28 May, 2012
In 2003 the owners of a property, 147 Hamilton Terrace, St Johns Wood London, noted that there were cracks appearing, and investigations suggested that the cause was the action of the roots of a 'false acacia' tree situated within the boundaries of number 145.
The properties are in a conservation area, so the insurers of 147 wrote to Westminster City Council seeking permission to remove the tree. The Council responded by recommending a Tree Preservation Order (TPO), which was made in November 2004. So the insurers submitted a formal application to fell the tree. Permission was refused by the Council.
The insurers had to pay for underpinning of the foundations of 147 at a cost of £68,511.58 which they sought to recover from the Council. The claim was brought under Section 203 of the Town and Country Planning Act 1990 and Article 9 of the TPO. The standard form of TPO provides for the authority to pay compensation for loss or damages established as a consequence of a refusal of permission.
The issue for consideration was whether the need for underpinning was caused by the refusal of consent, and whether that was foreseeable in 2005. The Court held that it was, and that the fact that the property was already damaged when the application for consent was made did not mean that the cost of underpinning could not be recovered. The Court said 'It is a claim for the cost of preventative works. Evidence of past damage to the building is relevant only to the question whether there was a risk of subsidence damage occurring in the future.' The Upper Tribunal said 'a reasonable compensating authority would therefore have foreseen the risk of future subsidence and the consequent need for underpinning.' The Judge ordered the Council to pay compensation assessed at £68,511.58
The lesson is that if properties are being damaged by trees, and there is a TPO, the evidence submitted with the application for removal of the tree needs careful consideration.