the underpinning ’ and therefore ‘the defendant was not deprived of a reasonable opportunity to abate the nuisance’.

38. Loftus Brigham v London Borough of Ealing (2003) The issue was subsidence caused by either the claimant’s Virginia creeper and/or Wisteria or the defendant’s Plane trees Original ruling - ‘The Claimants need to show that the Defendants’ trees were probably the dominant cause and they have not convinced me that such was established’ On Appeal the ruling was that the proper test was whether the tree roots were the ‘effective and substantial’ cause of the damage or alternatively whether they ‘materially contributed to the damage’.

39. Raphael v London Borough of Brent (2007) The issue was whether level monitoring only was adequate to establish that subsidence had occurred. There were no soil, foundation or root investigations. Neither was any crack monitoring carried out. The secondary issue was which vegetation caused the damage. Was it the claimant’s Wisteria and Cherry or the council’s Plane(s)? The judge ruled out the claimant’s vegetation as a cause of damage and gave judgement against the council.

40. PLANE CHERRY

41. London Tree Officer’s Association

42. Identify those trees that are most likely to cause subsidence damage and subject them to a regular and systematic pruning regime. • Make the identification of the above trees an on goingprocess within the normal tree inspection programme. • Investigate all potential subsidence claims that may implicate trees and take prompt action (i.e. investigate the site and, if appropriate, carry out precautionary pruning). If ground conditions recover subsequent to precautionary pruning the potential claim may not be lodged. By taking prompt action boroughs can eliminate or mitigate a potential claim. • All claims should be assessed and remedial pruning carried out as soon as practically possible, except where the claims are clearly unreasonable or erroneous. • Before undertaking further pruning or contemplating tree removal the authority should insist that the claimant provide adequate evidence in support of the claim.

43. Identify those trees that are most likely to cause subsidence damage and subject them to a regular and systematic pruning regime. • Make the identification of the above trees an on goingprocess within the normal tree inspection programme. • Investigate all potential subsidence claims that may implicate trees and take prompt action (i.e. investigate the site and, if appropriate, carry out precautionary pruning). If ground conditions recover subsequent to precautionary pruning the potential claim may not be lodged. By taking prompt action boroughs can eliminate or mitigate a potential claim. • All claims should be assessed and remedial pruning carried out as soon as practically possible, except where the claims are clearly unreasonable or erroneous. • Before undertaking further pruning or contemplating tree removal the authority should insist that the claimant provide adequate evidence in support of the claim.

44. Identify those trees that are most likely to cause subsidence damage and subject them to a regular and systematic pruning regime. • Make the identification of the above trees an on goingprocess within the normal tree inspection programme. • Investigate all potential subsidence claims that may implicate trees and take prompt action (i.e. investigate the site and, if appropriate, carry out precautionary pruning). If ground conditions recover subsequent to precautionary pruning the potential claim may not be lodged. • All claims should be assessed and remedial pruning carried out as soon as practically possible, except where the claims are clearly unreasonable or erroneous. • Before undertaking further pruning or contemplating tree removal the authority should insist that the claimant provide adequate evidence in support of the claim.

45. Identify those trees that are most likely to cause subsidence damage and subject them to a regular and systematic pruning regime. • Make the identification of the above trees an on goingprocess within the normal tree inspection programme. • Investigate all potential subsidence claims that may implicate trees and take prompt action (i.e. investigate the site and, if appropriate, carry out precautionary pruning). If ground conditions recover subsequent to precautionary pruning the potential claim may not be lodged. • All claims should be assessed and remedial pruning carried out as soon as practically possible, except where the claims are clearly unreasonable or erroneous. • Before undertaking further pruning or contemplating tree removal the authority should insist that the claimant provide adequate evidence in support of the claim.

46. Identify those trees that are most likely to cause subsidence damage and subject them to a regular and systematic pruning regime. • Make the identification of the above trees an on goingprocess within the normal tree inspection programme. • Investigate all potential subsidence claims that may implicate trees and take prompt action (i.e. investigate the site and, if appropriate, carry out precautionary pruning). If ground conditions recover subsequent to precautionary pruning the potential claim may not be lodged. • All claims should be assessed and remedial pruning carried out as soon as practically possible, except where the claims are clearly unreasonable or erroneous. • Before undertaking further pruning or contemplating tree removal the authority should insist that the claimant provide adequate evidence in support of the claim.

48. Joint Mitigation Protocol May 2008 Aims to: Speed up the process of claims handling, decision making and mitigation implementation leading to resolution Recognise the value of trees in the built environment Provide local authorities with all the investigative evidence required at the beginning of the process.

49. Joint Mitigation Protocol May 2008 7 days notify tree owner of damage 14 days after receipt of notification tree owner to supply details of: - Contact person - Insurer - CAVAT value of tree - low (less than £5,300) medium (£5,300 to £17,500) high (greater than £17,500). 60 days submission of evidence in support of claim 13 weeks from receipt of the evidence to undertake the mitigation.