South Gloucestershire Council v Burge & Anor

Under article 9(4)(c) of a tree preservation order, the tribunal must consider the relevant period and circumstances rather than focus automatically on a single date. It must assess whether the loss was reasonably foreseeable by the claimant and whether reasonable steps were taken to avert or mitigate it. Reliance on professional contractors is not automatically sufficient. The compensating authority bears the burden of establishing the exception. A possible negligence claim against a builder, or construction before the tree preservation order, does not in principle bar compensation, although the claimant may still have failed to mitigate the loss.

Mr and Mrs Burge claimed compensation from South Gloucestershire Council under section 203 of the Town and Country Planning Act 1990 and article 9 of a tree preservation order. They alleged that refusal of consent to fell an oak tree caused continuing damage to a conservatory attached to their home.

The Upper Tribunal (Lands Chamber), in [2016] UKUT 300 (LC), awarded £25,000. The Council appealed, arguing that the Tribunal had misapplied article 9(4)(c) and had failed to give effect to the statutory scheme. The central issue was the proper approach to reasonable foreseeability, reasonable steps, and mitigation of loss.

Appeal allowed. The Tribunal’s decision was invalid because it imposed an unduly narrow approach to article 9(4)(c). The compensation claim was to be determined afresh by the Tribunal, with any further evidence to be considered by it.

1. Article 9(4)(b) fixes the foreseeability question by reference to the time consent was refused or made conditional. Article 9(4)(c) contains no equivalent fixed date. Its enquiry must be shaped by the circumstances of each case and may extend across the relevant period from the construction of the building to the loss or damage flowing from the refusal of consent. A tribunal must not impose an artificial focus on one date merely because the parties treated it as critical.
2. The claimant is subject to a duty to mitigate loss. The compensating authority must establish that the relevant loss was reasonably foreseeable by the claimant and attributable to failure to take reasonable steps to avert it or mitigate its extent. The general mitigation principle stated in Director of Buildings and Lands v Shun Fung Ironworks Ltd. [1995] 2 A.C. 111 was applied. Relevant steps may include monitoring movement, remedial underpinning, or timely felling, depending on the evidence.
3. The Tribunal correctly recognised that the enquiry includes what the claimants knew or ought to have known. However, it considered only the position when the conservatory was built in 2003 and did not properly assess the later evidence that damage had emerged, the oak had been identified as a likely cause, and movement had continued. The fact that professional contractors were employed was not automatically conclusive of reasonable foreseeability or mitigation. The Tribunal had to decide whether a reasonable property owner would have taken further steps in the particular circumstances.
4. The Court did not need to resolve the Council’s wider policy argument. The statutory scheme does not in principle prevent compensation where the claimant may also have a negligence claim against a contractor, and construction before the tree preservation order does not automatically prevent a finding of failure to mitigate. The scheme must nevertheless be applied according to its own terms and remains compatible with corresponding nuisance principles.

• Court of Appeal (Civil Division): allowed the Council’s appeal from [2016] UKUT 300 (LC) and required the compensation claim to be determined afresh.
• Upper Tribunal (Lands Chamber): awarded Mr and Mrs Burge £25,000 in compensation following referral of their claim.