Judges order fresh hearing in row over damage caused by protected tree

The Upper Tribunal (Lands Chamber) must reconsider a case in which it awarded compensation of £25,000 against South Gloucestershire Council over damage caused by an oak made subject to a tree preservation order (TPO), the Court of Appeal has ruled.

A Mr and Mrs Burge sought compensation from the council after the tree caused damage to a conservatory at their home in Bradley Stoke.

South Gloucestershire has issued a tree preservation order and the Burges had made three unsuccessful attempts to have the tree felled.

Lord Justice Lindblom said the question at the heart of the council’s appeal against the compensation order was whether the tribunal erred in awarding compensation for loss as a consequence of consent being refused for felling the tree when its roots were causing damage to the conservatory.

Giving judgment in South Gloucestershire Council v Burge & Anor [2017] EWCA Civ 1313, Lindblom LJ said the tribunal had considered the wrong time scale, looking only at what the Burges might reasonably have known when the conservatory was built in 2003.

“It is hard to escape the impression that the tribunal found as it did simply because Mr and Mrs Burge had ‘employed professional contractors to build the conservatory’, and on the basis that it was enough for them – ‘as far as is known’ – to have ‘put their faith in those so employed as they were perfectly entitled to do’,” the judge said.

He said this implied that the tribunal's view was that the mere fact that Mr and Mrs Burge had entrusted the building to contractors was enough in itself to overcome the council's case that their relevant loss or damage was reasonably foreseeable by them as the tribunal “expressly accepted…the foundations [of the conservatory] were too shallow, and … the builders should have dug them deeper’.”

The tribunal had not considered whether the Burges took such steps as a reasonable property owner would have taken to ensure that the conservatory their contractors built for them was, and remained, capable of withstanding the effects of tree roots.

Mark Smulian