Legal decision regarding alleged subsidence involving trees

Berent v Family Mosaic Housing and LB Islington

This is a very important and welcome decision regarding claims of alleged subsidence involving trees. The judgement recognises the importance of urban trees and the social benefit that they bring. More importantly, it clarifies what 'foreseeability' actually means. This decision moves the perception away from the position that a tree on clay soil, near a building equals a 'reasonably foreseeable' risk, as had been previously presumed.

On 13 July 2012, the Court of Appeal found that neither Islington Council nor Family Mosaic (who owned the neighbouring property) could reasonably be expected to foresee that their trees might pose 'a real risk' of causing damage to the property until they had been notified that the property had suffered damage and reasonable evidence had been provided. Until that point, both Family Mosaic and Islington had satisfied their duty to eliminate or minimise potential nuisance and could not be held liable for prior damage as they had acted reasonably.

A more detailed analysis of the significance of this judgement can be found on the front page of the LTOA website at www.ltoa.org.uk.

Jake Tibbetts, chair of the LTOA said "I believe it remains critical that we assess our trees, our claims history and our soils and from that knowledge, identify areas which we consider to present real risk".