The Court of Appeal have upheld the decision of the High Court to award a landowner £150,000 in compensation for damage caused to her property by trees growing at least 33 metres away in a local park.

Background

Mrs Robbins was not the first resident to bring a claim for property damage as a result of the trees growing in Danson Park in Welling, Kent.  Following a similar claim in 1996/7, the Council undertook works to reduce the crowns of the trees in 1998. Further works orders were issued in 2004 and 2005, but no reduction was carried out. Finally, in 2006, an extensive crown reduction was performed on the trees. The damage to Mrs Robbins’ property occurred between 2003 and 2006; she issued proceedings in 2009.

At first instance the High Court ruled that the local authority had been aware of the damage the trees could cause, and that appropriate measures should have been taken to limit the size of the trees, and therefore limit the damage that would be caused by their roots. Furthermore, following the initial works in 1998, it would have been reasonable for the Council to have then begun a programme of cyclical reduction, whereby the crowns of the trees were reduced by 25% every three years. Had this programme been in place, the experts carrying out the works would have identified any need for an extensive reduction (such as that performed in 2006) and carried this out at an earlier stage.

In their appeal, the Council asserted that had this cyclical programme been in place and the reductions of 25% been carried out every 3 years, the trees would still not have been sufficiently pruned to prevent the damage to Mrs Robbins’ property. In addition, the court was incorrect in its assumption that hypothetical contractors pruning the trees every 3 years would have gone beyond their instructions and effected a reduction that was greater than 25%. On the basis of these facts, the Council argued that the court at first instance had been wrong to apply Bolitho v City and Hackney HA (1998) on the issue of causation.

Court of Appeal’s decision

The appeal was dismissed. The Court of Appeal emphasised that the accepted duty of the Council was to take such steps as were reasonably required to prevent damage to the property. The duty was not to undertake any specific programme of work, and the cyclical works described by the judge were merely a suggestion of what could have been done by the Council to satisfy their duty. It was the failure of the Council to take any action which was relevant to the finding of breach, and therefore any causation arguments advanced in relation to the methods or particulars of the tree reduction were not relevant.

The Court of Appeal found that the correct test for causation, the Bolitho test, had been applied by the first instance judge, asking what the local authority would in fact have done had it taken reasonable steps to prevent the damage. The Court of Appeal also found that the first instance judge had been perfectly justified in inferring that, on the balance of probabilities, the hypothetical contractors pruning the trees every 3 years would have gone beyond their instructions and undertaken a more severe reduction than instructed.

Comment

The implication of the appeal process here seems to be that, when raising arguments in relation to causation, it is imperative to understand the exact nature of the breach of duty alleged. In this case, the breach of duty arose not because the Council had failed to undertake a specific programme of works, but because they had not undertaken any works during the period 1998 – 2006.  

Further reading: Robbins –v- Bexley London Borough Council [2013] EWCA Civ 1233

Our Law-Now on the first instance judgment can be found here.