Keepers and Governors of John Lyon Free Grammar School v Westminster City Council
Tree preservation order – Application for consent to fell tree – Claim for compensation in respect of loss caused by refusal of consent – Cost of underpinning works claimed – Whether loss caused by refusal of consent – Whether compensating authority having defence that loss not foreseeable at time of decision to refuse consent – Claim allowed
In March 2005, the claimants made a claim for compensation for losses alleged to have been incurred in consequence of the compensating authority’s refusal of consent to fell a robinia tree that was the subject of a tree preservation order (TPO) made in November 2004. The tree lay within the curtilage of a property lying adjacent to a detached house owned by the claimants. Cracking damage to the claimants’ property had first been discovered in 2003. An arboricultural consultant instructed by the building’s insurers had recommended removal of two plane trees on the highway, within the control of the authority, and the robinia tree. The authority had subsequently made the TPO and, in February 2005, refused a formal application for permission to fell the tree.
In March 2005, the claimants commenced works of repair to the property, including underpinning of the foundations. By their compensation claim, they sought to recover the sum of £68,511, plus interest, as the cost of the underpinning works. That claim was made under section 203 of the Town and Country Planning Act 1990 and article 9 of the TPO.
The authority denied liability to pay compensation. They contended that: (i) in order to show that loss had been caused by the refusal of consent, the claimants needed to establish that continuing damage to their property would occur in the future through the retention of the robinia, as a consequence of the refusal; and (ii) in light of article 9(4)(b), causation on that issue could only be established by reference to matters that were, or should have been, foreseeable to the authority at the time when the decision to refuse consent was made, having regard to the statement of reasons submitted in accordance with the claimants’ application and any other documents submitted in support of that statement. The claimants submitted that the authority was erroneously conflating the different issues of causation of loss and the defence provided by article 9(4)(b) where the loss caused was not foreseeable.
Held: The claim was allowed.
(1) Compensation was payable, under article 9(1) of the TPO, for loss or damage caused or incurred in consequence of the refusal of consent to fell the tree. It was for the claimants to establish both that such loss or damage had been caused or incurred, and that it was a consequence of the refusal of consent. It was not suggested that any physical damage had occurred after the refusal of consent; instead, the basis of the claim was that the continued presence of the tree roots created a risk of subsidence damage occurring in future, in light of which risk it was appropriate to carry out the works of underpinning. It was therefore a claim for the cost of preventive works. The test of causation was whether it had been reasonable for the claimants to carry out the works when they did. If it had not been reasonable, then the cost would not have been caused or incurred in consequence of the refusal of consent. Reasonableness depended both on the degree of risk of future subsidence and on the appropriateness of underpinning as a response to that risk. Both of those matters fell to be considered as at the time when the works were carried out.
On the evidence, the previous damage had been caused by subsidence as a result of water extraction by the robinia. At the time when the underpinning works were carried out in March 2005, there had been a risk of future subsidence.
(2) Article 9(4)(b) provided a defence for the compensating authority where the loss or damage was not reasonably foreseeable at the time when consent was refused. Whether the compensating authority had a defence under article 9(4)(b) depended on whether, on the basis of the information available to them when they refused permission, it was foreseeable that there was a risk of future subsidence due to the retention of the robinia and that underpinning would be appropriate as a response to that risk. The information available to the authority at that time had indicated that the damage to the claimants’ property was caused by the robinia. That material was sufficient to show, on the balance of probabilities, that there was a real risk of further subsidence in the future. There had also been information before the authority warning them that a refusal of consent would almost inevitably result in the need for underpinning. A reasonable compensating authority would therefore have foreseen the risk of future subsidence and the consequent need for underpinning.
(3) The authority were liable for the full extent of the cost of the underpinning works. It was immaterial that the amount of such cost would not have been reasonably foreseeable to the authority at the time of their refusal of consent to fell the tree. The extent of damage had been foreseeable, in light of the reference to underpinning in the application for consent. The underpinning works and the costs incurred on them were reasonable. There was no reason to reduce them simply because they exceeded the estimate put forward when the application had been submitted: Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88 applied. Compensation was awarded in the sum claimed. Simple interest at 2% was also awarded on that sum from July 2005.
Jason Evans-Tovey (instructed by DAC Beachcroft) appeared for the claimants; Charles Mynors (instructed by the legal department of Westminster City Council) appeared for the compensating authority.
Sally Dobson, barrister
Tree preservation order – Application for consent to fell tree – Claim for compensation in respect of loss caused by refusal of consent – Cost of underpinning works claimed – Whether loss caused by refusal of consent – Whether compensating authority having defence that loss not foreseeable at time of decision to refuse consent – Claim allowedIn March 2005, the claimants made a claim for compensation for losses alleged to have been incurred in consequence of the compensating authority’s refusal of consent to fell a robinia tree that was the subject of a tree preservation order (TPO) made in November 2004. The tree lay within the curtilage of a property lying adjacent to a detached house owned by the claimants. Cracking damage to the claimants’ property had first been discovered in 2003. An arboricultural consultant instructed by the building’s insurers had recommended removal of two plane trees on the highway, within the control of the authority, and the robinia tree. The authority had subsequently made the TPO and, in February 2005, refused a formal application for permission to fell the tree.In March 2005, the claimants commenced works of repair to the property, including underpinning of the foundations. By their compensation claim, they sought to recover the sum of £68,511, plus interest, as the cost of the underpinning works. That claim was made under section 203 of the Town and Country Planning Act 1990 and article 9 of the TPO.The authority denied liability to pay compensation. They contended that: (i) in order to show that loss had been caused by the refusal of consent, the claimants needed to establish that continuing damage to their property would occur in the future through the retention of the robinia, as a consequence of the refusal; and (ii) in light of article 9(4)(b), causation on that issue could only be established by reference to matters that were, or should have been, foreseeable to the authority at the time when the decision to refuse consent was made, having regard to the statement of reasons submitted in accordance with the claimants’ application and any other documents submitted in support of that statement. The claimants submitted that the authority was erroneously conflating the different issues of causation of loss and the defence provided by article 9(4)(b) where the loss caused was not foreseeable.Held: The claim was allowed.(1) Compensation was payable, under article 9(1) of the TPO, for loss or damage caused or incurred in consequence of the refusal of consent to fell the tree. It was for the claimants to establish both that such loss or damage had been caused or incurred, and that it was a consequence of the refusal of consent. It was not suggested that any physical damage had occurred after the refusal of consent; instead, the basis of the claim was that the continued presence of the tree roots created a risk of subsidence damage occurring in future, in light of which risk it was appropriate to carry out the works of underpinning. It was therefore a claim for the cost of preventive works. The test of causation was whether it had been reasonable for the claimants to carry out the works when they did. If it had not been reasonable, then the cost would not have been caused or incurred in consequence of the refusal of consent. Reasonableness depended both on the degree of risk of future subsidence and on the appropriateness of underpinning as a response to that risk. Both of those matters fell to be considered as at the time when the works were carried out.On the evidence, the previous damage had been caused by subsidence as a result of water extraction by the robinia. At the time when the underpinning works were carried out in March 2005, there had been a risk of future subsidence.(2) Article 9(4)(b) provided a defence for the compensating authority where the loss or damage was not reasonably foreseeable at the time when consent was refused. Whether the compensating authority had a defence under article 9(4)(b) depended on whether, on the basis of the information available to them when they refused permission, it was foreseeable that there was a risk of future subsidence due to the retention of the robinia and that underpinning would be appropriate as a response to that risk. The information available to the authority at that time had indicated that the damage to the claimants’ property was caused by the robinia. That material was sufficient to show, on the balance of probabilities, that there was a real risk of further subsidence in the future. There had also been information before the authority warning them that a refusal of consent would almost inevitably result in the need for underpinning. A reasonable compensating authority would therefore have foreseen the risk of future subsidence and the consequent need for underpinning.(3) The authority were liable for the full extent of the cost of the underpinning works. It was immaterial that the amount of such cost would not have been reasonably foreseeable to the authority at the time of their refusal of consent to fell the tree. The extent of damage had been foreseeable, in light of the reference to underpinning in the application for consent. The underpinning works and the costs incurred on them were reasonable. There was no reason to reduce them simply because they exceeded the estimate put forward when the application had been submitted: Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88 applied. Compensation was awarded in the sum claimed. Simple interest at 2% was also awarded on that sum from July 2005.Jason Evans-Tovey (instructed by DAC Beachcroft) appeared for the claimants; Charles Mynors (instructed by the legal department of Westminster City Council) appeared for the compensating authority.
Sally Dobson, barrister
