Town and country planning – Tree preservation order (TPO) – Compensation – Appellant compensating authority making TPO in respect of oak tree near respondents’ property – Appellants refusing request under TPO for consent to fell oak tree – Claim for compensation for resulting tree root damage to respondents’ conservatory – Conservatory not built with sufficient depth of foundations given ground conditions and proximity of oak tree – Upper Tribunal allowing claim – Whether tribunal failing to identify and answer relevant questions under article 9(4)(c) of TPO – Whether tribunal failing to give effect to and/or subvert purpose of statutory scheme under section 203 of Town and Country Planning Act 1990 – Appeal allowed
In 2007, the appellant compensating authority made a tree preservation order (TPO) in respect of an oak tree to the rear of the respondents’ house at 27 Saxon Way, Bradley Stoke in Gloucestershire. The making of the TPO followed the discovery of damage to the house and its conservatory caused by shrinkage to the ground beneath the property, which was clay soil with a high degree of plasticity and had become dessicated by tree roots drawing moisture from the soil. An expert report obtained by the respondents recommended the felling of the oak tree. The respondents applied to the appellants for consent under the TPO to fell the oak tree but the appellants refused. The respondents claimed 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 appellants contended that no compensation was payable because the conservatory, 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. 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 respondents and attributable to their failure to take reasonable steps to avert the loss or mitigate its extent.
The Upper Tribunal allowed the respondents’ claim: see [2016] UKUT 300 (LC); [2016] PLSCS 231. The appellants appealed contending that the award of compensation was wrong in law and/or unjust on the grounds that the tribunal: (i) failed to identify and answer the relevant questions under article 9(4)(c) of the TPO; and (ii) failed to give effect to and/or subverted the purpose of the statutory scheme under section 203 of the 1990 Act.
Held: The appeal was allowed.
(1) Article 9 of the TPO related specifically to loss or damage “caused or incurred in consequence of … the refusal of any consent required under [the TPO]”. There were two relevant exclusions from the entitlement to compensation, respectively in article 9(4)(b) and (c). They were deliberately not in exactly parallel terms. The exclusion of compensation in article 9(4)(b) was specific as to the date at which the relevant loss or damage was or was not “reasonably foreseeable” by the compensating authority. The point at which the question fell to be considered under that provision was “when consent was refused or was granted subject to conditions”. There was no such specification of date in article 9(4)(c) which imposed no temporal restriction on the consideration of whether or not the loss or damage was “reasonably foreseeable” by the person in question, and “attributable to his failure to take reasonable steps to avert [it] or to mitigate its extent”. To read into article 9(4)(c) some particular date on which the enquiry had to focus would be contrary to its natural and proper construction.
(2) The claimant for compensation, here the claimant seeking compensation under the statutory scheme for tree preservation orders, was under a duty to mitigate his loss. It was clear that the tribunal had restricted its conclusions on the matters that fell for consideration under article 9(4)(c) solely to the position when the conservatory was built in May 2003. In the particular circumstances of this case, that was to impose an artificial constraint on the consideration of reasonable foreseeability of the relevant loss or damage and reasonable steps “to avert [it]” or “to mitigate its extent”. The tribunal should not have confined itself to the single point in time when the conservatory was built, even though the parties seem to have agreed that that was the critical date. It ought to have considered the questions of reasonable foreseeability and reasonable steps having regard to the whole period between the construction of the conservatory and the relevant loss or damage being caused or incurred. Only then could it fully address the matters to be dealt with under article 9(4)(c). What reasonable steps might be in any particular case would be for the tribunal to consider in the light of all the evidence before it: Fletcher v Chelmsford Borough Council [1991] 63 P & CR [1991] EGCS 312; Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 1 EGLR 19 and Wright v Horsham District Council [2011] UKUT 319 (LC) considered.
(3) By isolating May 2003 as the single relevant date for its consideration of article 9(4)(c), the tribunal had prevented itself from deciding the issue of mitigation of foreseeability of the relevant loss or damage and also whether reasonable steps had been taken to avert that loss or damage and to mitigate its extent. The approach it adopted was wrong. Even if one accepted as valid and sufficient the narrow temporal focus taken by the tribunal, there was a real doubt that its reasons dealt squarely with the question of reasonable foreseeability in the sense of what the respondents ought to have known as well as what they did in fact know. Although the burden rested on a compensating authority to demonstrate to the tribunal’s satisfaction that the loss or damage was reasonably foreseeable, and that the claimant had failed to discharge his duty to mitigate his loss, that burden was not to be exaggerated. Much might turn on sensible inferences drawn from slender evidence, or even from the absence of relevant evidence. The tribunal had not asked itself whether, in the particular circumstances, both in 2003 and subsequently, the respondents had taken such steps as a reasonable property owner would have taken to ensure that the conservatory was, and remained, capable of withstanding the effects of tree roots. Overall, those defects were enough to render the tribunal’s decision invalid.
(4) The statutory scheme and article 9 of the TPO did not, in principle, prevent an award of compensation being made to a claimant who might also have a claim in negligence against a contractor responsible for the defective construction of a building. An award of compensation in those circumstances was not necessarily inimical to the statutory scheme. However, the fact that the building that had sustained loss or damage for which compensation was claimed under the statutory scheme was erected before the making and confirmation of the tree preservation order did not, in principle, prevent the tribunal from finding that the claimant had, nevertheless, failed to discharge the duty to mitigate his loss under article 9(4)(c). That would always depend on the particular facts of the case.
Satnam Choongh (instructed by Aaron & Partners LLP, of Chester) appeared for the appellants; Jason Evans-Tovey (instructed by DAC Beachcroft Claims Ltd) appeared for the respondents
Eileen O’Grady, barrister
Click here to read a transcript of Burge and another v South Gloucestershire District Council
