Neighbour’s improperly built outbuilding could be damaged by my tree, would I actually be liable?
Problem: I am in the building industry and have been an avid reader of Leicestershire Builder for many years. However, my problem is personal and I hope you can assist.
At the bottom of my garden of my own house I have a 5 metre Laburnun tree which is maintained yearly. Three years ago a neighbour whose garden backs onto ours, felled several mature trees 11 metres across and built a large brick outbuilding on clay with permitted development and no building regulations. In 2013 we received a letter with reports and evidence stating that subsidence had occurred on their outbuilding and our tree was partly to blame, as well as other neighbouring trees. I was asked to remove my tree.
I carried out my own investigation and found that the foundations on my neighbour’s outbuilding is just 1 metre deep, but should be 3 metres deep in order to prevent heave from decaying roots. The neighbours are now about to repair the damage but state that any further damage, I could be held liable. The question is, can I be held liable now or in the future given that they obvious potential for subsidence foreseeability before building it?
Martin, Melton Mowbray
Response: Hello Martin. From your outline, 1 metre deep foundations are not suitable, and I doubt whether the design was actually carried out by a qualified engineer (and whether, in designing the foundations, was BS 5837 ‘Trees in Relation to Construction’ implemented).
I suspect that an experienced and competent engineer would not have allowed such shallow foundations to have been built after the removal of trees in the vicinity knowing that there would be a risk of heave and / or subsidence. With this in mind, I suspect that the original movement would have been caused by heave, and hence the root cause (no pun intended), will probably be due to the foundations being insufficiently designed.
That said, if any damage is caused to the neighbouring building in the future and the cause is found to be from your tree, then your neighbour will have a cause of action against you (see Delaware v. City of Westminster ([2001]. My advice is to consult a Chartered Building Surveyor and / or a qualified arboriculturist to see what best action is to take. In addition, it may be wise to also consult your house insurers. Also make sure that the tree is not subject to any TPO’s (Tree Preservation Orders), and you are not in a conservation area.
© Michael P. Gerard
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Author background
Michael is a Practising Solicitor, Barrister, Chartered Builder, Registered Construction Adjudicator & Accredited Expert in quantum and planning matters. He is Managing Director of Michael Gerard & Co., and a Consultant Solicitor with Edward Hands & Lewis, based in Leicestershire.