Summer is almost here, at last!

A time for turning our thoughts towards our gardens and parks. A time for outdoors action. A time for wondering if this year will see us all suffering from a heat wave and an extended dry spell.

A time for worrying that this year will be the “event year” so long anticipated by those dealing with subsidence claims. A time when building insurers and all those dealing with subsidence claims feel under increasing pressure to ensure that all those tree owning local authorities, companies and private individuals notified in the autumn now get on and manage their trees, so that they can repair their Insured’s houses before anything else happens this summer! A time for liability insurers to get some good, professional, balanced advice perhaps?

So what are the benefits to using a professionally qualified and suitably experienced adjuster/surveyor to handle your tree root liability claims?

1. Identify potential claim savings by being involved with early mitigation measures, encouraging the claimant’s advisers not to press for a “scorched earth” policy where only tree removal will suffice, whatever the merits of reduction or dangers of heave.

2. Gain an early and accurate diagnosis of the cause of the claimant’s subsidence/tree root damage from on site observations based upon many years of experience;

3. Having an important “bridge” negotiator, advocate and between the tree owners and the claimants;

4: To help determine which trees need to be cut or felled, if any;

5: Having someone with experience of the whole tree root claims cycle from offering mitigation advice and negotiating with the claimant’s mitigation team, through the post tree works, monitoring  and repairs phase into dealing with the actual quantum claim which, nowadays, is usually received from the third party solicitors and requires sound knowledge of common law, and Civil Procedure rules.

6. Both provided with a full and detailed report on the matter looking at both the claimants and the defendants side of the case, with full sets of photographs and an annotated site plan;

7. Reduction in the anxiety levels often seen by those attempting to unravel these complex claims, particularly amongst the smaller commercial companies and local authorities, parish and town councils;

8. Professional assessment of quantum in relation to either direct mechanical damage or indirect subsidence repairs costs and fees.

But how should a tree root liability claim be investigated and by whom? Such claims are often particularly complex and lengthy. But handled properly they can be controlled and the claim spend reduced.

A tree root liability adjuster must have a good grounding in law and the construction of buildings. They must create and maintain a good working relationship with the insurer/broker/TPA and the Insured, and be able to get on with and be respected by the third party representatives and their mitigation departments, engineers and surveyors.

Most parties appreciate that claims of this nature are long tail with a flurry of activity at the beginning and the end; with often little happening during the intervening period. This is particularly true if action has been taken to fell or remove the implicated tree/s, the cracks are being monitored or lengthy/complex repairs are being undertaken.

The average lifecycle for a tree root claim is about 18 months. Claims involving direct mechanical damage to walls, structures and driveways will be much quicker, indirect subsidence damage often longer.

Site visits on tree root claims are desirable. Desk handling can overlook essential topographical and vegetation features that could shift the emphasis away from the Insured’s trees. Information can be readily gleaned from the homeowner about date of purchase, discovery of damage, previous claims, extensions, basements, planting of trees etc The position or existence of third party trees needs to be noted accurately. We have investigated claims where only the local authority trees have been recorded, and where equally large third party trees at the same range have been completely and inexplicably overlooked. A plan should be drawn up from accurate site notes and helpfully annotated.

Causation is important. Are there any other causes of cracking that are more likely to result in this particular pattern of damage, other than the tree/s in question? To assess causation accurately and with confidence requires a good deal of adjusting and surveying experience along with an in- depth knowledge of building construction and an appreciation of how different materials react to drying, wetting and thermal changes. Third party adjusters don’t always diagnose correctly and we have known a first party claim for subsidence to be accepted when it is clearly a lack of lateral restraint for example. Other causes of cracking are numerous including rotten lintels, shrinkage, settlement, calcium silicate bricks and defective drains.

The precise scope of damage needs to be recorded for reference later when repair schedules and costs are presented by third party solicitors.

Assessment of technical evidence follows. An analysis of the site investigation report, soil tests, root identification will be thoroughly undertaken, and the existence or otherwise of shrinkable clay subsoil and desiccation ascertained and calculated by careful and experienced analysis of all the various reports available. Monitoring data will be reviewed and interpreted. Tree maintenance and mitigation programmes will be considered too.

Only following completion of this complex investigation matrix can potential liability be properly considered.

So what should local authority and other publicly managed tree owners be doing at this time of year? Here are a few suggestions:

  •  Felling of reducing all those correctly implicated trees from last summer/ autumn’s claims where this is deemed necessary by their own insurer’s advisers;

  • Identifying “Hot Spot’ areas and focussing their resources on the trees in those areas;

  • Assessing budgets for Tree officers and Insurance Departments to make sure necessary and agreed works are undertaken swiftly;

  • Meeting adjusting/ insurance/ Tree Officer teams to discuss the present position around mitigation works;

Trees do need some maintenance. They shed leaves every year, which have to be swept up, and trees which are diseased, dangerous, dead or are proven to be causing subsidence have to be cut back or even cut down. A trees amenity value to the area (CAVAT) should be considered in addition to financial implications.

Legal liability, as determined by case law, particularly against local authorities and other public bodies, develops very slowly. It is my wish that there will be claims where insurers or tree owning defendants are strong enough to take the matter to court to determine liability.

I am particularly interested in cases where more modern structures (often extensions/ conservatories) have been built with inadequate foundations near trees. Existing case law suggests that inadequate foundations is no defence (Bunclark v Hertfordshire County Council (1977)), neither is the fact that the tree was there first (McCombe v Read (1955)). My hope is that these older decisions will not be upheld for a modern property whose foundations failed to comply with the standards in force at the time of construction, and where vegetation was already present.

There is some glimmer of hope here. In Saddiqui v London Borough of Hillingdon (2003) the judge said that “..modern standards of construction can be expected to take account of obvious hazards in the vicinity of the structure to be built…”. But sadly cases are few and far between and claims against local authority tree owners where small extensions are built with shallow foundations proliferate.

My hope is that, with ever more of us living in urban areas (around 82% currently) and many more of us spending an ever higher proportion of our daily lives in towns cities, we will all learn to tolerate and enjoy the existence of street trees and accept that they play a vital part in our modern street scene.

Around the world trees are being lost through climate change, logging and deforestation. Trees in this country are threatened by a catalogue of diseases, pathogens and conditions such as ash dieback, sudden oak death, the oak processionary moth, plane tree wilt, the pine tree lappet moth, Asian longhorn beetle, bleeding chestnut canker and so on.

My goal is to ensure that any liability for tree root nuisance is properly identified, accepted and acted upon in a way that, not only protects the position of the tree owner and their insurer, but also preserves the future of the urban forest for the next generation.

Authored by:

Jeremy Carpenter BSc, FRICS, FCILA

Tree Root Liability Specialist

QuestGates Ltd

Benchmark House

Folds Points

Bolton

Greater Manchester

BL1  2RZ

M: 07595 449667

E: Jeremy.carpenter@questgates.co.uk

Jeremy has over 30 years experience of subsidence claims and spent the last 15 years defending over 2000 tree root liability claims.

An abridged version of this article was posted as a Post Magazine blog on Friday 18th May