Tree preservation order — Tree root damaging building — Consent to fell refused — Whether expenditure on remedying consequences of tree root damage compensatable
In October
1990 the claimant’s application for consent to fell an ash tree was refused.
The roots of the tree had damaged his house. The claimant sought compensation
in respect of the remedial works, professional fees, VAT and the cost of an
unsuccessful appeal to the Secretary of State for the Environment in the total
sum of £17,470.46; he claimed interest on the compensation. The council
contended that no compensation for damage was payable since the remedial works
would have been required in any event. They denied that the claimant was
entitled to recover the costs of the unsuccessful appeal or any interest.
If the
claimant had received consent to fell the tree, he would have undertaken some
remediation works. Accordingly, his claim for such costs was reduced from
£15,346 to £13,000: see p75D. In accordance with the principle in Fletcher
v Chelmsford Borough Council [1991] RVR 227 LT, the costs of pursuing
the appeal were properly incurred by the claimant and is a loss recoverable as
compensation. The Court of Appeal in Gwent County Council v British
Coal Corporation [1995] EGCS 104 decided that the tribunal when exercising
its statutory jurisdiction does not have the same powers under its rules as a
court or arbitrator to award interest: see p75G. Interest was not payable under
the Planning and Compensation Act 1991 because consent was refused before the
Act came into force on September 25 1995.
to in the decision
Fletcher v Chelmsford Borough Council (1991) 63 P&CR 312; [1991]
2 EGLR 213; [1991] 45 EG 191, [1991] RVR 227, LT
Gwent
County Council v British Coal Corporation
[1995] EGCS 104
Reference to
the Lands Tribunal
This was a
reference to the Lands Tribunal to determine the compensation payable under
section 203 of the Town and Country Planning Act 1990, arising out of the
refusal of consent by Holderness Borough Council for an application to fell an
ash tree included within the Holderness District Council (Aldbrough Village)
Tree Preservation Order 1975.
Walker (instructed by Andrew M Jackson & Co, of Hull) appeared for the
claimant.
Cameron (instructed by the solicitor to Holderness Borough Council) appeared
for the compensating authority.
following decision of the tribunal was delivered.
MR T HOYES: This
is a reference by the claimant dated August 17 1994 to determine the amount, if
any, payable for loss or damage suffered in consequence of the refusal of
consent by the borough council to fell an ash tree included within the
Holderness District Council (Aldbrough Village) Tree Preservation Order 1975
made under the Town and Country Planning Act 1971.
The claimant
sought £15,346.06 in respect of the costs incurred for below ground remedial
works, inclusive of professional fees and VAT plus the cost of an unsuccessful
appeal to the Secretary of State for the Environment against the refusal of
consent in the sum of £1,808 and VAT; total £17,470.46 together with interest
thereon. The council contended that no compensation for damage was payable
because the remedial works would have been required even if the application for
consent had not been refused. In the alternative some works of lesser cost
would have been required and that any determination should not exceed the
difference between the sum claimed for works and the lower cost of works
required in any event. Entitlement to recover the costs incurred in the appeal
against refusal of consent to fell the tree was disputed and the right to
interest upon compensation was challenged.
Facts
The following
facts are agreed or found from the oral and documentary evidence:
1. The
claimant owns the freehold interest in 32 Carlton Lane (hereafter the reference
property).
2. A mature
ash tree about 12 m
the south east corner of the garden of the reference property some 8
m
3. The
dwelling is single storey facing Carlton Lane (the front) and two storey to the
rear so as to provide two garages below ground-floor level.
4. It was
built in about 1978 and structural damage became apparent in mid-1989.
5. In November
1989 the claimant was advised that the dwelling had suffered differential
settlement.
6. In March
1990 the claimant was advised that tree roots were affecting the foundations of
the property.
7. The
claimant was advised that foundation stability would be achieved by felling the
subject tree but if consent was not forthcoming then underpinning of the
foundations to ‘a depth beyond the influence of root activity’ was necessary.
The council do not accept and dispute the appropriateness of these expert
opinions.
8. On April 26
1990 the claimant made application for consent to fell the subject tree which
was refused on October 23 1990; the accepted relevant date for the claim under
this reference.
9. In
September 1990 the council were advised that ‘the additional cost that will be
incurred by underpinning of the property and allowing the ash tree to remain
will be in the order of £2,606’; the claimant disputes this opinion.
10. The
council did not make any certificate pursuant to article 5(a) or (b) of the
tree preservation order (the order).
11. On April 4
1991 the claimant appealed against the refusal of consent and the appeal was
dismissed on March 31 1992.
12. In July
1992 quotations were sought and in early 1993 remedial works, including underpinning,
were carried out to the property at a cost of some £26,700.
Issues
In summary the
issues in the reference are:
(a) What sum,
if any, is payable consequent upon the refusal of consent to fell the ash tree
in respect of remedial works to the property?
(b) Is the
expenditure upon the appeal against refusal of consent recoverable in whole or
part by the claimant?
(c) Is
interest payable upon any sums from (a) and (b) above and if so from what date?
On July 25
1995 in a lodged statement the parties put the matter, essentially in respect
of (a) above as follows:
1. Whether, as
the respondent alleges, ‘that because of the design, location and the damage
occurring before the application to fell the tree, the claimant’s property
would have required underpinning whether the tree remained or not’?
2. If the
answer to (1) above is ‘No’, the respondents agree that the sums claimed have
been expended and that the sums are reasonable, but ‘would require evidence of
competitive tendering’. Is such evidence required, and if so, can the claimant
produce such evidence, so entitling him to recovery of the full amount claimed?
3. If the
answer to (1) is ‘Yes’, would the extent of underpinning required have differed
depending upon whether the tree was felled?
4. If the answer
to (3) is ‘Yes’, what is (a) the cost of the additional work reasonably
required to allow the tree to remain without further damage to the property, or
(b) otherwise the appropriate measure of compensation?
Case for
claimant
In a brief
opening Mr Patrick Walker submitted that if the tree had been felled no
underpinning of foundations would have been required. He put this as the
practical position and the solution proffered by reasonable men; the experts he
would call. If this position is not accepted and it is found that some
underpinning would have been necessary in any event, namely to ensure stability
with the tree felled, then that cost would be minimal and should be deducted
from the sum of £15,346 claimed.
Mr Walker
called Mr Denis Mason, a chartered engineer with some 34 years’ experience, who
spoke to a structural report he had prepared on November 24 1989 (item 5 of
facts above) in which he detailed cracks observed in the property and an
estimated 20 mm of differential
TLP Ground Investigations, which concluded that the cause of the movement was
ground shrinkage due to the effect of tree roots. This report was dated March
19 1990 and was prepared by Mr R L Trattles, the principal of TLP. From a
witness statement dated July 10 1995 Mr Mason said that the TLP report
confirmed his suspicion that the cracking of the dwelling was due to the
subject ash tree. On the basis of the report he advised that the removal of the
tree was essential if the need for expensive underpinning was to be avoided.
Following
receipt of the application to fell the tree the council sought their own
engineering advice (item 9 of facts above) which Mr Mason had initially seen
via the claimant’s insurers and commented upon. In engineering terms he did not
differ from the council’s advisers but on October 20 1990 had expressed the
view, relying upon the report by Mr Trattles, that if the tree had been felled
and moisture was taken up by the ground even a modest scheme of underpinning to
foundations would not have been required. In the alternative a less extensive
scheme of underpinning than that recommended to the council would have been
adequate if the tree had been felled so as to end moisture consumption and
permit absorption into the ground to recommence. Unlike the engineers advising
the council he was not persuaded that the dwelling would have been at risk of
damage from the swelling of the ground following moisture absorption, ‘heave’,
so that the foundations would have needed major underpinning.
In the
circumstances of consent to fell being refused on appeal Mr Mason regarded it
as necessary to underpin the foundations as soon as possible. Accordingly he
prepared drawings and a schedule of required remedial works to enable him to
seek quotations from contractors. Six firms were approached in July 1992 and
three replied, the lowest quotation of £16,269 exclusive of VAT was accepted.
In
cross-examination Mr Mason confirmed that the correct inference to be drawn
from the 20 mm differential settlement he had spoken to was that the
foundations had subsided and that his estimated 20 mm should be treated as
indicative of a range of 15 to 25 mm. He said that the concrete strip
foundation had fractured at the south-east corner and although he was not aware
of other fractures some may have existed. He regarded the construction work in
the main foundations as quite good, their width and thickness were adequate,
but he noted that the strip foundation under the east gable wall abutted but
was not tied into, the longitudinal retaining wall which in effect separated
the foundation systems for the single-storey front and the two-storey rear of
the dwelling. He further confirmed that on the basis of guidance produced by
the National House Building Council (NHBC) during the mid-1980s relating to
house foundations in proximity to trees the foundations at the reference
property were of adequate depth so as not to be affected by the action of tree
roots. An earlier reservation he had expressed in correspondence was in the
expectation that the subject tree would attain 23 m
whereas in fact it was now accepted as mature at about 12 m.
Mr Mason said
that having regard to the site investigation by Mr Trattles and the
observations in his report relative to settlement and likely heave of soil
under the foundations, his first proposal, assuming removal of the subject
tree, was not to underpin but rather to rely upon natural recovery. If that
proved unsuccessful due to heave from swelling ground not matching subsidence
he would have advised underpinning of the foundations to a shallow depth,
namely less than the 2 m
1990 report by the engineers retained by the council.
Mr Mason
agreed that the tender for remedial works accepted by him on behalf of the
claimant was from the contractor who originally built the dwelling but said
that he was unaware that the contractor was a son-in-law of the claimant; his
position was that the quotation had been accepted on the basis that it was the
lowest price received by him.
In
re-examination Mr Mason confirmed that he had considerable experience of
foundation subsidence related to trees, the NHBC guidance was widely adopted in
the building industry and he had no experience of circumstances where it was
not appropriate. If Mr Trattles had proved to be wrong in his view that the
ground and the building would have recovered naturally after the felling of the
tree he would have advised shallow underpinning of some 25% of the front and
gable walls at the south-east corner of the dwelling which he considered would
have cost about £2,000 exclusive of VAT. Finally, Mr Mason said whether to
underpin or not was a matter of engineering judgment on the particular
circumstances, a view had to be taken.
Mr Ronald
Leslie Trattles bsc, msc sole
principal of TLP Ground Investigations since 1980 spoke to his two reports
dated March 19 1990 and November 14 1994. In 1990 he had arranged for two trial
pits to be dug at the south-east (front) and the north-east (rear) corners of
the dwelling, for some hand auger borings to be taken and for limited
laboratory tests upon the samples. At the front, root fibre was present to 1.6
m
was dry and fissured. At the rear no root material was found and the boulder
clay was of a stiff consistency. Tests upon the auger samples recorded plastic
index values of 16 to 23 % suggesting that the material had a low to medium
shrink/swell potential. From his investigations Mr Trattles concluded that the
foundations were of sufficient depth to be unaffected by seasonal moisture
changes in the absence of tree root activity. If the subject tree was felled he
considered that ‘any subsequent heave of the soil, following the gradual return
of moisture to it, would do little more than return the building to its
original position’.
In his 1994
report Mr Trattles drew further conclusions from the data in his 1990 report.
First, that in 1990 the depth of desiccated soil under the foundation to the
front wall was 1.3 m
would have been much less and possibly non-existent. Second, he considered that
tree root activity was likely to have been most pronounced during the unusually
dry periods in the late 1980s: damage to the building was first observed in
1989. Third, the soil under the
potential’. These factors taken together were considered as supportive of and
consistent with his view that ‘heave’ and subsidence would have been of the
same order, so that there was no need to underpin the foundations; he produced
a computation in support. Moreover, he regarded the foundations as of
sufficient depth so as not to be affected by any further trees nearby.
In
cross-examination Mr Trattles accepted that at the reference property the zone
of influence of the tree roots has extended further than that anticipated in
the NHBC guidance, namely 1.3 m
depth for foundations. As the roots had acted abnormally he agreed that it was
difficult to assess when desiccation had occurred and that it was not possible
to be certain when roots colonise a particular area. In spite of his initial
view that he had found ‘youthful roots at the end of the system’ in his
investigations he conceded that root dating is an infant and controversial
science. He accepted there was a danger in the judgment of an unqualified
person, but said his own judgment relied upon many investigations involving the
impact of tree roots.
Although he
had not analysed the characteristics of the 0.9 m
the base of the foundations he accepted that once the subject tree was removed
there was potential swelling from moisture intake in respect of a depth of 0.9
plus 1.3 m
with vertical and not lateral ‘heave’. He considered that the latter was only a
potential danger with high plasticity soils, which was not relevant in the
instant reference. Mr Trattles was unmoved from his position that ‘heave’ would
put the building back into position and result in almost full recovery without
further works. However, he accepted that if there was erratic movement of the
foundations due to fractures and uneven pressures this might not be achieved
but this was not his expectation. He agreed that the NHBC guidance was
inappropriate to the circumstances at the reference property but accepted that
he had relied upon it in forming his opinion of the absence of risk from other
trees than the subject tree. He did not accept that the prospect of unusual
behaviour by other trees was such as to require underpinning of the foundations
of the reference property even if the subject tree was removed; he said it
would be an extreme measure. Nor did he agree that if the site was desiccated
before the reference property was built it was inappropriate, due to the
prospect of excessive ‘heave’, to remove the subject tree.
It was put to
Mr Trattles that underpinning the foundations was the obvious solution whether
the subject tree was removed or not because, (a) there was a risk of greater
‘heave’ than settlement, (b) even if ‘heave’ was not greater it would cause
damage due to foundation failure and lateral ‘heave’ and (c) as the trees are
not performing to normal criteria there is a risk of damage from other trees;
Mr Trattles did not agree.
In
re-examination Mr Trattles said that if there had been desiccation by tree root
activity before the subject property was built he would have
outset, but this was not the factual position.
Case for
compensating authority
Mr Neil
Cameron called no evidence and submitted in response that a prudent engineer
would have required underpinning of the foundations of the reference property
even if the subject tree had been felled for the three reasons he had put to Mr
Trattles. He urged that Mr Mason’s opinion that underpinning would not have
been required rested on the evidence of Mr Trattles and therefore in this
respect he was of no assistance and no weight should be attached to his
opinion.
In respect of
Mr Trattles, Mr Cameron submitted that he was not qualified, by virtue of his
training and experience, to express the opinions he gave because he has no
arboricultural qualification and limited geotechnical knowledge. He regarded
the vertical ‘heave’ predictions by Mr Trattles as flawed because he had
established inadequately the extent of ground desiccation. The opinion of Mr
Trattles that removal of the subject tree would not require any underpinning
depended upon his three preconditions being correct; it is highly unlikely that
most of the desiccation below the level of the foundations occurred after the
reference property was built. If the subject tree had performed as anticipated
in the NHBC guidance there might be substance in the opinions expressed since
the foundations would be on the edge of the zone of influence of the subject
tree. It is established that the tree is not performing in accord with the NHBC
information and therefore the possibility of the zone of influence being
anywhere upon the reference site cannot be excluded. Mr Cameron contended that
the test is not whether it is right to underpin, but also whether it might be
right, as the engineer has to assume the worst case, including ground
desiccation before 1978.
The fine tree
roots referred to by Mr Trattles occur anywhere, likewise young roots, and root
dating is not a layman’s subject. In any event the presence of fine roots does
not support the contention of Mr Trattles that the zone of influence only
extended to embrace part of the site of the reference dwelling after it was
built. Mr Trattles discounted lateral ‘heave’ which may damage the foundations
or prevent all parts of the building going back into place. Moreover, he could
not help with the plasticity index down to 1 m
south-east corner) and suggested sandy material with a low rating.
On the
evidence of Mr Mason it is known that the foundations were not intact and there
may be other unobserved fractures. It would be imprudent to rely upon ‘heave’
to return the building to its former position due to expected different
pressures on sections of the foundation; an engineer should exercise caution by
advising upon and designing for the worst case situation. The NHBC guidance
suggests that after 0.9 m
root activity. The foundations were constructed at this depth but have been
damaged by roots at a greater depth. Patently the foundations should be taken
to greater depth to avoid a repetition of damage from other trees even if the
subject tree
Mr Cameron
accepted that all the items of expenditure totalling £15,346 fall within the
scope of compensation which can be determined by this tribunal. He did not
accept that the same applied to the costs relating to the appeal against
refusal of consent to fell the subject tree although he conceded that there was
no legal authority directly on the point or item. He contended that the
principle must be that these costs were incurred not by reason of the refusal
but by reason of the claimant declining to accept the refusal; the costs arose
because the applicant refused to accept the decision of the council. Finally he
submitted that had the subject tree been removed it may be that a less
extensive and expensive form of underpinning could have been undertaken but the
only evidence was that of Mr Mason but he was deferring to Mr Trattles.
Mr Walker in
closing said Mr Mason only deferred to Mr Trattles when expressing the opinion
that no underpinning would be required had the tree been felled, his
alternative was limited work at a cost of £2,000 plus VAT. He submitted that
there was no clear evidence that a prudent engineer would require underpinning,
the prudent engineer characterised by Mr Cameron was a list of remote
possibilities not accepted by the witnesses for the claimant. Mr Trattles said
the desiccation occurred after the reference property was built and there is
considerable force in his point that if desiccation existed from tree roots in
1978 something would have been done by way of special foundation design to
guard against the problem which has emerged; the evidence is that the
foundations as built met the subsequent NHBC guidance, but were not of special
design.
Mr Walker
urged that the suggestion by Mr Cameron that Mr Trattles’s preconditions were
incorrect is wholly unsupported. There is no evidence in favour of any of Mr
Cameron’s propositions. Mr Trattles had a number of scenarios put to him and he
gave frank answers; the behaviour of soils and foundations is not a perfect
science and those involved can only speak to the reasonable likelihood or
otherwise of adverse situations developing. His prime submission was that
underpinning the foundations was required because, and only because, the
subject tree was not to be felled.
Turning to the
questions or issues in the lodged statement of July 25 1995 (see above) Mr
Walker said that the position was as follows:
1. On all the
evidence ‘No’; underpinning not required in any event.
2. Mr Mason
produced evidence of competitive tendering and there was no challenge to the
sum of £15,346.06.
3 and 4 are
not applicable having regard to answers 1 and 2.
With respect
to the cost of the appeal against refusal of consent to fell the subject tree
Mr Walker disputes Mr Cameron’s submissions. He urged that the correct
principle to apply is mitigation of loss and the costs associated with it. The
consequence of the refusal by the council was the cost of underpinning which
could have been reduced or eliminated by a successful appeal. It was reasonable
and foreseeable that the claimant would pursue an appeal and therefore those
costs are recoverable as a matter of law and reason. Indeed, had an appeal been
successful there may not have been any need or basis for a claim against the
council.
Finally Mr
Walker quantified the claim on behalf of the claimant at £15,346.06, plus
£1,808 and VAT (total per tribunal £17,470.47) together with interest
thereon payable from early 1993 if it is determined that interest is payable by
the council (see later).
Inspection
The parties
were consulted as to whether an inspection by the tribunal was desired and it
emerged as common ground that it was not required as inspection was unlikely to
assist the tribunal.
Decision
Section 203 of
the Town and Country Planning Act 1990 provides that:
A tree
preservation order may make provision for the payment by the local planning
authority, subject to such exceptions and conditions as may be specified in the
order, of compensation in respect of loss or damage caused or incurred in
consequence —
(a) of the
refusal of any consent required under the order, or
(b) of the
grant of any such consent subject to conditions.
Article 9 of
the relevant order says;
Subject to
the provisions of this order, any person who has suffered loss or damage in
consequence of any refusal (including revocation or modification) of consent
under this order or of any grant of any such consent subject to conditions,
shall, if he makes a claim on the authority within the time and in the manner
prescribed by this order, be entitled to recover from the authority
compensation in respect of such loss or damage: Provided that no compensation
shall be payable in respect of loss or damage suffered by reason of such
refusal or grant of consent in the case of any trees the subject of a
certificate in accordance with Article 5 of this order.
It is not
disputed in this reference that the claim was properly made nor that any
certificate under article A5, effectively precluding compensation, was made and
served (see item 10 of facts).
In this
reference the first loss claimed is £15,346, being a part of the total sum
expended by the claimant upon remedial works and the making good of damage
sustained by the property from 1989 onwards. This figure relating to
below-ground works is found to be based upon competitive tenders properly
sought in mid-1992 by Mr Mason. The nature of the works within the claim is not
challenged by the council nor is the inclusion of associated professional and
other fees or charges nor that VAT has been paid upon all these items. In
essence the quantum of this part of the claim is to be considered as
accepted following evidence of competitive tendering.
Article 9 of
the order provides for the payment of compensation for ‘loss or damage in
consequence of the refusal of consent’ to fell the offending ash tree on
October 23 1990. Mr Cameron contended that within those terms there was no loss
because the same work would have been required even if the consent had been
granted; the damage was done by 1990 and it would not have rectified itself
with the tree removed. The desiccation of the soil under the foundations was
extensive and long
of moisture by removing the consumption of the subject tree would create, over
time, excessive ground swelling and pressure upon the foundations so as to
produce damage by vertical and lateral ‘heave’.
Mr Walker
submitted that there was no evidence of this, the evidence was that removal of
the tree and natural forces would have restored normality to the dwelling. As
it was not in issue that the works claimed for were other than reasonable in
the situation of the subject tree remaining, he urged that their cost was
wholly attributable to the refusal of consent to fell and accordingly should be
fully reimbursed by compensation. His alternative, or fall-back, position was
that even if natural forces would not have safely and entirely restored
normality to the dwelling and some underpinning works reasonably and prudently
would have been required their cost was minimal, on the evidence of Mr Mason
£2,000 plus VAT, say £2,350.
Having
carefully considered the evidence of Mr Mason and Mr Trattles, both of whom I
regarded as having considerable practical experience in these matters, and the
adverse possibilities raised in the submissions of Mr Cameron, I conclude that
the prudent owner/claimant, had he received consent to fell the subject tree,
would have undertaken some remediation works. I am not persuaded that he would
have expected, nor that it would have been satisfactory, to leave the return to
normality entirely to natural forces. It may properly have been attempted in
the first instance but in the end I think some works, less extensive than those
actually carried out, such as those spoken to by Mr Mason would have been
needed. For these reasons I determine this part of the claim at £15,346 minus
£2,350, say £13,000.
Turning to the
costs of the appeal against the refusal of consent, while the submissions of Mr
Cameron have a superficial attraction, they attach no weight to the right of
any applicant for consent under the Town and Country Planning Acts to challenge
the initial decision of a local planning authority by appeal to the Secretary
of State. On the basis of the submitted documents the decision upon the
application to fell appears to have been notified to the claimant by a single
sentence contained in a letter from the council dated October 26 1990 following
a committee on October 23 1990. l think that there is force in the submissions
by Mr Walker that it was reasonable and foreseeable the claimant would pursue
an appeal and that had it been
successful the amount of the present claim would have been reduced if
not eliminated. To that extent the appeal was an attempt by the claimant to
mitigate his loss and accordingly the costs involved should be recoverable. In Fletcher
v Chelmsford Borough Council [1991] RVR 227 (not cited in argument) the
principle was expressed as follows:
The pertinent
words are, ‘suffered loss or damage in consequence of the refusal of consent
(to fell the tree)’: proof of such loss entitles the claimant to recover
compensation. The extent or nature of the loss or damage is not limited by the
statutory provisions to the depreciation in the value of land. All damage or
loss which flows from the refusal of consent is potentially
County Council) and is not too remote. Applying the principles as to
remoteness stated by the House of Lords in The Liesboch the issue can be
stated thus; were the steps taken by the claimant the direct and natural
consequence of the action of the borough council and did the damage suffered
flow reasonably and naturally from that act of refusing of consent?
In my
judgment, these principles are equally applicable in this reference save that I
would add to the reference to ‘depreciation in value of land’ the words ‘
and/or the costs of remedial works to buildings upon the land’.
As in Fletcher
the claimant in this reference had been professionally advised about a known
hazard upon his land, the recommended solution was frustrated by the council in
refusing consent but whose decision was not necessarily final. The matter could
not reasonably be left there as the dwelling was damaged and the advice
received as to the extent of required remedial works, if any, was dependent
upon whether the subject tree had to remain or could be felled.
On the facts
in this reference I therefore hold that the costs of pursuing the appeal was
properly incurred by the claimant in consequence of the refusal of consent to
fell under the order and is a loss to be recovered as compensation from the
council. On the basis of documents requested and produced subsequent to the
hearing as evidence of amount and payment in 1992 the award under this item is
£675.63 inclusive of VAT.
The claim for
interest upon compensation advanced by Mr Walker raises two questions, first,
whether this tribunal when exercising its statutory jurisdiction has the same
powers under its rules as a court or arbitrator to award interest? Second,
whether there is statutory provision for the payment of interest and if so from
when? The first question has recently been considered by the Court of Appeal in
Gwent County Council v British Coal Corporation [1995] EGCS 104
(not yet fully reported) in which it was held that this tribunal did not have
such a power under its present rules.
Turning to the
second question, no provision was made in the Town and Country Planning Act
1971 nor in the consolidated Act of 1990. By section 80(1) together with
Schedule 18 Part I to the Planning and Compensation Act 1991 (the 1991 Act)
interest is now payable upon compensation under section 203 of the Town and
Country Planning Act 1990. The Planning and Compensation Act 1991 (Commencement
No 1 and Transitional Provisions) Order 1991 (SI 1991 No 2067) specifies the
commencement date for section 80(1) of the 1991 Act as September 25 1991. Para
4(2) of SI 1991 No 2067 provides that a provision of the 1991 Act mentioned in
the first column of an entry in Part II of Schedule 2 (SI 2067) shall not have
effect in a case where the date shown in the second column is before the
commencement date, namely September 25 1991. The second column makes reference
to or identifies the date the consent required by the tree preservation order
is refused or granted subject to conditions. In the instant reference that
operative date is agreed to be October 23 1990 which is some 11 months prior to
September 25 1991. Having regard to the
under the relevant statutory provisions and accordingly I reject Mr Walker’s
submission that interest should be paid from early 1993, when the remedial
works were undertaken and accept the submission of Mr Cameron that the date of
refusal of consent precludes the payment of interest. However, I would add that
the statutory jurisdiction and duty of this tribunal is to determine the
compensation sum payable and whether interest is payable on that sum is clearly
subject to separate statutory provisions the interpretation of which strictly
lies elsewhere.
The
compensation payable under this reference is therefore determined in the
aggregate sum of £13,675.63 (thirteen thousand six hundred and seventy five
pounds sixty three pence).
This decision
determines the substantive issues raised between the parties, and the
tribunal’s award is final. The parties are invited to make such submissions as
they are advised as to the costs of the hearing, and a letter accompanies this
decision as to the procedure for submissions in writing. The tribunal will, in
due course, incorporate an order as to costs in an addendum to this
decision. Rights of appeal under section 3(4) of the Lands Tribunal Act 1949
and Rules of the Supreme Court Ord 61 will not accrue until the decision has
been thus completed, ie from the date of the addendum.
Addendum
as to costs
Written
representations as to costs have been sought and received from the parties.
These have been considered and it is ordered that the respondents pay to the
claimant his costs of and incidental to the reference. In default of agreement
the costs to be taxed by the registrar of the Lands Tribunal upon the County
Court Scale 2.
