South Gloucestershire Council v (1) Richard Gordon Burge (2) Nicola Anne Burge [2017] EWCA Civ 1313

The Court of Appeal ruled that a tribunal erred in awarding compensation to property owners (the Burges) for damage to their conservatory allegedly arising from a local authority’s (South Gloucestershire Council – the Council) refusal of consent for the felling of a tree protected by a tree preservation order (TPO).

Facts

In 2003 the Burges erected a conservatory to the rear of their house at 27 Saxton Way, Bradley Stoke in Gloucestershire. In mid-2006 cracking began to appear both to the house and to the conservatory. In September 2007 the Burges were advised that the damage to the conservatory was being caused by an oak tree on adjacent land. The oak tree was planted some time before 1946. The Council made the relevant TPO in December 2007 and confirmed it in June 2008. The Burges made two applications for consent to fell the tree in 2008 and 2010 both of which were refused by the Council. On 5 July 2010, the Burges made an application for compensation under Article 9(1) of the TPO. The compensation claim ended up before the Upper Tribunal (Lands Chamber – the Tribunal) and £25,000 compensation awarded to the Burges. The Council appealed to the Court of Appeal.

Article 9 of the TPO read:

‘(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) 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.’

The main argument submitted on behalf of the Council was that the Tribunal failed to identify and answer the questions which ought to have been dealt with under article 9(4)(c) of the TPO. These were:

1) Whether the Council had demonstrated that the loss or damage was ‘reasonably foreseeable’ by Mr and Mrs Burge;

2) That there were ‘reasonable steps’ they could have taken to avert the loss or damage or to mitigate its extent;

3) If so, that the loss or damage was attributable to their failure to take those ‘reasonable steps’.

It was argued that the Tribunal had focused only on the question of whether the Burges 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 Tribunal, in finding in favour of the Burges, had relied heavily on the fact they employed professional contractors to build the conservatory and, ‘as far as is known put their faith in those so employed as they were perfectly entitled to do’ (para 46 of the Tribunal’s decision).

Judgment

The Council’s appeal was successful. Lord Justice Lindbolm gave the lead judgment. One of the main conclusions was that the Tribunal had erred when assessing reasonable foreseeability by focusing on what was foreseeable at a specific moment in time, namely the construction of the conservatory in 2003.

Unlike 9(4)(b) of the TPO, there was no ‘temporal restriction’ when considering whether or not the ‘loss or damage’ was reasonably foreseeable in article 9(4)(c). It was not correct to read into article 9(4)(c) a particular date on which to assess reasonable foreseeability. The span of time to consider when making this assessment will differ from case to case. In this instance, the assessment did not begin and end at the time the conservatory was constructed (2003), but extended forward from that time to when the ‘loss or damage’ was ‘caused or incurred’.

The Tribunal should have also assessed what the Burges should have known rather than what they actually did know; it was not correct to simply say the loss or damage was not reasonably foreseeable by the Burges because the construction work in question was done not by themselves but by professionals. Foreseeability in such circumstances was not so ‘automatic’ or ‘inevitable’ and this was not enough to discharge, once and for all, the Burges’ duty to mitigate.

Comment

Provisions equivalent to those of article 9(4)(c) of the TPO are contained in regulation 24(4)(c) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. The Court of Appeal’s decision, therefore, has wider implications than may at first appear to be the case.

According to this decision, the period for assessing foreseeability under such provisions will vary from case to case, the point at which the potential for ‘loss or damage’ to occur and it actually occurring being very much fact specific.

The Court of Appeal’s decision has abated the Council’s concerns that the Tribunal’s decision gave rise to, namely that the floodgates would be opened. On the Tribunal’s reasoning, property owners could argue they had discharged their responsibility to mitigate loss or damage in the context of TPOs simply by having instructed professional contractors in respect of their damaged properties. The Court of Appeal reversed this position and ensured the floodgates remained closed.