Burge v South Gloucestershire Council [2016] UKUT 300 (LC)
The Upper Tribunal (Lands Chamber) in Burge v South Gloucestershire Council [2016] UKUT 300 (LC) has ruled that a landowner was entitled to compensation for losses arising from the council's refusal to consent to the felling of a tree, the subject of a tree preservation order (TPO), which has damaged their conservatory. This was despite such conservatory having not been constructed to relevant industry guidance.
Section 203 of the Town and Country Planning Act 1990 provides that a TPO may make provision for the payment by the local planning authority of compensation in respect of loss and damages incurred by the refusal of consent required by the TPO. In this case the TPO excluded compensation:
- for loss or damage which was not reasonably foreseeable when consent was refused or was granted subject to conditions; and
- for loss or damage reasonably foreseeable by that person and attributable to his failure to take reasonable steps to avert the loss or damage or to mitigate its extent
Similar provisions apply generally to TPOs made post 2012 pursuant to Regulation 24(4)(b)&(c) in accordance with the Town and Country Planning (Tree Preservation)(England) Regulations 2012.
The Tribunal found the burdens of proof were:
- it is for the claimants to establish, on the balance of probabilities, that loss or damage was caused or incurred as a consequence of the council's refusal to consent to fell the tree; and
- it is for the council to prove, on the balance of probabilities, that one or other of the exclusions apply
On the facts the first exclusion did not apply. There was a lengthy history of complaint and investigation into tree root damage to the conservatory prior to the making of the TPO and the subsequent refusal to consent to fell the tree.
The council argued the second exclusion applied in that the conservatory was not built to industry standards, given the known soil conditions, and to do otherwise was a failure to take reasonable steps to avert the loss and damages arising. On this issue the Tribunal posed the question as:
"whether at that time loss or damage to the conservatory being erected was reasonably foreseeable to the claimants themselves. It is for the council to show that the claimants knew, or ought to have known, that there was a real risk of the Oak tree causing subsidence damage to the new conservatory."
The Tribunal concluded the council had failure to prove the second exclusion. They found that there was no evidence that the 'owners' knew of the potential subsidence effects at the time of design and construction of the conservatory. They had employed professional contractors and it was reasonable for them to put their faith into such contractors as to the quality of work.
Lessons: If a council refuses consent for work to a TPO tree then you may be entitled to compensation for any losses or damages reasonably foreseeable at the time consent was refused.
The failure to meet industry standards for any affected building will not likely defeat such claim unless such failure (and the consequences) was known to the owners at the time of the works.
