This Practice Note discusses damage by tree roots, including the duty between neighbours, Foreseeability, causation, possible measures to minimise or prevent damage and remedies.
The leading case on damage to property caused by encroaching tree roots is DeLaware Mansions v Westminster County Council, in which the House of Lords stated that liability is to be determined by applying the concepts underlying the law of nuisance, namely reasonableness between neighbours (real and figurative) and reasonable foreseeability. The court confirmed that ‘the label nuisance or negligence is treated as of no real significance’ and that ‘the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it’.
In particular, liability is determined by the answers to the following questions:
what is the duty between neighbours with regard to trees?
did the roots of the tree cause damage to a neighbouring property?
was that harm reasonably foreseeable?
were there any practicable measures that
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