UK case law update: we discuss the recent case of Burge and another v Gloucestershire Council  UKUT 300 (LC), where the Court decided whether the claimant was entitled to compensation from the local authority for tree root damage caused by an oak protected by a tree preservation order.
In 2003, the claimants decided to improve their house by adding a conservatory. In 2006, they noticed cracks between the house and conservatory. On investigation, it was concluded that the conservatory was suffering a significant degree of movement away from the house and that the proximity of tree roots could be contributing to this problem. More detailed site investigations were carried out, which found that the tree in question, an oak tree located to the rear of the property just beyond the site boundary, was the single most significant factor.
In June 2008, the oak became the subject of a Tree Preservation Order (“TPO”) issued by the local planning authority (“LPA”). Shortly after this time, in September 2008, the claimants applied to the LPA for the removal of the oak tree. The LPA refused the claimants’ request,stating that there was insufficient evidence that the tree was causing the damage to their property. A further application to remove the tree made in 2010 was also refused. In 2013, the claimants knocked down and re-built the conservatory, this time with deeper, piled foundations.
The LPA undertook its own site investigations and later accepted that the roots had caused the damage to the claimants’ property. However, it argued that, due to non-compliance with building regulations, no compensation was due to the claimants. In particular, it claimed that the conservatory foundations were inadequate for the type of clay soil on which it was constructed. Further, the conservatory was constructed in knowledge of the presence and location of the tree.
The Upper Tribunal (Lands Chamber) heard the case and decided on 27 July 2016 that the local authority should pay compensation of £25,000 to the claimants.
The claimants had clearly established that, on the balance of probabilities, the LPA’s refusal to give consent for the felling of the tree had caused further damage to the conservatory.
The only basis on which the LPA might have avoided having to pay compensation would have been that: (i) the loss was not a reasonably foreseeable consequence of the failure to give consent to the felling – this was clearly not the case here; and (ii) the loss was reasonably foreseeable and could have been avoided if the claimants had taken reasonable steps to avert or mitigate it. For example, the claimants should have built deeper foundations to avert the damage.
In relation to this second point, the Upper Tribunal decided that, while the conservatory foundations had clearly originally been too shallow, the LPA had not proved that the claimants ought reasonably to have foreseen that this would result in the loss. There was no evidence that the claimants knew the depth of the foundations, the proximity of the tree, or its potential effect in terms of subsidence damage. While building regulations at the time would have recommended building deeper foundations, the claimants had trusted their builders’ judgment in that regard and were entitled to do so.
LPAs will rightly be concerned that this case could open the floodgates for other, similar claims in the future to compensate members of the public for what might be regarded as “defective” buildings. While these policy concerns were argued in front of the Tribunal by the LPA, the Judge did not accept this argument. In particular, the Judge found it difficult to see how the claimants could have set out to use the system for personal gain and to the taxpayer’s disadvantage, when the conservatory was built in 2003, while the TPO protecting the oak was not confirmed until 2008. It remains to be seen whether another Judge might take a different view should a similar case arise in the future.