Town and country planning – Tree preservation order – Compensation – Compensating authority making TPO in respect of oak tree near claimants’ property – Authority refusing request under TPO for consent to fell oak tree – Claim for compensation for resulting tree root damage to claimants’ conservatory – Conservatory not built with sufficient depth of foundations given ground conditions and proximity of oak tree – Whether claim barred under terms of TPO on ground that loss and damage reasonably foreseeable by claimants and attributable to their failure to mitigate – Claim allowed
In December 2007, the compensating authority made a tree preservation order (TPO) in respect of an oak tree to the rear of the claimants’ house. The making of the TPO followed the discovery that damage to the house and its conservatory was being caused by shrinkage to the ground beneath the property, which was clay soil and had a high degree of plasticity and which had become dessicated by tree roots drawing moisture from the soil. An export report obtained by the claimants recommended the felling of various trees including the oak tree.
The claimants removed a conifer and a magnolia tree but damage continued to occur to the conservatory. The claimants accordingly applied to the authority for consent under the TPO to fell the oak tree. The authority refused consent and the claimants brought a claim for compensation, under article 9 of the TPO and section 203 of the Town and Country Planning Act 1990, for losses suffered as a result of that refusal.
It was agreed that the compensation, if payable, should be assessed at £25,000. However, the authority contended that no compensation was payable because the conservatory, which had been built in 2003, had not been constructed in accordance with the relevant industry guidelines concerning the potential for tree root subsidence in an area of plastic clay. They contended that, in such circumstances, liability for compensation was excluded by virtue of article 9(4)(c) of the TPO, so far as it provided that no compensation was payable for loss or damage that was reasonably foreseeable to the claimants and was attributable to their failure to take reasonable steps to avert the loss or mitigate its extent.
The claimants accepted that the foundations of the conservatory were too shallow given the ground conditions and the proximity of trees and that proper engineering advice would have been to construct the conservatory in accordance with the NHBC Standards. However, they argued that, where they had engaged a professional contractor to build the conservatory, they had been entitled to assume that the job had been done properly and so they could not reasonably have foreseen the damage. The authority submitted that if the claimants’ argument were allowed to succeed, anybody would be entitled to erect an inadequate building near a protected tree and claim compensation; they argued that obviously defective buildings should not be subsidised at public expense in that way.
Held: The claim was allowed.
Whether the claimants’ conservatory complied with the requisite building standards was immaterial in the circumstances of the case; what mattered was that the foundations were too shallow and the builders should have dug them deeper. However, that did not reflect adversely on the claimants’ position. Applying article 9(4)(c) of the TPO, it was necessary to consider the position in 2003 immediately before and at the time of the erection of the conservatory. The question was whether, at that time, loss or damage to the conservatory was reasonably foreseeable to the claimants themselves. It was for the compensating authority to show that the claimants know, or ought to have known, that there was a real risk of the oak tree causing subsidence damage to the new conservatory. The authority had failed to show that. There was no evidence that the claimants knew about the depth of the foundations, the proximity of the oak or the consequent potential for subsidence damage to the conservatory.
The claimants had employed professional contractors to build the conservatory and had put their faith in those so employed, as they were perfectly entitled to do. There was no reason of policy why the claimants should be prevented from claiming compensation in those circumstances. The compensating authority’s argument based on public policy did not sit comfortably with the facts of the case. The conservatory had been built at a time when there were no protected trees in the vicinity. The TPO protecting the oak had not been made until several years later and the refusal of consent to fell had come later still. It could not sensibly be argued that the claimants had sought from the outset to use the compensatory machinery available to those affected by TPOs to their personal advantage and to the disadvantage of taxpayers generally. The claimants were accordingly entitled to compensation of £25,000.
Jason Evans-Tovey (instructed by DAC Beachcroft Claims Ltd) appeared for the claimants; Nina Pindham (instructed by Aaron & Partners LLP, of Chester) appeared for the compensating authority.
Sally Dobson, barrister
Click here to read transcript: Burge and another v South Gloucestershire District Council
