What is the law surrounding tree root damage to property? Author: Sarah Dodd, Founder & Director at Tree Law, takes an in-depth look here.
In recent years, the landscape of home insurance claims has been shifting, quite literally. The culprit? Our changing climate. From flooding to storm damage, burst underground pipes to tree root subsidence, the impact of climate change on insurance claims is becoming increasingly evident. However, it’s the latter—tree root subsidence—that warrants particular attention due to its unique intersection with environmental concerns.
Tree root subsidence occurs where properties are built on a shrinkable clay soil and roots encroach beneath foundations, removing moisture from the soil during the summer causing the volume of the soil to reduce. This reduction causes the foundations to move downwards and cracks to appear in areas of weakness, such as around window or door frames.
As climate change results in our summers getting hotter and drier, it is causing an increase in not only the number of tree root subsidence claims but the location is broadening.
Tree root subsidence has characteristically been an issue for London and South East England, where shrinkable clay soils and the hottest of the UK’s summer temperatures have led to more vulnerable properties. However, climate change is seeing the pattern of claims moving to ‘new’ areas, in more northernly parts of the country, which haven’t previously been as affected.
The Environmental Dilemma
The unique contradiction with tree root subsidence claims and climate change is that the traditional approach of the insurance industry to stop ongoing subsidence movement has been to remove the trees implicated in the damage.
This approach, however, poses an environmental dilemma: while removing trees may stabilise the property, it contributes to the loss of crucial benefits provided by trees (e.g. shade, pollution removal, and flood attenuation), which in turn contributes to the worsening of effects of climate change. A self perpetuating cycle.
It is also worth noting that the public’s understanding of the value of trees is heightened and the removal of trees is increasingly met with resistance.
When a property is found to be suffering from crack damage caused by tree root subsidence, the first thing that needs to be done is for the influence of the tree on the stability of the property to be removed. Traditionally, this has been done by insurers establishing which tree/s have caused the damage and remove those trees.
Once removed, the property will stabilise and crack repair works can go ahead to resolve the claim. However, this default position of tree removal is really no longer palatable for the following reasons:
· To cater for high claims numbers reports are often provided highlighting numerous trees for removal – as both a cause and a prevention against damage in the future. Whilst the law
allows a Claimant to seek ‘mitigation’ by tree removal, requesting large scale and poorly evidenced tree removal of numerous trees is not a proportionate request for mitigation.
· The balance between property damage and tree value is often skewed, with minor property damage prompting requests for significant tree removal, like an Oak tree. Yet, removing trees eliminates their ecosystem benefits, such as shade, pollution control, flood prevention, and mental well-being support, creating future problems.
· The growing awareness of trees’ value due to the climate crisis involves more stakeholders in decisions about tree removal. This includes local authorities who must consult residents before removing street trees under the Environment Act 2021, putting pressure on insurers and councils to consider alternatives.
· Remedial solutions exist to address property subsidence while preserving trees, offering a viable alternative to removal.
A ‘one size fits all’ approach doesn’t apply to all subsidence claims. We often hear that tree removal is the ‘most environmentally friendly solution’ to a subsidence claim. The alternative is said to be carbon-intensive concrete underpinning, however those comments are made with no careful calculation done to calculate whether that is correct.
When considering the carbon benefits of a tree (carbon sequestered in the tree itself and removed from the atmosphere) and the carbon implications of concrete underpinning, there will be cases where the carbon lost from tree removal will be significantly less that the carbon footprint of an alternative solution. However, currently no one is making that calculation.
Calculating The Carbon Footprint
Fortunately, advancements in technology and methodology offer viable alternatives to the conventional approach. Remedial solutions exist that can resolve subsidence issues while allowing trees to remain intact. Tools now available that put some science and calculations around the carbon footprint of a claim, allowing insurers to review the environmental impact of all viable solutions. For example Tree Law’s Subsidence Calculator provides data-driven insights that enables informed decision-making, allowing for a more nuanced approach to subsidence mitigation.
It is tools like these that challenge the prevailing notion that tree removal is inherently environmentally friendly, and instead offers a more comprehensive assessment of the carbon implications of all solutions.
Of course, underpinning all of this discussion is the Law governing subsidence claims. This is where the final piece in the jigsaw of change is needed.
While current laws uphold a claimant’s right to mitigate damage by removing trees, there is a growing need to reconsider whether tree removal should remain the default solution. The evolving environmental discourse demands a re-evaluation of legal expectations, urging courts to recognise the value of retaining trees and explore alternative avenues for mitigation.
In essence, addressing the environmental impact of subsidence-related insurance claims necessitates a multifaceted approach. Insurers must embrace environmental considerations in their decision-making processes, leveraging tools like the Subsidence Calculator to assess the carbon footprint of proposed solutions. Simultaneously, stakeholders across the legal and regulatory landscape must reexamine existing frameworks to align with the imperatives of climate action and biodiversity conservation.
It’s time to recognise that our actions today will shape the resilience of our communities and ecosystems for generations to come. Let’s ensure that our response to subsidence challenges reflects our commitment to a greener, more equitable future.
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