Berent v Family Mosaic Housing and the London Borough of Islington
Court of Appeal 2012
Mrs Berent lived in a large four-storey detached house in Islington. Unfortunately, the house had shallow foundations and was constructed on top of London clay, which can be a disastrous combination.
Up until 2011, when they were felled, three large plane trees (two owned by Islington and one by Mosaic) stood near to the house. However, there were a number of other potential culprits for the subsidence that occurred. During 2003 the property’s drains were blocked leading to a large volume of water entering the ground. Also during 2003, the boring machines used to excavate the Channel Tunnel Rail Link were utilised to excavate behind the property which caused vibration damage. Whatever the cause, the property suffered extensive damage due to subsidence in the winter of 2003.
Mrs Berent’s position was that subsidence was caused by the trees drawing moisture from the ground. During 2009 she issued proceedings claiming damages (£200,000 plus an amount for stress and inconvenience) and an injunction for the removal of the trees. The trees were eventually removed in the spring of 2011.
In the original hearing in the Technology and Construction Court, Judge Wilcox said that, whilst the trees had made “a material contribution”, he considered that, having listened to various experts’ evidence, they were not the main cause. He also concluded that, in any event, there was no basis on which the owners of the trees could have “reasonably foreseen” the damage that they might have caused. So there was no breach of duty of care by the tree owners. He did say, however, that the trees should have been removed during the autumn of 2010 and awarded Mrs Berent £5,000 damages for distress and inconvenience for the period after that date.
Mrs Berent appealed against this decision claiming that the tree owners were under a duty to cut down any tree which could foreseeably cause damage. They had a duty of care to minimise such risks, they had breached that duty and she had suffered loss as a result (the three necessary elements for her claim to succeed).
The Court of Appeal considered the arguments put in the lower court and held that in the period leading up to the subsidence there was insufficient evidence to suggest that the trees should have been identified as posing a risk to the property. The Court also held that the amount of £5,000 for distress should be reduced to £150.
Stephen Clarke’s analysis
This case will lead to a sigh of relief in council legal departments throughout the country. Tree damage disputes are based on the law of negligence and nuisance. They have a long history in our legal history, but the basic law is that the court has to strike a balance between the extent of the foreseeable risk and foreseeable consequences on the one hand, and the measures that need to be taken by the owners of the trees to prevent any damage.
Using this analysis a local authority or housing association should have reasonable system of tree management but need not contemplate the “desertification” of tree-lined streets merely to avoid the possibility of potential subsidence claims. In fact, the result of this pragmatic balancing exercise may mean that no action needs to be taken by the tree owners. The process is basically risk management, rather than risk elimination, and there is a balance to be struck “between the various different constraints” on the possible courses of action.
So Mrs Berent lost her appeal and it must have been a bitter pill indeed. Not only was her appeal on the main decision overturned, but the small victory that she had achieved in respect of damages for distress in the lower court was also overturned. The courts are very reluctant as a point of policy to award significant amounts for this head of claim, but this seems to set a new low benchmark for these damages.
