UKTC Archive

Re: [EXTERNAL] RE: Subsidence where foundations less than 300mm deep

Subject: Re: [EXTERNAL] RE: Subsidence where foundations less than 300mm deep
From: Jerry Ross
Date: Sep 09 2020 16:23:35
"...The fact that courts have consistently sided with insurers against tree owners doesn't mean that the law is right...."


On 09/09/2020 17:12, Harrison, Sean wrote:
Jim,
It saddens me but have to agree with you (crumbs that sounds bad, let me 
clarify) It's your reference -'Patterson v Humberside City Council says that 
a tree need only be demonstrated to be A cause of damage, not THE cause'. 
That is what saddens me as it is the death knell to many a fine, healthy tree.

And as you say, One has to be stoic!

Sean

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Jim Quaife
Sent: 09 September 2020 12:55
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: [EXTERNAL] RE: Subsidence where foundations less than 300mm deep

Warning: email from outside of MVDC - if in any doubt do not open links or 
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The big problem with subs is that however lovely a tree might be, the UK is 
one of the most home ownership obsessed countries, and that relates to value. 
 A house is an investment as much as a home - full stop.
Insurance for subs only began in the 70s and claims have risen in direct 
relationship to dry summers.
Insurance is all about money and the way in which it provides comfort to the 
prospect of various risks.
So, a tree is implicated in damage to a house - what does that mean?  Well 
for one thing it means a challenge to the value of the building, and that can 
be quantified (often by nuance).  If the damage is not repaired and the tree 
remains, it will become worse - after all, the foundation is broken.
Choices?   1. Repair with tree removed, or 2, repair with tree retained.
Building insurance is usually a matter of making good and not introducing 
improvements.
The 2nd choice is more often than not expensive, and usually more than the 
cost of removing the tree.
Forget CAVAT.
Either the house owner owns the tree, (in which case the monetary value is 
irrelevant), or it is owned by another.  Patterson v Humberside City Council 
says that a tree need only be demonstrated to be A cause of damage, not THE 
cause.
Being the owner of a tree is actually a very onerous responsibility, but 
statistically they don't cause many serious problems.  If they did we 
probably wouldn't have so many.

Whereas every subs case I have dealt with is individual, overall there is a 
usually disconcerting  pattern.  I'm an optimist, and if building regs are 
adhered to one should expect foundations to be built properly, but that is 
not always the case, and of course new trees can be planted subsequently.

One has to be stoic!
Jim


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jerry Ross
Sent: 09 September 2020 09:33
To: UK Tree Care
Subject: Re: Subsidence where foundations less than 300mm deep

Liam, this is a VERY LA-oriented view.

"All I'm saying is that if trees are the cause of the damage and that it can be 
demonstrated that this is the case then why do so many arboriculturists find it 
difficult to be objective about it?"

(a) Because very often the subs companies have the heft, money and 
ruthlessness to bulldoze through cases with very little 'objective' evidence, 
especially where private individual are concerned (although LAs are not 
immune to fear of litigation) and (b) Because, objectively, TREES HAVE VALUE 
which is generally totally disregarded.

You go on: "as far as I can remember it has never successfully been used to defend 
against an application to fell a TPO tree causing subs or a cost claim against a local 
authority"

As I say, an extremely LA oriented view. Most of the cases I have dealt with 
over the years involve private individuals who are very attached to their 
trees and suddenly receive letters from a subs management company threatening 
all sorts of dire consequences if they don't fell their tree, despite as 
often as not having no clear evidence that the tree is the main, or even part 
of the problem (which itself is very often only minor).
The fact that courts have consistently sided with insurers against tree 
owners doesn't mean that the law is right.
(I sometimes wonder how many judges have agreeable properties situated in 
areas of clay in the home counties??)

As for the culpability of insurance companies, yes, the most egregious 
attempts to threaten, manipulate and blackmail tree owners have been done by 
subs management companies. But these are employed by insurance companies who 
sell these cases on to them so that they (the subs management companies) can 
make a profit. I've heard it described in all seriousness by someone who has 
had a long career in the business as little more than a cartel




On 09/09/2020 08:13, Liam McKarry wrote:
I'm not defending the insurance industry but I think that we as 
arboriculturists do get a bit exercised about this subsidence issue and take 
it very personally.

All I'm saying is that if trees are the cause of the damage and that it can 
be demonstrated that this is the case then why do so many arboriculturists 
find it difficult to be objective about it?

Why, when presented with evidence that shows shrinkable clay soils, cyclical 
patterns of movement and root id do we still say that the building is 
defective despite an engineer or surveyor saying it's the trees causing the 
damage? This is something I find particularly annoying as we seem to want to 
disregard the advice/expertise of another industry because it doesn't sit 
well with our like of trees. It's almost like we think that these people go 
out with some kind of tree hating agenda.

'...As far as I can see if my tree causes my house to subside, the only 
person to blame is the one that designed the foundations. Of course that 
person might have said these foundations are OK but don't let your Mulberry 
tree 5 metres away ever get to be more than 6 metres tall with a commensurate 
spread, but as far as I'm aware foundation-designers rarely say that...' 
Foundation depth and design is largely controlled by building control and 
will need to comply with the recommendations at that moment in time - the 
design will take into account the Mulberry tree 5 metres away (although I'm 
pretty sure most BC officers would tell the builder to get rid of the tree 
unless it's TPOd).

All I'm saying is that we should not get hung up on the inadequate
foundation argument because as far as I can remember it has never
successfully been used to defend against an application to fell a TPO
tree causing subs or a cost claim against a local authority - dwelling
on it delays the time taken to deal with the application/claim and
ultimately the person who suffers is the person with the damaged house


Regards

Liam McKarry
Arboricultural Officer (Planning)
Colchester Borough Council
Rowan House
33 Sheepen Road
Colchester
CO3 3WG
01206 XXXXXX



-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Bill Anderson
Sent: 08 September 2020 20:22
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Subsidence where foundations less than 300mm deep

This message originated Externally. Do not click links or open attachments 
unless you recognise the sender, were expecting it and know that the content 
is safe.

I don't think Law comes into it Liam. It's insurance industry practice, 
unless there's a dispute over who's tree it is that causes the problem and 
who should have done something to prevent it. As far as I can see if my tree 
causes my house to subside, the only person to blame is the one that designed 
the foundations. Of course that person might have said these foundations are 
OK but don't let your Mulberry tree 5 metres away ever get to be more than 6 
metres tall with a commensurate spread, but as far as I'm aware 
foundation-designers rarely say that. I'd agree entirely that growing a dirty 
great Oak tree hard against a wall ought to be an obvious no-no, but building 
something without foundations and then blaming a random nearby tree is just 
illogical.

And off-hand I bet the insurance industry spends more of our premiums on 
keeping their execs in Porsches and BMWs than it does on subsidence payouts!

Bill.


On Tue, 8 Sep 2020 at 19:47, Liam McKarry
<Liam.McKarry@xxxxxxxxxxx.gov.uk>
wrote:

Sorry Jerry I don’t agree - the cost of increased numbers of
insurance claims is met by premium prices going up; it’s a cost met by 
customers.

Liam McKarry
Arboricultural Officer (Planning)
01206 XXXXXX
________________________________
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info>
on behalf of Jerry Ross <trees@xxxxxxxxxx.co.uk>
Sent: Tuesday, September 8, 2020 7:34:27 PM
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Subsidence where foundations less than 300mm deep

This message originated Externally. Do not click links or open
attachments unless you recognise the sender, were expecting it and
know that the content is safe.

"we demonise the insurance industry for trying to minimise the cost
to their customer"


Delete 'customer'; substitute 'shareholder'.

  From my mobile
On 8 September 2020 18:43:44 Liam McKarry
<Liam.McKarry@xxxxxxxxxxx.gov.uk>
wrote:

Bill,

It’s merely a statement of how things are as per case law.

Even if the foundation is not deep enough, in the absence of tree
roots would the damage occur is one of the first questions asked.
I’m unaware that anyone has ever successfully challenged it in law
and therefore, however illogical it is, we just have to deal with it.

Subsidence is a divisive subject that as an industry we get
ourselves in knots over (unnecessarily in my opinion) and have never
really understood that at the bottom of this is usually a person who
just wants their house fixed and  (how much flak will I get for that
one!)



Liam McKarry
Arboricultural Officer (Planning)
01206 XXXXXX
________________________________
From: uktc-request@xxxxxx.tree-care.info <
uktc-request@xxxxxx.tree-care.info>
on behalf of Bill Anderson <anderson.arb.original@xxxxxx.com>
Sent: Tuesday, September 8, 2020 6:18:40 PM
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Subsidence where foundations less than 300mm deep

This message originated Externally. Do not click links or open
attachments
unless you recognise the sender, were expecting it and know that the
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"Whether we like it or not inadequate foundations is rarely a good
defence
if the property is on a clay soil with a cyclical pattern of movement"

I don't see any logic in this statement Liam; why bother with
foundations at all? If the foundation is not adequate for the soil
type, doesn't meet spec, (specification) it's not really fair to even call it 
a foundation.
However if the foundation does meet the spec and still moves then
yes remove the tree, and hope that another one doesn't grow.
Notwithstanding the fact that if the foundation meets spec and still
the building cracks then the spec must have been wrong.

I'm not saying your quotation isn't an accurate summary of what
happens, just that it's not really logical, and certainly not fair.
Jerry has
summed
it up really eloquently in my opinion.



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