Damage to house caused by oak tree roots from council path

Dr_Wu

Hi

My elderly in-laws are in a bit of a predicament at the moment. There is subsidence causing the extension to their privately owned house to sink a bit (cracks on wall, uneven floor etc). The current insurance company, Saga reckon it is caused by the roots from an oak tree at the back of a house on a council-owned canal path and are carrying out some soil tests etc to confirm.

My mother in law actually wrote to the council expressing her concerns about the proximity of the tree to her property about 20 years ago but they refused to act. At the same time (20 years ago) she paid for a structural engineers report that concluded that there wasn't a serious problem and just patched the crack that had appeared up!!

Now Saga are saying that because the issue has been going on since way before they were the insurers for the property that they will not pay to rectify any damage (sadly my M in L was honest and told Saga about the report 20 years old report)

My in laws are not wealthy people and are well into their 80's. They have been informally advised that the council are unlikely to pay for any repairs even though the offending tree is on their property (the canal path) and they were informed about the concerns my in laws had and now it looks like their insurers have found a way out of paying on the claim.

Does anyone have any suggestions regarding what my in laws might reasonably do next and who (if anyone) is liable for the cost of repairs?

Thanks in advance, hope this is in the correct forum

subjecttocontract

Local Councils have insurance to cover them for claims such as this. Contact the Council and your local councillor who should ensure its dealt with quickly.

Dr_Wu

Local councillor, thanks, hadn't thought of approaching him/her, good call, thanks!

Section62

Dr_Wu said:

Local councillor, thanks, hadn't thought of approaching him/her, good call, thanks!

In a case like this the local councillor can't do anything other than pass your enquiry on to the relevant department.

You might be better off leaving contact with them until you've got to a dead end with the officers, then approach them as if it were an appeal stage (it won't be, but the councillor can ask officers "Are you sure about this?")

Is it definite the land belongs to the council?  Most canals are the responsibility of the Canal & River Trust, and that responsibility typically extends to the towpaths, embankments, bridges etc.

https://canalrivertrust.org.uk/

Dr_Wu

Section62 said:

Dr_Wu said:

Local councillor, thanks, hadn't thought of approaching him/her, good call, thanks!

In a case like this the local councillor can't do anything other than pass your enquiry on to the relevant department.

You might be better off leaving contact with them until you've got to a dead end with the officers, then approach them as if it were an appeal stage (it won't be, but the councillor can ask officers "Are you sure about this?")

Is it definite the land belongs to the council?  Most canals are the responsibility of the Canal & River Trust, and that responsibility typically extends to the towpaths, embankments, bridges etc.

https://canalrivertrust.org.uk/

Thanks, just checked with the in laws and the tree is not on the actual canal towpath but on a small path that leads to the towpath, so probably is the council's land

daivid

Does their home insurance include legal cover? The damage may not be covered directly as it was a pre-existing risk however the issue of trying to claim from a 3rd party may still be covered.

Eldi_Dos

@ Dr-Wu,
Do you still have the report that the structural engineers made twenty years ago, might be worth checking if a indemnity insurance is included with the report.

Section62

Dr_Wu said:

Section62 said:

Dr_Wu said:

Local councillor, thanks, hadn't thought of approaching him/her, good call, thanks!

In a case like this the local councillor can't do anything other than pass your enquiry on to the relevant department.

You might be better off leaving contact with them until you've got to a dead end with the officers, then approach them as if it were an appeal stage (it won't be, but the councillor can ask officers "Are you sure about this?")

Is it definite the land belongs to the council?  Most canals are the responsibility of the Canal & River Trust, and that responsibility typically extends to the towpaths, embankments, bridges etc.

https://canalrivertrust.org.uk/

Thanks, just checked with the in laws and the tree is not on the actual canal towpath but on a small path that leads to the towpath, so probably is the council's land

Could still be CRT land.  And might explain why the council are saying they aren't liable themselves.

subjecttocontract

I've had a similar problem with property damage caused by a tree on Council owned land. The Council provided me with a claims form, details of their insurers and a request to obtain 3 quotes for remedial work. 

They paid me a cheque for the lowest of the 3 quotes but did not remove the tree. I got my councillor involved and told him the Council were likely to be paying for repairs regularly if the tree stays......eventually they removed the tree.

Annemos

Oh dear. I am very sorry to hear this. Just throwing some thoughts around here. Assuming it stands on the Council Land. 

1.  I believe there is case law that says a Council is not liable for damage, if damage could not have been foreseen.

If the tree is very close and/or very large, then there would be a debate as to whether they should have foreseen that damage would occur. Councils are held to a higher standard that regular homeowners as regards having sufficient knowledge to assess that risk. If other properties very close-by have also subsided, then that also strengthens the homeowners' case against the Council. 

The problem we homeowners have, is how do we take on such a dispute, as we don't have the funds to manage such as legal case. And would we win against a Council? 

(From memory... does Saga have a clause in their insurance policies, that says they do not cover legal advice relating to Subsidence?) 

2.   But if Saga does their analysis and does come up with the opinion, that it is indeed the Tree that has caused the Subsidence. Now the Council ARE aware that the tree is causing damage and they have to do something about it, because any future damage WILL be the Council's responsibility. So they have to look at what they are going to do to prevent it causing more damage. 

What they would do could depend on whether it is a protected tree. Also it may not be advisable to take the tree down, if there is a risk of heave. (Heave can occur, for example, if the Tree is older than the property. Heave is the opposite of Subsidence.... the ground swells after tree removal and damages the property in the other direction.)

So the Council might then have to consider such things as a Root Barrier if feasible and/or a very regular crown reduction of the Tree, to see if they are sufficient to stop the damage. (If none of these things are found to have worked, then they could end up having to do an underpinning or void injection if the tree is being retained?) 

I feel one would have to get a Solicitor to handle such a letter to the Council. This should be accompanied by a Saga report or a Structural Engineer Report. 

3. Then the property should be monitored to see if their remedial tree work has worked (crack-monitoring). Then repairs can be considered. 

One can also find that in the winter, the cracks close up as the tree stops taking out moisture and we get the wet weather replenishing the soil. 



These are my thoughts. Please comment, if anyone feels they are not relevant or correct. 

Section62

Annemos said:

2.   But if Saga does their analysis and does come up with the opinion, that it is indeed the Tree that has caused the Subsidence. Now the Council ARE aware that the tree is causing damage and they have to do something about it, because any future damage WILL be the Council's responsibility. So they have to look at what they are going to do to prevent it causing more damage. 

If Saga employed/paid for reports to be done then it would just be an 'opinion' as you say.

The council could have their own report done which says the opposite.  The council would be aware of the claim (but then they already are) but that doesn't mean they have to do anything.  It won't be the council's responsibility unless they agree, or are held liable by a court.

subjecttocontract raises some interesting points.  In my experience, if a council feels it is responsible for tree damage then it will do something about it quite willingly.  The fact they haven't in this case is one of the things which makes me wonder whether the tree belongs to someone else. (councils often self-insure and have in-house insurance teams who will manage claims of this type)