Khan & Khan v Harrow Council & Kane  EWCH 2687 (TCC)
It has been over three years since the judgment in Khan & Khan v Harrow Council & Kane  EWHC 2687 (TCC) and its impact on foreseeability in tree root nuisance claims remains notable. But on close analysis how useful is it really to claimants?
The parties owned neighbouring properties. On Mrs Kane’s property was an oak tree 10 metres from the Khans’ property and a cypress hedge 10 metres tall and half a metre away. In 2006, the Khans noticed cracking and, following investigations, Mrs Kane was notified of the potential nuisance from the cypress hedge in June 2009. It was recommended that the cypress hedge be removed, which was done without delay.
After further monitoring the Khans’ solicitors wrote to Mrs Kane implicating the oak tree, which was removed after obtaining relevant permission. The Khans subsequently sued Mrs Kane for damage to their house, including damage occurring in 2006.
- Mrs Kane had no actual knowledge of the risk but the standard is of the objective reasonably prudent landowner in her position. Such a landowner has a general awareness of tree root damage but one must consider the particular features of the implicated vegetation.
- The size, proximity, and condition of the cypress hedge were sufficient to put Mrs Kane on notice of a real risk of subsidence damage, rather than a mere possibility.
- There was no particular feature of the oak tree to put Mrs Kane on notice.
- Mrs Kane breached her duty by failing to remove the cypress hedge before the initial damage episode.
The judgment has been welcomed by claimants - it challenged the perceived immunity of residential homeowners and seemingly reopened a door which many felt had been closed following Berent v Family Mosaic Housing & London Borough of Islington  EWCA Civ 961.
In Berent, the court held - in respect of plane trees around 12 metres from the claimant’s property - that damage was not a real risk prior to actual notification/presentation of sufficient evidence. Berent was a sea change; prior to this, such claims were usually presented as strict liability.
Khan thus raises a number of concerns. The court reiterated that the standard of knowledge is not expert level but the implication is that Mrs Kane ought to have appreciated the root spread/water uptake levels of the cypress. Given the acknowledgement in Berent (first instance) that prior attempts to accurately predict root spread patterns with the assistance of experts had failed, is the decision in Khan inconsistent with the current approach?
Impact and Future
Since the judgment in Khan, we have seen an increasing number of cases where claimants appear to indiscriminately rely on the case regardless of the facts.
Written by Mark Maclean, solicitor
It is important to appreciate that foreseeability is invariably fact specific, rendering the enquiry process inherently unpredictable. Indeed, the Court in Khan emphasised this at para 54: “…As the authorities show, much depends on the particular facts of each case…” For this reason such cases cannot truly offer genuine precedent value.
If Khan can support one principle, it is that actual notice may not be a prerequisite for foreseeability in tree root nuisance cases. Nonetheless, we would argue it is only in the most exceptional cases that such a finding is suitable. The facts of Khan are extreme; by comparison half a metre is less than the length of an average arm. This is exceptionally close for a 10 metre tall, dominating hedge.
In the remainder of cases, Berent offers insight into the Court of Appeal’s rationale. If vegetation is not exceptionally close and there have been no prior issues/reports/claims, a reasonable starting position for triggering a duty may well be actual notification. It’s equally relevant that the oak tree in Khan did not present a real risk.
Whilst there are unfortunately no hard and fast rules, claimants and defendants ought to consider the limits on Khan and not overlook the value of Berent.