Jason Evans-Tovey represents homeowners in Court of Appeal TPO case
Jason Evans-Tovey represented insurers of homeowners in the first Court of Appeal case to consider compensation for refusing permission to fell a protected tree which was causing damage and in particular the express defence (akin to contributory negligence and failing to mitigate) available to councils in tree preservation orders and now regulation 24(4)(c) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012: South Gloucestershire Council v. Burge  EWCA Civ 1313 (8.9.17)
A conservatory was built in May 2003 by the homeowners using contractors. The foundations were relatively shallow compared to the house. Damage relating to the house and conservatory was noticed in the summer of 2006. Investigations into the cause were commenced, and in about September 2007 an oak tree, on land belonging to an unidentified third party, was identified as a possible cause. In December 2007 (more than 4 years after the conservatory was built) the Council placed a tree preservation order on the oak. In 2008, agents on behalf of the homeowners applied to the Council for consent to fell the tree. The Council refused on grounds that there was insufficient evidence to implicate the oak. Following further investigations, in April 2010 agents on behalf of the homeowners applied again to the Council for consent to fell the tree. The Council refused again, this time on grounds of amenity.
The TPO and the Upper Tribunal
Article 9(1) of the TPO provided:
“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.”…
The Upper Tribunal found that the refusal of the consent had caused damage to the homeowners in the form of on-going and future movement to the conservatory.
The Council relied upon article 9(4) which provided
“In any case, [other than refusal of consent for felling in the course of forestry operations], no compensation shall be payable to a person –
(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;.”
Before the Upper Tribunal the Council had argued that the damage caused by the refusal of consent had been reasonably foreseeable to the homeowners’ builders in May 2003 (even though no TPO had been in place at the time) and that they had failed to take reasonable steps to avert it because they knew or ought to have known that the foundations were too shallow. The Upper Tribunal rejected that defence.
The Council appealed. A contention that the test of reasonable foreseeability in article 9(4)(c)was objective and not subjective was rejected by Lewison LJ at the permission stage.
On appeal, the Court of Appeal (Lindblom and Irwin LJJs) said in effect that the Council’s approach to the article 9(4)(c) defence had been too narrow in confining the relevant enquiry as to reasonable foreseeability and reasonable steps under article 9(4)(c) to the construction of the conservatory in May 2003, rather than embracing a period that extended forward from that time: .
The court held that there is no temporal restriction on article 9(4)(c), save the date of refusal of consent.
“The scope of the enquiry as to reasonable foreseeability and the taking of reasonable steps to avert or mitigate the relevant loss or damage is not fixed in time for every case. It is left to the Tribunal to determine in the particular circumstances of the case it is considering. The Tribunal is not required to confine its attention to a specific date, which might lead to an overly restrictive consideration of the questions of reasonable foreseeability and reasonable steps. It is free to consider these questions within the relevant span of time – bearing in mind always that the relevant “loss or damage” it is considering is the “loss or damage” flowing from the refusal of consent or the granting of consent subject to conditions. To read into article 9(4)(c) some particular date on which the enquiry must focus would be contrary to its natural and proper construction.” 
And at 
“….it is neither appropriate nor indeed possible to prescribe, for all cases, what the relevant span of time will be. Circumstances will differ widely. The point at which the actual “loss or damage” crystallizes will be different from one case to the next. In some cases the potential for such “loss or damage” to occur will have emerged before, perhaps long before, the actual refusal of consent, often before the making and confirmation of the tree preservation order itself. In others, that will not be so. Sometimes a tree preservation order will have been made and confirmed before the potential for relevant “loss or damage” arises. Sometimes the relevant loss or damage will become apparent only after consent to fell is refused. The ambit of the relevant enquiry as to reasonable foreseeability and reasonable steps will vary accordingly. It will depend on the particular circumstances of the case in hand, and will be, in every case, for the Tribunal to resolve as a matter of fact and judgment – so long as it directs itself appropriately under the provisions governing the decision it has to make.”
Despite the court recognising that the burden of establishing the defence was on the Council  and despite the Council having taken the stance before the Tribunal which had done and limiting itself to May 2003 and having adduced limited evidence in support of its defence , and despite the Council having not sought on appeal to re-open the case factually, the court decided to give the Council a ‘second bite’ by remitting the case to the Tribunal for it to make further determinations, while recognising that the ultimate outcome might be the same.
Although the court observed that there had been substantial evidence before the Upper Tribunal that, whatever the homeowners knew or should have known before then, the damage to the conservatory had become apparent in mid-2006, that by September 2007 it had been confirmed that the oak was likely to be responsible for the damage and that its removal would help the situation and that the damage worsened both before and after the refusal of consent, the court did not go on to identify any steps the homeowner could reasonably have taken before imposition of the TPO in December 2007 in relation to the oak which was not on the homeowners’ land.