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Published 29 April 2020
Tree root subsidence damage to properties occurs when moisture is extracted from shrinkable soils by trees. Therefore it goes without saying that relatively dry winters followed by hot and dry summers are when surge events occur.
A surge year is a year which results in an upturn of claims being reported to insurers by 15% above the norm for the time of year. The last big surge years were 2003 and 2018. Local authority tree owners are still dealing with the backlog of claims following alleged damage in the summer of 2018 whether that be outstanding or disputed requests for mitigation or the defence of claims for damages from Claimant house owners.
Throughout the year, desiccation levels of soils are tracked. It went to press that April 2020 has been the hottest April in 361 years. This is causing early noises to be made about whether 2020 will be another surge event year. Desiccation levels at this point in the year are already tracking as dryer than at this point in both 2003 and 2018. Indications therefore point to a risk of a surge of claims this summer. We will know more over the next month, a critical time for desiccation levels as spring moves into summer.
If summer 2020 is or isn’t a surge year, this will be an extra ordinary year due to the fact that spring-summer is happening whilst under Government imposed lock-down due to the global pandemic of the Corona virus.
What legal implications will this have for tree owners? This is worth careful consideration and discussion.
Legal claims against local authority tree owners are in negligence and/or nuisance. The basis of the legal position is reasonableness between neighbours. There are two parts to this duty, the first is the general duty to maintain and prune trees on a cyclical basis, the second is the need to take more extensive action where an allegation is made that a tree is the cause of subsidence damage.
At the moment, due to the lockdown, it will not be possible to carry out cyclical tree maintenance or, indeed, to carry out any tree removal works. When considering what is reasonable in all the circumstances, being unable to carry out any works during lockdown must be reasonable (of course unless a tree poses an imminent threat to human safety).
Local authorities may leave themselves exposed to a risk of being liable to a greater extent of damage to Claimants’ properties if mitigation works cannot be carried out this summer. This will be made worse if this is a hot, dry summer as damage to properties could escalate quickly over the summer period.
The key to limiting risk is going to be formulating and documenting a tree management/mitigation policy in response to the Corona virus. Then, once lockdown is released, reviewing the missed cyclical tree maintenance and ensuring that future risk is reduced by catching up on missed tree maintenance.
The key to safeguarding the local authorities’ position is consideration of the situation, creating a policy, documentation of that policy and planning for the future after the Corona virus lockdown and social distancing measures are over.
Working together, in collaboration with other local authorities is a great way to ensure a consistent approach across the public sector, thereby reducing risk further.
The subsidence team is part of DACB Claims Solutions Group and is located across our Bristol, Birmingham and Newport offices. We are a team of 15 lawyers with particular expertise in managing claims which arise from allegations of subsidence damage. The team is headed up by Sarah Dodd who is a Partner and who sits as the Vice Chair of the industry body, the Subsidence Forum.
+44 (0)117 918 2128
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