The Court of Appeal recently allowed a council's appeal over an Upper Tribunal judgment on tree preservation orders and compensation payable to a landowner. Claire Booth explains the outcome.
In South Gloucestershire Council v Burge  EWCA Civ 1313 (CA): the council appealed against the Upper Tribunal's award of compensation to Mr and Mrs Burge (B) for loss incurred as a consequence of consent being refused for the felling of a tree protected by a Tree Preservation Order.
B had claimed compensation under s.203 TCPA 1990 and the TPO after their conservatory started to crack. They were advised that the damage was being caused by an oak tree on adjacent land. The council later made TPO protecting the oak tree.
B applied for consent to fell the tree but the council refused; they then applied for compensation for loss and damage incurred as a consequence of the refusal of consent.
The UT ruled that although the conservatory's foundations were too shallow, that did not affect B's case as the onus was on the council to show that B knew, or ought to have known, that there was a real risk of the oak tree causing subsidence damage to the new conservatory; it had failed to show this.
The council argued that the UT had failed to identify and answer the questions which ought to have been dealt with under the TPO, as it had fixed only on the question of whether B actually did know of the risk, rather than on the question of whether they ought to have known of it, and did what they reasonably could to avoid or mitigate the loss.
The court held, allowing the appeal, that the scope of the enquiry as to reasonable foreseeability and the taking of reasonable steps to avert or mitigate the relevant loss or damage was not fixed in time for every case. The Tribunal was not required to confine its attention to a specific date but was free to consider these questions within the relevant span of time, bearing in mind always that it was considering the "loss or damage" flowing from the refusal of consent or the granting of consent subject to conditions.
To read into the TPO some particular date on which the enquiry must focus would be contrary to its natural and proper construction. The Tribunal should not have confined itself to that single point in time – when the conservatory was built – even though the parties seemed to have agreed that that was the critical date. It ought to have considered the questions of reasonable foreseeability and reasonable steps having regard to the whole period between the construction of the conservatory and the relevant "loss or damage" being "caused or incurred".
The Tribunal had erred in taking the view that the mere fact that B had entrusted the building of the conservatory to contractors was enough in itself to overcome the council's case that their relevant loss or damage was "reasonably foreseeable by them", and enough to discharge, once and for all, B's duty to mitigate. This was a material error in the Tribunal's treatment of the decisive issue that rendered its decision invalid.
The Tribunal had also failed to give effect to the object and purpose of the statutory scheme and the provisions in the TPO.
The claim should be determined afresh.