Richard Gordon Burge & Anor v South Gloucestershire Council

Compensation under Town and Country Planning Act 1990, section 203 and a tree preservation order is payable where a claimant proves, on the balance of probabilities, that loss or damage was caused by refusal of consent to fell a protected tree. The compensating authority bears the burden of proving an applicable exception to compensation.

Damage was reasonably foreseeable at the date of refusal where the protected tree was known to be causing continuing movement. A building's inadequate foundations do not establish that loss was reasonably foreseeable by its owners when it was built. The authority must prove that they knew, or ought to have known, of a real risk of subsidence damage and failed to take reasonable protective steps.

The claimants owned a house with a conservatory built in 2003 on shallow foundations in shrinkable clay. An oak tree on adjoining land was later protected by a tree preservation order. Following evidence of continuing seasonal movement and root-induced subsidence, the council refused consent in 2010 to fell the oak.

The claimants sought compensation under section 203 of the Town and Country Planning Act 1990 and article 9 of the relevant tree preservation order. The parties agreed that the oak's roots caused the conservatory damage and that, if liability were established, compensation including interest would be £25,000. The central issues were whether the loss was foreseeable when consent was refused and whether it had been foreseeable to the claimants when the conservatory was erected.

1. The claim succeeded. The claimants established on the balance of probabilities that refusal of consent to fell the protected oak caused further damage to their conservatory. They were therefore prima facie entitled to compensation under section 203 of the Town and Country Planning Act 1990 and article 9(1) of the tree preservation order.

2. The council did not establish the exception in article 9(4)(b). At the date of refusal in 2010, it was apparent that the oak was causing significant damage to the conservatory foundations. The oak was a substantial and effective cause of a real risk of continuing movement. Further loss was consequently reasonably foreseeable at that date.

3. The council also failed to establish the exception in article 9(4)(c). Although the conservatory foundations were too shallow and should have been deeper, the relevant question was what the claimants themselves reasonably foresaw in 2003. The council had to prove that they knew, or ought to have known, of a real risk that the oak would cause subsidence damage. There was no such evidence. The claimants were entitled to rely on the professional contractors whom they employed.

4. Compensation was awarded in the agreed sum of £25,000, including interest. On costs, the successful claimants were entitled to their costs. In default of agreement, costs were to be assessed by the Registrar on the standard basis, subject to the parties’ consent order. No payment on account was ordered.

Not an appeal. The claim arose after South Gloucestershire Council refused consent under a tree preservation order to fell the oak tree.