Council defeats judicial review challenge over plan to fell tree said to be causing subsidence
The London Borough of Haringey has successfully defended a judicial review claim brought by a private homeowner in a lengthy dispute concerning its decision to fell a street tree thought to be causing subsidence.
Stephen Evans, of Five Paper chambers, who acted for Haringey, said the complaint by the claimant was that his insurers had revised their agreement to underpin his house, and were seeking a less expensive remedy.
His next-door neighbour though had issued a claim against the council seeking the cost of underpinning that house, but only if the council did not fell the tree.
Haringey’s decision was made while there were outstanding complaints by the claimant and his neighbour about their respective insurers to the Financial Ombudsman Service (FOS).
Mr Evans said the High Court held Haringey was lawfully entitled to make its decision before the FOS final decision, as these concerned the relationships between insurer and insured and not a matter for the council, which had to deal only with the actual civil claim against it.
The High Court case heard by CMG Ockelton was told the dispute concerned a mature London plane tree, which had contributed to subsidence in both houses.
Haringey resolved to fell it and intended to go ahead after a period in which the tree was occupied by protesters.
Judge Ockelton said interested party Aviva Insurance was the insurer of one property and interested party Allianz Insurance the insurer for the other.
Each owner had made claims against their insurers for subsidence damage and had been dissatisfied with the response leading to formal complaints to the FOS.
In March 2023 Haringey notified the claimant it would fell the tree and he issued proceedings challenging this, and alleging Haringey had failed in its duty of candour in disclosing what account it had taken of the dealings of the two house owners with the FOS.
Haringey said those were irrelevant to its decision but the clamant won permission to proceed at the Court of Appeal.
By this time the owners of the neighbouring property had issued proceedings against Haringey for injunctive relief and/or damages due to continuing nuisance caused by the tree to their house, and seeking an order that Haringey abate the nuisance by felling or removing the plane tree.
That claim was for damages of £663.846.40 if the tree was removed and for £847,330.20 if it was not.
Judge Ockelton said the claimant’s case fell because he had not shown Haringey was obliged to defer the decision on the tree until the FOS determined the complaints.
Haringey had been “amply entitled for the reasons it gave to proceed in the absence of further material from the FOS”, he said.
“It did not misstate the facts made available to it, and it had no obligation to enquire further.”
He said the second ground fell because there was “no general requirement or expectation that a decision-maker will not seek to act on a decision it has made, but will instead leave the matter open in case a new decision should be made”.
Judge Ockelton said two facts were said to fall into that category, that the FOS process had progressed to the point where there were provisional decisions that would become final within a short timescale, and that the owners of the neighbouring property would demand that their house be underpinned, and that there was therefore no reason on their account to remove the tree.
“In my judgment, neither of those facts meets the test of being ‘so obviously material’ that it needed to be taken into account,” Judge Ockelton said.
“The first simply meant that a further provisional, unenforceable decision might be on its way soon [and] the second indicates a position taken by the owners of [the neighbouring property] that is flatly contradictory to their pleadings in proceedings to which the defendant is a party.
“The defendant was entitled to ignore it and to rely on the formal documentation supporting the claim that was at the heart of the decision it made.”
Mark Smulian
