Burge and Another v South Gloucestershire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Irwin |
| Judgment Date | 08 September 2017 |
| Neutral Citation | [2017] EWCA Civ 1313 |
| Date | 08 September 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2016/4193 |
[2017] EWCA Civ 1313
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
HIS HONOUR JUDGE BRIDGE AND MR PETER McCREA F.R.I.C.S.
[2016] UKUT 0300 (LC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Lord Justice Irwin
Case No: C3/2016/4193
Mr Satnam Choongh (instructed by Aaron & Partners LLP) for the Appellant
Mr Jason Evans-Tovey (instructed by DAC Beachcroft Claims Ltd.) for the Respondents
Hearing date: 11 July 2017
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
Did the Upper Tribunal (Lands Chamber) err in its approach to an award of compensation for loss incurred as a consequence of consent being refused for the felling of a tree protected by a Tree Preservation Order, whose roots were causing damage to a conservatory attached to a dwelling-house nearby? That is the question at the heart of this appeal.
The appellant, South Gloucestershire Council, is the compensating authority. The respondents are the claimants for compensation, Mr and Mrs Burge. Their claim for compensation was made under section 203 of the Town and Country Planning Act 1990 and article 9 of the South Gloucestershire District Council (Land to the rear of 25 Saxon Way) Tree Preservation Order 2007 (SGTPO 15/07) ("the TPO").
In May 2003 Mr and Mrs Burge had erected a conservatory to the rear of their house at 27 Saxon Way, Bradley Stoke in Gloucestershire. In mid-2006 cracking began to appear both to the house and to the conservatory. In September 2007 Mr and Mrs Burge were advised that the damage to the conservatory was being caused by an oak tree on adjacent land. The oak tree, it is agreed, had been planted sometime before 1946. The council made the TPO, protecting the oak tree, in December 2007 and confirmed it in June 2008. On 2 September 2008, Mr and Mrs Burge made an application to the council for consent to fell the tree. That application was refused on 3 October 2008. A further application was made on 1 April 2010. That too was refused, on 28 May 2010. On 5 July 2010 Mr and Mrs Burge made an application for compensation under article 9(1) of the TPO. The claim for compensation, resisted by the council, was referred to the Tribunal on 8 October 2015. In its decision dated 27 July 2016, after a hearing on 23 June 2016, the Tribunal awarded Mr and Mrs Burge the sum of £25,000 in compensation. That sum had been agreed between the parties as the figure for compensation if the claim were to succeed. The council appealed against the Tribunal's decision on 24 August 2016. Permission to appeal was refused by the Tribunal on 12 October 2016, but granted by Lewison L.J. on 8 February 2017.
The issues in the appeal
There were originally three grounds of appeal. Lewison L.J. granted permission to appeal on two of those grounds, namely:
"The order of the Upper Tribunal (Lands Chamber) to award compensation to the Claimants was wrong in law and/or unjust on the following grounds:
a. It fails to give effect to and/or subverts the purpose of the statutory scheme set up under section 203 of [the 1990 Act];
…
c. The decision to make the order is premised on a failure to identify and/or answer three key questions that must be posed and answered before a decision can lawfully be reached as to whether compensation is payable, namely (i) were there reasonable steps that could have [been] taken to avert the loss? (ii) was the loss that occurred attributable to the failure to take those reasonable steps? [(iii)] was that loss reasonably foreseeable?"
Lewison L.J. regarded those two grounds as properly arguable. Logically, in my view, ground 1(c) is prior to ground 1(a). So the two main issues for us to decide are, in this order:
(1) Did the Tribunal fail to identify and answer the relevant questions under article 9(4)(c) of the TPO (ground 1(c))?
(2) Did the Tribunal fail to give effect to the purpose of the statutory scheme (ground 1(a))?
Section 203 of the 1990 Act
Section 203 of the 1990 Act, under the heading "Compensation in respect of tree preservation orders", provided, so far as is relevant here:
"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 …
… ."
In England, section 203 was repealed by sections 192(6) and 238 of, and Schedule 13 to, the Planning Act 2008, with effect from 6 April 2012. Transitional arrangements were put in place under section 193 of the 2008 Act.
Article 9 of the TPO
Article 9 of the TPO provides:
"(1) If, on a claim under this article, any person establishes that loss or damage has been caused or incurred in consequence of –
(a) the refusal of any consent required under this Order;
…
he shall, subject to paragraphs (3) and (4), be entitled to compensation from the authority.
…
(4) In any case, [other than refusal of consent for felling in the course of forestry operations], no compensation shall be payable to a person –
…
(b) for loss or damage, which, having regard to the statement of reasons submitted in accordance with article 6(c) and any documents or other evidence submitted in support of any such statement, was not reasonably foreseeable when consent was refused or was granted subject to conditions;
(c) 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;
… ."
Provisions equivalent to those of article 9(4)(c) are contained in regulation 24(4)(c) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012.
The evidence before the Tribunal
For the hearing before the Tribunal the parties produced a Statement of Facts and Issues. In that document they described the "overarching issue" in the case in this way: "whether because the Compensating Authority refused to consent to the removal of an oak tree protected by a TPO, the Claimants are entitled to compensation for loss and damage to a conservatory attached to the rear of their house". Among the issues identified by the council were "[whether] dehydration by the oak of the subsoil under the site for the conservatory and the risk of consequential movement of the conservatory and consequential damage were reasonably foreseeable to the Claimants before May 2003" (paragraph 84); "[if] they were, whether the Claimants' loss or damage is attributable to their failure to take reasonable steps to avert loss or damage" (paragraph 85); and "[whether] on-going dehydration of the subsoil by the oak in the summer months and the risk of consequential on-going further movement of the conservatory and damage was reasonably foreseeable to the Compensating Authority when it refused consent in May 2010" (paragraph 87).
The Tribunal heard the expert evidence of two witnesses called on behalf of Mr and Mrs Burge – Mr Robert Evans, a chartered engineer, and Mr Andrew Wyse, a subsidence consultant, and of a single witness called on behalf of the council – Mr Kenneth Brown, a chartered engineer. The Tribunal had before it Mr Evans' report dated 13 January 2016, Mr Wyse's witness statement dated 8 February 2016, and Mr Brown's report dated 22 January 2016. The Tribunal also had before it witness statements made by Mr and Mrs Burge, Mr Burge's made on 5 February 2016, Mrs Burge's on 4 February 2016.
In his witness statement Mr Burge said nothing about the construction of the conservatory. He said that he and Mrs Burge had first noticed the damage to the house and the conservatory "in the summer of 2006" (paragraph 12). He went on to describe the progress of movement and damage to the conservatory, which continued after the removal of other trees in January and September 2007, leading "Crawfords [the loss adjusters] to conclude that the Oak tree was the cause of the continuing movement" (paragraph 14). He then described the history behind the claim, including the unsuccessful attempt that was made to find out who owned the oak tree (paragraphs 15 and 16), the making and confirmation of the TPO (paragraph 17), the council's refusals of consent to fell the oak tree (paragraph 18), and the remedial work to the conservatory (paragraphs 20 to 23). In her witness statement Mrs Burge agreed with the evidence in Mr Burge's, without adding to it.
In May 2016 Mr Evans and Mr Brown had produced a joint statement on engineering matters, recording areas of agreement and disagreement between them after a meeting on 21 April 2016. Among other things, they agreed that "due to the depth of the foundations, some distortion and cracking of the conservatory might have occurred" (point 3); that "proper Engineering advice [would] have been to construct the foundations to the conservatory in accordance with the NHBC guidelines" – though Mr Evans observed that "this was not the industry standard for conservatories" (point 8); that "[given] the restricted location of the site, a piled foundation was the most appropriate foundation solution for the rebuilding of the conservatory" (point 9); that the "costs of the works of the order of £29,347.01" appeared "reasonable" – though Mr Brown was of the view that "if partial underpinning had proved successful the overall costs would have been significantly less" (point 12); and that "the depth [of foundations to the conservatory] should have been of the order of between 2.4m and 2.8m below ground level in order to allow for the drying effects of the eucalyptus...
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