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Compensation for tree root damage: a different approach

We are all familiar with actions in nuisance for injunctions and damages in respect of alleged tree root subsidence. In this latest article for local authorities, Gabriel Fay looks at an interesting recent case, Burge & Anor v South Gloucestershire Council, where instead of following this traditional approach in seeking compensation for such damage, the claimants brought a claim against the Council under Section 203 of the Town and Country Planning Act 1990. 

Background

The facts of this case are not unique but cannot be said to be the norm. The chronology in the case is important and can be summarised as follows:

The property in question was built in 1997 and was constructed on shrinkable clay. In 2003 the claimants added a conservatory to their house.

In 2006 cracks to the rear of the house and the conservatory appeared and were reported to the householder’s insurers. The damage was determined to have been caused by desiccation of the clay soil by a number of trees on the property itself and also by a large oak tree situated on the Council’s land.

The investigation revealed that the cracks to the house itself were not caused by the oak tree but that the oak was implicated in the damage to the conservatory. In addition it was found that the foundations of the conservatory were woefully shallow for the type of soil on which it was situated.

In mid 2007, the trees on the claimants’ property were removed and in December 2007 the Council placed a Tree Preservation Order (‘TPO’) on the oak tree. 

An application to remove the tree made in September 2008 was refused on the grounds of insufficient evidence, and again in April 2010, citing the detrimental impact on the amenity of the area. Following notice in July 2010, an offer of compensation was made. However, liability was then denied following the Council's own investigations which found the conservatory foundations to be inadequate and in breach of NHBC guidance and standards.

By 2011 the damage was such that the conservatory was demolished and rebuilt on floating piles. The claimants then sued the Council for damages under Section 203 of the Town and Country Planning Act 1990 (‘TCPA’) for its refusal to remove the tree.

A further point of note is that the Council, quite rightly, raised the issue that should the tree be removed then this could cause heave which would further damage the property. The oak tree clearly pre-dated the house. Accordingly, the property was built on already desiccated soil, which when saturated would swell causing further movement and damage. Unfortunately, a report on this was only served by the Council a short time prior to hearing and was not permitted in evidence by the Tribunal. 

The legislation

Section 203 provides:

“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.”

In this case, the consent application was for the removal of the tree.

The TPO provided for two exceptions to compensation: where the damage was not reasonably foreseeable; and/or where the damage was reasonably foreseeable by the property owner and attributable to a failure to avert the loss or mitigate.

The Council’s argument and Tribunal’s decision

The Council argued in the first instance that the damage to the property was not reasonably foreseeable. This argument may have had some merit in respect of the initial damage realised in 2006, but of course the action arose out of the Council’s refusal to consent to the removal of the tree in 2010.

In respect of the second limb, the Council argued that the foundations of the conservatory were so shallow that the damage would have occurred as a result of seasonal ground movement, even without the influence of surrounding vegetation, in any event. Interestingly, the experts on both sides agreed that this may be the case. Moreover, the damage was reasonably foreseeable to the claimants in light of the fact that the foundations were so inadequate.

The Tribunal found that whether the foundations were inadequate or not was irrelevant. For the purposes of a claim under Section 203 it was for the Council to prove that at the time the conservatory was constructed the damage was reasonably foreseeable to the claimants. They had engaged independent contractors to carry out the work and were entitled to place their faith in the contractors’ competence.

Comment

In a traditional nuisance claim regarding tree root subsidence, it is difficult to sustain a defence that the damage would have occurred in any event as a result of inadequate foundations. It is a basic causation argument. A defendant will need to demonstrate that the foundations were such that the property would have suffered damage irrespective of the presence of the tree(s) in question. Interestingly that seems to be exactly the case here, with respective experts essentially agreeing on the same. However, it seems clear in light of this decision that causation is irrelevant when considering compensation under Section 203 TCPA. The Tribunal accepted that the foundations did not meet NHBC requirements and guidance but was of the view the “discussion did not advance matters very far”. All that was material was whether the damage was foreseeable at the time of the consent refusal in 2010, as provided for within the TPO.

Equally, foreseeability on the Council’s part should be judged at the time of the refusal to consent, not as with nuisance actions, at the time the damage occurred. What is not clear from the decision is whether the Council was found liable for the entirety of the demolition and construction costs or only part of the costs flowing from their refusal to consent in 2010.

Regarding the evidence in respect of heave, the Tribunal decision not to allow the Council to adduce such evidence is a strong reminder that expert evidence should be obtained and served in a timely manner. However it is far from clear whether the evidence would have made any material difference to the Tribunal’s decision. It would seem that the only relevant considerations are whether/what damage arose out of the failure to consent and whether payment can be avoided under the exception in the TPO.

It is quite possible that the Council would have been able to defend this case in a nuisance action. The area of South Gloucestershire where this particular property was situated is largely limestone with a few pockets of clay. Moreover, this was a relatively new property so the expectation of the council would be that it had been built in accordance with building regulations. With this in mind lack of foreseeability may have been arguable. In addition this is a case where arguments of inadequate foundation may have succeeded. However, the claimants succeeded under the specific compensation provisions in the TCPA and local authorities should be alive to these provisions and the risk they pose. 

Contact

For further information please contact Gabriel Fay on DD +44 207 645 4540 or at Gabriel.fay@dwf.law

Spotlight on trees

Visit Gabriel's new blog for further articles and analysis relating to defending tree claims >

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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