No it’s not a reference to that fantastic rock track by Rush (always worth a listen to it though).
And I am guessing that’s how Mrs Robbins felt as well.
Her house was next to a local authority park.
There was a row of poplar trees in the park, approximately 30 metres from an extension to the rear of the house.
A neighbour had made a claim in 1996/97 for subsidence damage caused by the trees.
As a result the Authority had carried out works in 1998 to reduce the crowns of the trees and also planned to do other works in the future which were never carried out.
The judge hearing the case at first hand held that tree roots were responsible, as they had drawn water from the soil under and around the foundations for Mrs R’s property.
Strangely the Judge said that, even though the works were not done since 1998, had the programmed works been done he found the damage would still have happened.
So what did the Council do wrong – you can hear them still asking themselves that.
The Council appealed saying the judge :
(i) had applied the correct causation test when holding that the local authority was liable for the damage, given his finding that the reduction programme would have had no effect;
(ii) was right to use his finding that very severe reduction would probably have been undertaken had the 2006 work been done earlier to hold that the damage would have been avoided had the local authority done the work it should have;
(iii) was right to infer that hypothetical contractors undertaking reduction in 2002 to 2006 would have gone beyond their instructions and effected a greater than 25 per cent reduction, as the actual contractors had in September 2006;
(iv) was right to hold that the 2003 damage would have been avoided by a three or four yearly 25 per cent reduction started in 1998.
The Court of Appeal dealt with the case and decided that
1) and 2) together.
The first and second issues could be dealt with together. The logic of the local authority’s first ground was appealing but it was important to first identify the local authority’s duty and the breaches of that duty held to have been established.
They said that the duty was, from 1998, to take such steps as were reasonably required to prevent damage being caused to Mrs R’s property by the tree roots.
The duty was not necessarily to undertake any specific programme of works.
The works referred to by the judge were simply possible ways in which the duty could have been discharged.
The breach of duty held to have been established was the failure to take reasonable steps to put in place, and carry out, a programme of reduction from 1998 onwards.
Having held that the damage was foreseeable, the previous Court held that it would have been reasonable for the local authority to have acted in that way.
Taking that all together, the local authority’s arguments on the first and second grounds were irrelevant; the judge plainly found that the failure to put in place any programme of cyclical pruning was responsible for the damage in 2003 and 2006.
As the local authority had done absolutely nothing between 1998 and 2006, that was not a surprising conclusion.
However, with regard to the alleged failure to apply the proper causation test, the breach of duty was in not doing anything.
The judge was justified on the facts, and as a matter of the proper application of the rules of causation, in asking what the local authority would in fact have done had it taken reasonable steps to prevent the damage.
The local authority’s error was in assuming the judge had found that its duty was simply to undertake a particular 25 per cent reduction programme, and that its breach was its failure to undertake such a regime.
The Court of Appeal said the original Judge was spot on and could not be criticised
(3) The judge having heard the evidence was perfectly justified in inferring that, if the reduction works had taken place from 1998 onwards, they would, on a balance of probabilities, have been undertaken more severely than the later works orders envisaged
(4) The judge was also entitled to find that the breach of duty established had caused the 2003 damage.
So after all of that the Council were at fault and Mrs R could get compensation of the damage done.
What seems to have scuppered the Council here was that they did all the hard work of doing their risk assessments and planning but simply didn’t carry it into place in the future, and had they done that, they would have realised they would have needed to do more as things went on.
An expensive mistake at the end of the day but a happy ending for Mrs R.
If you need any help about damage to your property or house then please call Russell Jones or the dispute team on 01623 451111