Decision Nº LCA 41 2011. Upper Tribunal (Lands Chamber), 03-05-2012
| Jurisdiction | UK Non-devolved |
| Judge | Mr Norman J Rose FRICS |
| Date | 03 May 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 41 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2012] UKUT 117 (LC)
UTLC Case Number: LCA/41/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – tree preservation order – cracks appearing in house – refusal of consent to fell robinia in adjoining garden – claim for costs of underpinning works – the basis for determining causation and foreseeability – whether need for underpinning caused by robinia – whether loss or damage reasonably foreseeable when consent refused – whether reasonable steps taken to mitigate loss or damage – whether interest payable on compensation moneys and if so on what basis – Town and Country Planning Act 1990, s203
IN THE MATTER OF A NOTICE OF REFERENCE
THE POSSESSIONS REVENUES AND GOODS
OF THE FREE GRAMMAR SCHOOL OF JOHN LYON
(A CHARITY)
and
THE LORD MAYOR AND CITIZENS OF THE CompensatingCITY OF WESTMINSTER Authority
Re: 147 Hamilton Terrace
London
NW8 9QS
Before: N J Rose FRICS
Sitting at 43-45 Bedford Square, London, WC1B 3AS
on 1 and 2 March 2012
Jason Evans-Tovey, instructed by DAC Beachcroft, solicitors, for the claimant.
Charles Mynors, instructed by Head of Legal and Democratic Services, City of Westminster, for the compensating authority.
The following cases are referred to in this decision:Wright v Horsham District Council [2011] UKUT 319 (LC)
Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1QB 88
Sempra Metals v Inland Revenue Commissioners [2008] AC 561
Bell v Canterbury City Council (1988) 56 P&CR 211
Yuanda (UK) Co Ltd v WW Gear Construction Ltd [2010] BLR 435
Duncan v Epping Forest DC [2004] RVR 213
The following cases were also referred to:
Perrin v Northampton Borough Council [2008] 1 WLR 1308
Rhesa Shipping v Edmunds (“The Popi M”) [1985] 1 WLR 948
Fosse Motor Engineers Limited v Conde Nast [2008] EWHC 2037 (TCC)
Loftus-Brigham v London Borough of Ealing [2003] EWHC Civ 1490; 103 Con LR 102
Wagon Mound (No2) [1967] 1 AC 617
The Heron II [1969] 1 AC 350
Siddiqui v Council of the London Borough of Hillingdon [2003] EWHC 726 (TCC)
Network Rail Infrastructure Ltd v C J Morris [2004] EWCA Civ 172
L E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55 [2002] 1 AC 321
Solloway v Hampshire County Council [1981] 79 LGR 449
Introduction
1. This is a claim for compensation under section 203 of the Town and Country Planning Act 1990 (the 1990 Act) and article 9 of a Tree Preservation Order (No.530 (2004)) dated 12 November 2004 (the TPO) for losses alleged to have been incurred in consequence of a refusal of consent required under the TPO. The compensating authority is the City of Westminster Council who, on 8 February 2005, refused consent to fell a robinia tree (otherwise known as a False Acacia) situated in front of a dwellinghouse known as 145 Hamilton Terrace, St John’s Wood, London (No.145). The claimant is a charity known as The Keepers and Governors of the Possessions Revenues and Goods of the Free Grammar School of John Lyon. The claimant is the freehold owner of 147 Hamilton Terrace (No.147), a dwellinghouse immediately adjoining No.145.
2. The claim is for £68,511.58, being the cost of underpinning works to the foundations of No.147, plus interest. The compensating authority says that no compensation is payable, alternatively that compensation should be limited to £7,500.00.
3. Mr Jason Evans-Tovey of counsel appeared for the claimant. He called two expert witnesses. They were Ms Margaret MacQueen BSc, C Biol MSB, MICFor, MAE, an arboricultural consultant practising through OCA UK Ltd (OCA) and Mr Brian Butcher, a chartered structural engineer and director of Richard Jackson Ltd, consulting engineers.
4. Counsel for the compensating authority, Dr Charles Mynors, called expert evidence from Ms Barbara Milne BSc, DipTP, Dip Arb RFS, Tech Cert Arbor A, MRTPI, senior arboricultural officer in the compensating authority’s built environment department and Mr Bret Champion B.Eng (Hons), C.Eng, M I Struct E, ACILA, managing director of Pyle Consulting.
Facts
5. From a statement of matters agreed and disagreed and from the evidence I find the following facts. No.147 is a part two - and part four-storey link detached house, situated on the west side of Hamilton Terrace one door south of the junction with Carlton Hill. The four-storey section was constructed in about 1830 and the two-storey addition (on the left or southerly side) was built before 1880. The building has subsequently been converted to form six flats. The site slopes from the front towards the rear. The external walls are of solid brick construction. There is a lightwell/sunken courtyard to the front of the property approximately 2.6m deep.
6. Damage to No.147 was first discovered when new tenants occupied the property in about September 2003. The claimant’s surveyors, Beecrofts, inspected the property on 31 October 2003 and reported on 27 January 2004. They noted cracking and separation on the front elevation at the junction of the two-storey and four-storey sections, the width of the cracking being directly proportional to height above ground level. The maximum crack width at high level appeared to be approximately 10mm. On the rear elevation separation and cracking were again noted between the main building and the two-storey addition, the damage mirroring that to the front of the property. The maximum crack width in this location was approximately 8mm. Cracking was also noted internally in the raised ground floor flat and in the garden flat.
7. Following a claim against the building’s insurers, Norwich Union, and on the instructions of Cunningham Lindsey, loss adjusters, Mr Tim Moya of OCA carried out an arboricultural survey of vegetation close to No.147 on 6 March 2004.
8. On 9 March 2004 a representative of CET Group Ltd (CET), also instructed by Cunningham Lindsey, attempted to dig a trial pit at the front of No.147, but was unable to do so because he was moved on by a traffic warden. He returned to the property on 27 April 2004. He dug a trial pit and sank a borehole (TP/BH1) at the front of the property, to the left of the front door to the ground floor flat, and a control borehole (BH2) in the rear garden. In February 2005 two further trial pits were dug: TP/BH1 on a wall inside the store in the lower ground floor of the two-storey extension, and TP2 outside the rear wall.
9. On 18 June 2004 Mr G L Martin, a consultant geotechnical engineer, reported to CET based on the information obtained from the site investigation on 27 April 2004. Mr Martin concluded:
“The natural soil was indicated to be a clay of very high or high/very high plasticity, with high shrinkage potential and high volume change potential. Evidence of root activity was recorded to a maximum depth of 1.40m. The data available at the time of the investigation indicated a zone of desiccation to a depth of at least 3.00mm in TP/BH1.”
10. CET returned to No.147 on 5 August 2004. A further trial pit was dug at the front of the property in order to find more roots, since the previously identified roots had not been retained and classified. This exercise identified roots of live appearance to 2mm in diameter. On 11 August 2004 Tree Root Investigation Ltd certified that the root samples obtained from the trial pit had been alive in the recent past and originated from either a member of the Leguminosae family or Ulmus (elm). They added that members of the Leguminosae included Laburnum, robinia and the climber, wisteria. There was no elm tree in the vicinity of the trial pit.
11. On 11 August 2004 Mr Richard Hope, a senior chartered engineer with Cunningham Lindsey, prepared an engineering appraisal report on behalf of Norwich Union. The report included the following observations:
“NATURE AND EXTENT OF DAMAGE”
Description and Mechanism
The principal...
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