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Surveyors Report. Damage from a large tree. Claim for compensation in the County Court. Expert report and answer to questions put by an expert.

 

The tree compared to the property. A typical cypresses leylandii tree.

 

 

The proximity of the tree to the wall and garage.

 

The tree pushing against the juncture of the wall and garage.

 

Displacement of the wall which had caused the timber fence panel to buckle.

Buckling of the garage wall and fracturing. The walls has buckled rather than lean as the top of the wall is restrained by the garage roof structure pushing against the side of the bungalow

Lean of the garden wall which is not restrained at the top

The door frame has had to be planed to allow the door to close.

 

 

The leylandii tree trunk has pushed the concrete wall over.

 

More fracturing of the wall probably due to the roots of the tree.

 

The tree was planted in ground higher then the damaged property, the ground being restrained by a retaining wall. The garage was built after the tree was planted by either using the top of the retaining wall and lining it with blocks or  rebuilding the retaining wall as a garage. The owner of the tree tried to claim that the garage had been built to near to the tree. The argument failed and after some argument between solicitors and the two properties owners experts the owner of the tree paid for repair works to the garage.

 

Expert Report for the claimant.

14th February 2022

 

 

 

 

Dear Sirs

 

Summer Road

 

Thank you for your instruction to investigate structural movement of a garage at the above property.

 

Conflicts of Interest

 

I have not acted for either party before.

 

Qualifications

 

I am Steven John Macgregor Butler, a Member of the Royal Institution of Chartered Surveyors. I qualified in 1992 and have in excess of twenty years’ experience of surveying property for defects in the Midlands area. CV attached at Appendix 1.

 

Background

 

The owners of H    Mr and Mrs B claim that a large tree within the grounds of the adjacent property N   House has damaged their garage wall and a boundary wall. The damage to the wall and garage was first noticed about three years ago and has gradually developed. Prior reference to the photographs at Appendix 2 may assist the reader.

 

Inspection

 

The properties are bespoke detached properties on the south side of Summer Road. N   house is to the west of H . The ground level of N  House is about 1.0m high than H. The properties are separated by a masonry fronted wall that is believed about 230mm thick. The approximately 1.0m high base of the wall acts as a retaining wall for the higher ground at N   House. I understand from Mr B that the wall was constructed about ten years ago to replace an older wall.

 

On top of the wall separating the rear gardens of the properties there are approximately 1.7m tall interwoven timber panels are fixed between masonry posts. The new wall has also used as the base of a tandem garage which leans against the bungalow at H    . The garage is about 2.5 m high where the foot of the roof is above the boundary wall.

 

Inspection shows:

 

That there is a tree of considerable hight with an approximately 0.75m diameter trunk that is bearing on the boundary wall and garage at their juncture.

 

It is clear from damage to the trunk of the tree that it has been bearing against the wall for some time and has started to envelop it.

 

The tree has displaced the masonry post of the wall immediately adjacent to the garage in both and easterly and northerly direction causing it to snap. The movement of the wall is such that it has buckled the timber fence panel and displaced the base of wall by about 50mm. The boundary wall separating the two gardens is significantly out of plumb for a distance of about 2.7m from the tree.

 

The garage door frame has also buckled so that the garage door now rubs against it even after the firm has been planned to some degree.

 

The internal face of the garage wall is buckled and has horizontal fractures in it for a distance of about 5.0m from the tree.

 

A small section of brickwork immediately adjacent to the door is displaced.

 

 

Analysis

 

The damage to the boundary wall and garage is consistent with a large object pushing against them.

 

I can think of no other potential cause of the failure.

 

All other parts of the garage and the boundary wall that are not near to the tree are approximately in plumb suggesting that there is no inherent defect in the construction of the garage and boundary wall.

 

 

 

 

 

Remedial Works

 

The load of the tree needs to be removed from the garage and boundary wall. Whether once the adjacent walls are demolished a vertical section and parts of the roots can be removed from the tree is a matter for an Arborologist.

 

In order to prevent further dmage by the tree and repair the garage and wall is likely that the following will be required:

 

Prop the garage roof for a length of about 5.0m

 

Demolish the garage wall for a length of about 5.0m and boundary wall for a length of about 2.7m. The bricks and blocks should be carefully removed cleaned and set aside so that the walls particularly the boundary wall can be re-built to match the existing.

 

Some propping of the exposed ground may be needed depending on its cohesiveness.

 

The tree trunk and roots will have to be cut back if the tree is not felled so that they cannot bear on the garage or wall again.

 

The garage and boundary wall will have to be rebuilt with water proof membrane on the garage section of the wall and a backfill of granular material to below the foundations of the garage and boundary wall to help with drainage.

 

A new garage door frame will be required.

 

The internal face of the garage wall will require painting to match the existing.

 

Costs

 

The Court should seek quotations as these types of bespoke works are difficult to price reliably.

 

Conclusion

 

The damage to the garage walls and boundary wall can only be caused by the tree. I can see no other potential cause of the damage and there is no evidence of a failure in the construction of the walls.

 

Whether the tree must be felled or part can be successfully removed is a matter for an Arborologist.

 

I expect that remedial works will be expensive due to the bespoke nature of the job.

 

Statement of Truth

 

This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.

 

I Steven JM Butler DECLARE THAT:

 

1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

 

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

 

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

 

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

 

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.

 

6. I have shown the sources of all information I have used.

 

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

 

8. I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

 

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

 

10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.

 

11. I understand that –

 

a. my report will form the evidence to be given under oath or affirmation;

 

b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

 

c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

 

d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

 

e. I may be required to attend Court to be cross-examined on my report; and

 

f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

 

STATEMENT OF TRUTH I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

 

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

 

Yours faithfully

 

Steve Butler

 

SJM Butler

 

Questions put to me by the defendants expert and answers

 

5th May 2022

 

 

 

Dear Sirs

 

H   Summer Road

 

Thank you for your instructions to answer questions from the defendant’s expert.

 

  1. . Does your expertise extend to structural design of retaining walls?

 

Irrelevant. I was not required to design the wall. I have however acted as expert in respect of two catastrophic retaining wall failures and consider the stability retaining walls frequently during property inspections.

 

The question is rather arrogant. It presumes that only somebody with the writers’ qualifications can design retaining walls. Design of retaining walls does not require membership of an approved body or particular qualifications.

 

  1. Do you agree that the presence of the tree pre-dates the work carried out by the

Claimants?

 

Agreed. What we do not know however is the diameter of the tree at the time of the garage’s construction.  Given that the tree is estimated to be fifty years and has a diameter of about 1.0m then its rate of growth is clearly substantial. The claimant could not envisage that the owner of the tree would neglect to manage it. The importance of managing the tree would have been apparent to the contientious owner who occasionally checked their boundaries.

 

  1. Do you agree that no excavation or indeed construction should be undertaken within a Root Protection Zone of a tree (RPZ)?

 

This is a matter of law given that the claimant has only excavated within his own boundaries. The writer of the questions suggest that the law makes us responsible for our neighbour’s failures.

 

Given that a root protection zone is 12 x the diameter of the trees approximately 1.0m diameter trunk the tree would require a root protection zone of 12.0m minimum. Presumably the claimant should demolish also his bungalow to accommodate the tee.

 

British Standard 5837:2012 which gives guidance on Root Protection Zones is a guide on how buildings can be constructed in harmony with trees. It has no statutory authority. It is useful for convincing Local Planning Authorities and clients that good practice has been followed to accommodate trees that the local authority or a client might consider to have amenity value.

 

In granting retrospective consent for the construction of the garage the local planning authority do not appear to have imposed any conditions in respect of the tree. There were no building regulation obligations in respect of the tree.

 

The tree is not subject to a TPO so it is unlikely that the claimant would have any obligation to follow BS 5837.

 

 

  1. Do you agree that the Claimants have not observed the RPZ

 

Answered above.

 

  1. Can you confirm in your opinion the distance the roots from the tree may spread together with how you arrived at your conclusion?

 

The question demonstrates that it was entirely inappropriate to plant the tree close to the original wall that retained the defendant’s property, and neglectful not to maintain the roots.

  1. Apart from making generalisations of the damage, have you ascertained the following information:

1) Width and location of cracks

2) Wall thicknesses to new and existing retaining walls

3) Wall verticality survey of new and existing retaining walls

4) Heights of retained material to new and existing retaining walls

5) Having collated this information in 1-4 above, considered the mode of damage against published data such as BRE 251

 

The wall is sufficiently displaced to be at early risk of collapse. It is likely that it is currently being restrained by the garage roof and door frame. My report includes photographs of the fractures and displacement of the wall by reference to a 1.2m long level.

 

BRE 251 deals with cracks where the issue in this matter is displacement, which if it continues to develop will lead to total failure of the wall.

 

Nethertheless the movement of the wall would fall within Categories 4 or 5 of the BRE 251 guide, the two most serious, where remedial works will be required.

 

The wall retains ground of about 0.8m to 1.0m high.

 

  1. As far as you are aware, did the Claimants have the new or existing retaining walls designed by a qualified Structural Engineer?

 

This is a matter of evidence, not expert opinion. Again, there is the entirely arrogant assumption only that a structural engineer can design walls.

 

  1. As far as you are aware, did the Claimants apply for Building Regulation Approval for the works to the garage and were those works supervised by a Building Inspector?

 

This is a matter of evidence, but irrelevant as the works do not fall within the scope of the Building Regulations.

 

  1. As far as you are aware, was Building Regulation Approval and/or a Completion Certificate issued or obtained for the works to the garage?

 

This is a matter of evidence, but irrelevant as the works do not fall within the scope of the Building Regulations.

 

  1. Did you undertake any investigations to ascertain the substratum so that the performance of the new and existing retaining walls could be accurately considered?

 

Not considered to be relevant as the failure is largely caused by the trunk of the tree with only a small contribution likely to be from the roots. The planing of the garage door and buckling of the wall within the garage and buckling of the rear garden retaining wall and panel suggests that it has failed above the adjacent ground level rather than below.

 

The minor displacement of the brickwork just above the floor of the garage might be caused by root failure but this has not been confirmed.

 

The walls beyond the influence of the tree are performing adequately.

 

  1. What height in your opinion can a 215mm thick facing brick retaining wall safely retain taking into account all the normal forces acting upon it?

 

Only a fool would answer this question without investigating the ground conditions. The wall is succeeding in retaining the higher ground level in the front and rear gardens. It has only failed where affected by the tree. It is not uncommon to see 215mm walls retaining land of greater height than at the subject location.

 

  1. Would you agree that the thermal block used to line the entire length (11.618m) of the retaining wall within the garage is the wrong type of block to be used?

 

The garage wall is only out of plumb for the 5.0m in close proximity to the tree. The approximate 5.0m length of the remainder of the wall appears to be retaining the approximately 0.8m to 1.0m ground level and root of some shrubs, laurel I believe, adequately.

  1. Would you agree that the new and existing retaining walls should be designed to BS 5837 ‘Trees in relation to Construction’ and BS 8002 ‘Earth Retaining Structures’? If not, please confirm to which British Standard should the new and existing retaining walls be designed and built to?

 

It is a matter of law as to whether there was an obligation to build the wall to any standard.

  1. Is it appropriate, in your opinion, for the garage side wall to be constructed off a garden wall without investigation from a qualified Structural Engineer to establish how the existing wall should be structurally upgraded to comply with the appropriate British Standards?

 

It is a matter of law as to whether there was an obligation to build the wall to any standard. There is no obligation to consult a structural engineer. There was no obligation to build the wall to Building Regulation requirements.

 

  1. Have the Claimants in your opinion exercised due care and diligence by not employing the services of a qualified Structural Engineer to design the new and existing retaining wall structures in close proximity to a tree?

 

This is a matter of law but the original conveyance documents of the properties may have contained a covenant to maintain a boundary wall. It can only have been in the contemplation of the parties that the wall would retain approximately 1.0m of ground plants and shrubs, not a 30m tall tree with root system to support it.

 

The walls constructed retain the adjoining ground except where displaced by the trunk of the adjoining completely inappropriate tree which has not been controlled.

 

Conclusion

The questions seek to:

Impose a duty of care on the claimants and restrict the enjoyment of their property but these are both a matters of law.

Presume that only structural engineer can investigate and design retaining walls which is not correct.

Impose a series of standards and regulations but any obligation to follow such standards is a matter of law.

Ignore that the walls are performing correctly except were displaced by the trunk of the tree and possibly its roots.

Entirely ignore that the particular type of tree is entirely inappropriate for planting against a retaining wall unless the wall was engineered to a standard that could accommodate the tree.

Statement of Truth

 

This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.

 

I Steven JM Butler DECLARE THAT:

 

1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

 

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

 

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

 

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

 

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.

 

6. I have shown the sources of all information I have used.

 

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

 

8. I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

 

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

 

10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.

 

11. I understand that –

 

a. my report will form the evidence to be given under oath or affirmation;

 

b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

 

c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

 

d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

 

e. I may be required to attend Court to be cross-examined on my report; and

 

f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

 

STATEMENT OF TRUTH I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

 

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

 

Yours faithfully

 

Steve Butler

 

SJM Butler

 

 

Joint statement

 

Without prejudice and confidential until signed by both experts.

 

COURT CLAIM

IN THE BUSINESS AND PROPERTY COURT IN BIRMINGHAM

 

(1) MR

(2) MR

 

Claimants 

 

-and- 

 

(1) MR

(2) MRS

 

Defendants 

 

 

JOINT EXPERT REPORT OF STEVEN BUTLER MR SS B

 

  1. Instruction

 

  1. To prepare a joint expert report in respect of structural damage to a garden retaining wall and garage wall that also acts as a retaining wall at H , Summer Road

 

  1. The Experts

 

  1. Steve Butler a Chartered Surveyor has previously prepared a report dated 14th February 2022

 

  1. S B a Chartered Building Engineer and Structural Engineer has previously prepared a report dated 11th March 2022.

 

  1. Points Agreed

 

  1. It is agreed that the an about 5.0m length of the garage wall and an about 2.5m length of the rear garden retaining wall have been displaced.

 

  1. The displacement is caused primarily by the trunk, possibly assisted by the roots, of a substantial tree at N   House, Summer Road that is situated immediately adjacent to the boundary.

 

  1. Beyond the obvious damaged caused by the tree there was no evidence that the remainder of the garage wall or garden retaining wall were distressed.

 

  1. Whether the claimant had a duty to construct walls capable of withstanding forces imposed by the tree is a matter of law.

 

 

Statement of Truth

 

Steven Butler and S B both declare that:

 

i.          We understand that our duty in providing written reports and giving oral evidence is to help the Court, and that this duty overrides any obligation to the party who has engaged us, or the party who has paid us is liable to pay us. We confirm that we have complied with this duty and will continue to comply with this duty.

 

ii.         We confirm that we have made clear which facts and matters referred to in this report are within our own knowledge and which are not.  Those that are within my own knowledge we confirm to be true. The opinions we have expressed represent my true and complete professional opinion on the matters to which they refer.

 

iii.        We have endeavoured to include in my report those matters which we have knowledge of or which we have been made aware that might adversely affect the validity of our opinion. We have clearly stated any qualifications to my opinion.

 

iv.        We confirm that we are aware of the requirements of Civil Procedures Rule 35 and Practice Direction, of the Civil Justice Protocol for the Instruction of Experts to Give Evidence in Civil Claims and the Practice Direction on Pre-Action Conduct.

 

v.         We have indicated the sources of all information we have used.

 

vi.        We have not, without forming an independent view, included or excluded anything which has been suggested to us by others (in particular our instructing lawyers).

 

vii.       We will notify those instructing us immediately and confirm in writing if for any reason our existing reports require any correction of qualification.

 

viii.      We understand that:

 

  1. our report, subject to any corrections before swearing as to its correctness, will form the evidence be given under oath or affirmation.

 

  1. we may be cross-examined on our report by a cross-examiner assisted by an expert.

 

  1. we are likely to be the subject of public adverse criticism by the Court if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

ix.        We confirm that I have not entered into any arrangements where the amount or payment of my fees is in any way dependent upon the outcome of the case.

         

x.         We confirm that we have no conflicts of interest.        

 

xii.       We understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

         

Signed                                                                                   Dated

 

SJM Butler                                                                                  17th May 2022

 

Steve Butler

 

 

Signed                                                                                   Dated

 

 

 

S  B                                                                 17th May 2022