Question: What are the procedures to be followed and the liabilities of Borough owned tree roots causing damage to a household in the Havant Borough in Hampshire England?
In England, including Havant Borough, the law governing damage caused by council-owned tree roots is based on the general law of nuisance and negligence, together with the council’s published tree management policies.
If a tree owned by Havant Borough Council is causing structural damage to your home, the council is not automatically liable simply because it owns the tree. Liability generally arises where:
- the council owns or is responsible for the tree;
- the roots are causing actual damage (for example, subsidence, cracked foundations, damaged drains or boundary walls);
- the council knew, or ought reasonably to have known, of the problem; and
- after being notified, it failed to take reasonable steps to prevent or reduce the damage.
Havant Borough Council’s published policy states that where it can be demonstrated that a council-owned tree is the primary cause of damage to property, it will act to rectify the problem. It also asks residents to report concerns about trees on council land through its Customer Services.
Recommended procedure
- Notify the council immediately
- Report the tree in writing.
- Include photographs, the tree’s location, and details of the damage.
- Keep copies of all correspondence.
- Notify your buildings insurer
- Most subsidence claims should first be reported to your home insurer.
- The insurer will usually appoint a structural engineer and arboricultural expert.
- If liability is established, the insurer may recover its costs from the council.
- Obtain expert evidence
If structural damage is alleged, evidence normally includes:- Structural engineer’s report.
- Arboricultural report.
- Root identification.
- Soil analysis where subsidence is involved.
- Foundation details.
- Monitoring of movement where appropriate.
Havant Borough Council’s own guidance on trees and subsidence lists the types of evidence expected before significant action such as removal of a tree is considered.
The council’s liabilities
If expert evidence demonstrates that the council’s tree is the effective cause of the damage, the council may become liable for:
- reasonable repair costs;
- associated investigation costs;
- continuing damage after it has been placed on notice;
- in some circumstances, legal costs if litigation becomes necessary.
However, liability is not automatic. The council may defend a claim by arguing that:
- the building movement has another cause;
- defective drains caused root ingress rather than the roots causing the defect;
- shrinkable clay soils and drought conditions are the primary cause;
- the damage pre-dated notification;
- another nearby tree is responsible.
Can you cut the roots yourself?
English common law generally allows a landowner to remove encroaching roots back to the boundary. However, this right carries risks:
- you must not trespass onto council land;
- you may become liable if unnecessary root cutting destabilises or kills the tree;
- if the tree is protected by a Tree Preservation Order or is in a Conservation Area, additional legal restrictions may apply before work is carried out.
For council-owned trees, it is usually advisable not to cut significant roots without the council’s written agreement and appropriate arboricultural advice.
Practical advice
If the damage appears structural:
- notify both the council and your insurer immediately;
- avoid carrying out remedial works until the cause has been investigated;
- keep a dated record of worsening cracks and movement;
- obtain independent engineering and arboricultural reports if your insurer does not arrange them.
If the council refuses liability despite strong expert evidence, you may pursue compensation through its insurance claims process and, if necessary, the courts under the law of private nuisance or negligence.
Questions:
- What evidence is strongest in English courts;
- The relevant case law (such as Delaware Mansions Ltd v Westminster City Council and Leakey v National Trust);
- How to present a claim to maximise the likelihood of the council accepting liability.
If your claim concerns Havant Borough Council and damage caused by a council-owned tree, English courts place considerable weight on expert evidence rather than the mere existence of roots near your property. The burden is generally on the claimant to prove, on the balance of probabilities, that the council’s tree caused the damage and that the council is legally responsible.
1. The strongest evidence in English courts
The following evidence carries the greatest weight:
| Evidence | Importance |
| Chartered Structural Engineer’s Report | Essential |
| Arboricultural Consultant’s Report | Essential |
| Laboratory Root Identification | Very Strong |
| Soil Investigation (plasticity and moisture tests) | Very Strong |
| Foundation Investigation | Very Strong |
| Level Monitoring (crack monitoring) | Strong |
| Historical weather data (drought periods) | Supporting |
| Photographs over time | Supporting |
| Council correspondence showing prior notice | Extremely important |
A. Structural Engineer’s Report
This should establish:
- nature of the damage
- whether movement is ongoing
- whether the damage is consistent with subsidence
- exclusion of alternative causes
- estimated repair costs
The expert should comply with the requirements for expert evidence under the Civil Procedure Rules, including an independent duty to the court.
B. Arboricultural Report
Prepared by an independent arboricultural consultant.
It should identify:
- species
- age
- height
- expected rooting pattern
- moisture demand
- distance from foundations
- root influence zone
- whether pruning would solve the problem
- whether removal is necessary
The report should specifically explain why this particular tree is responsible rather than another tree nearby.
C. Root Identification
Courts like objective evidence.
Typical investigation:
- roots excavated beside foundations
- samples taken
- microscopic identification
- DNA identification where appropriate
If the roots recovered are from the council’s tree, that is persuasive evidence.
D. Soil Analysis
Especially important on shrinkable clay.
Tests include:
- Plasticity Index
- Moisture content
- Clay type
- Seasonal moisture variation
Without suitable clay, tree-related subsidence becomes much harder to prove.
E. Foundation Investigation
Needed to establish:
- depth
- construction
- whether foundations comply with standards
- whether inadequate foundations contributed to the problem
F. Notice to the Council
This is often the deciding issue.
Keep copies of:
- emails
- letters
- online reports
- photographs
- dates
Once the council has been put on notice, it may become liable for continuing damage if it fails to act reasonably.
2. Key English case law
Delaware Mansions Ltd v Westminster City Council
This is probably the leading authority.
Facts
Tree roots from council trees caused subsidence.
The council argued it should not pay.
The House of Lords disagreed.
Principle
Once the landowner:
- knows (or ought to know)
- that their tree is causing damage,
they must take reasonable steps.
Failure to do so creates liability.
The council became liable from the date it had notice, not necessarily from when the damage first began.
This case is extremely helpful where:
- the council has received complaints,
- delayed acting,
- ignored expert reports.
Leakey v National Trust
Although not a tree case, it established an important principle.
The court held:
A landowner who knows of a natural hazard affecting neighbours must do what is reasonable to prevent foreseeable damage.
The standard is reasonableness rather than perfection.
This principle underpins many tree-root claims.
Sedleigh-Denfield v O’Callaghan
Established that a landowner who knows of a nuisance and adopts or continues it may become liable.
Councils are treated similarly.
Cambridge Water Co Ltd v Eastern Counties Leather plc
Introduced the importance of foreseeability in nuisance claims.
The damage must have been reasonably foreseeable.
Network Rail Infrastructure Ltd v Williams
Confirmed that vegetation can amount to an actionable nuisance where it causes interference with neighbouring land.
Although involving invasive vegetation rather than subsidence, it reinforces that landowners (including public bodies) may be liable where vegetation causes foreseeable harm.
3. What persuades councils to settle?
Councils rarely settle because someone complains.
They settle when they see:
- independent expert reports
- clear causation
- proof they were notified
- evidence repairs are reasonable
- a realistic prospect of losing in court.
4. Presenting the strongest claim
A well-organised claim might include:
- Cover letter.
- Timeline of events.
- Photographs.
- Structural engineer’s report.
- Arboricultural report.
- Root identification report.
- Soil report.
- Repair estimate.
- Evidence of insurance involvement.
- Copies of all correspondence with the council.
5. The legal test the court applies
The court generally considers these questions:
- Does the council own or control the tree?
- Has the claimant proved that the tree caused the damage?
- Was the damage reasonably foreseeable?
- Did the council know, or ought it to have known, about the risk?
- Did the council act reasonably after receiving notice?
- What loss resulted from any unreasonable failure to act?
If the answer to each is “yes,” liability is significantly more likely.
6. Practical tips for maximising the likelihood of acceptance
- Send a Letter of Claim setting out the facts, legal basis, and losses, rather than relying on informal complaints.
- Include all expert evidence up front, especially if prepared independently of your insurer.
- Explain why alternative causes (such as defective drains or poor foundations) have been excluded.
- Ask the council to preserve its inspection records, maintenance history, and any previous complaints about the tree.
- Keep all communication in writing and maintain a chronological file.
If the council denies liability without adequately addressing the evidence, that correspondence can become important if the matter proceeds to litigation or settlement discussions.
A professionally prepared claim supported by engineering, arboricultural, and laboratory evidence is far more likely to succeed than one based solely on photographs or observations of roots near the property.
