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UPPER TRIBUNAL
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UT Neutral citation number: [2011] UKUT 213 (LC)
LC
Case Number: LCA/288/2010
TRIBUNALS,
COURTS AND ENFORCEMENT ACT 2007
COMPENSATION
– Tree Preservation Order – refusal of consent to crown reduce a mature oak
tree alleged to have caused subsidence to residential dwelling – claim for cost
of remedial works and preventative measures – compensation £7,602 - Town &
Country Planning (Trees) Regulations 1999
IN
THE MATTER OF A NOTICE OF REFERENCE
BETWEEN HALIFAX GENERAL INSURANCE SERVICES Claimant
and
TEIGNBRIDGE
DISTRICT COUNCIL Compensating
Authority
Re:
15 Ashburton Road, Bovey Tracey,
Devon TQ13 9BZ
Before:
P R Francis FRICS
Sitting
at: Plymouth Magistrates Court, St Andrew Street,
Plymouth PL1 2DP
on
14 April 2011
Keiron Hart of Marishal
Thompson Group for the claimant
Duncan Moors, solicitor with
Teignbridge District Council, for the compensating authority
DECISION
Introduction
1.
This is a claim for compensation in the sum of £7,602 to compensate
Halifax General Insurance Services, the buildings insurers of 15 Ashburton
Road, Bovey Tracey (the subject property), for losses alleged to have occurred
as a result of Teignbridge District Council’s (the council) refusal of an
application to reduce the crown of a mature oak tree which is subject to a Tree
Preservation Order, and is located on land belonging to a third party. The
claim is for the cost of works designed to repair and avoid future damage to
the bungalow. The council say that no compensation is due as the claimant has
failed to prove that the damage alleged to have occurred was caused by the take
up of moisture by the tree roots, that the preventative works that were
undertaken were inappropriate and, in any event, crown reduction would not have
been an effective remedy.
2.
Mr Kieron Hart, BSc (Hons) C Env F Arbor A MIC For, an arboricultural
expert with Marishal Thompson Group, Alnwick, Northumberland, a nationally
based environmental consultancy, appeared for the claimant and called Mr Ian
Hanson B Eng (Hons) C Eng MICE Dip CII (Claims) BDMA Ins Tech, a claims
consultant with Halifax GIS who adopted an expert report that had been prepared
by A S Lycett BSc (Hons) MRICS Dip CII (Claims) Ins Tech BDMA, a chartered
surveyor and loss adjuster with the claimant, who was unable to attend the
hearing.
3.
Mr Duncan Moors, a solicitor with the council, appeared for Teignbridge
and called Mr Paul Clark, B Eng (Hons), a structural and geotechnical engineer
and Mr Paul Durkan, HND Arb M Arbor A, an arboricultural officer, both of whom
are employed by the council and who gave expert evidence.
Facts
4. The
parties helpfully produced an agreed statement of common ground from which,
together with the evidence and my inspection of the subject property and its
immediate environs on 13 April 2011, I find the following facts. The subject
property comprises a detached bungalow fronting Ashburton Road in Bovey
Tracey. The tree, which was the subject of the claimant’s application is a
mature, approximately 100 year old, English oak (Quercus) which is protected
under a Tree Preservation Order issued by the council on 22 March 1999 and
confirmed unopposed on 28 June 1999. It is described as the District of
Teignbridge (Brimley Halt, Ashburton Road, Bovey Tracey) Tree Preservation
Order 1999 and is listed as T1 on the Schedule and plan appended to it. It is
located within the front garden of the adjacent property, Ashlea, 13 Ashburton Road, and is 6.7 metres from the front left-hand corner of the insured’s bungalow.
It was agreed that that this was the only oak tree within potentially
influencing distance of the affected area, and that oak trees have a high water
demand.
5.
In 2007 the owners of the subject property noticed cracking to the
brickwork and mortar joints on the walls at the front left-hand corner of the
property, and contacted their insurers (the claimant) who, following initial
investigations (the obtaining of a report confirming oak tree root activity
below the foundations), instructed Marishal Thompson on 8 January 2008 to carry
out a vegetation survey and to advise on proposed mitigation works. Investigations
were instigated including, in January 2008, excavating a trail pit immediately
in front of the damaged front wall of the subject property, and a bore hole in
the rear garden (outside the alleged zone of influence), and obtaining a soil
test report, together with the commencement of crack monitoring which would
continue until January 2009. An initial Arboricultural Consultancy Report was
however submitted to Halifax GIS on 11 January 2008 which although stating that “no technical investigations are available at the time of reporting” provided
a synopsis that stated:
“5.1. This report is based upon our
understanding at the time of visiting the property that Halifax General
Insurance’s engineers are satisfied that damage is due to clay shrinkage
subsidence exacerbated by vegetation.
5.2 In our opinion T1 has the clear
potential to be exerting influence in respect of the moisture status of soils
beneath the insured dwelling. The removal of T1 subject to heave assessment
offers a predictable and effective arboricultural solution. Pruning within
acceptable limits will not promote recovery and long-term stability.”
6.
On 29 February 2008, the former owner of Ashlea, Mrs J Hannam, made an
application to the council to fell the tree, that being accompanied by
documentation that had been supplied by Marishal Thompson – the initial root
report, the soil survey and the 11 January Arboricultural report.. The
application (ref: 08/0102/TPO) was refused on 24 April 2008 for the following reasons:
“1. The oak (T1) is of
important amenity value to Ashburton Road and the wider area. The removal of
the tree would result in a loss of amenity to the area.
2. The application does
not identify any reasons of condition or health that would require the tree to
be removed.
3. The application states that T1 is implicated in
subsidence damage. However, the information submitted with the application
does not establish the tree to be a significant contributor towards the
unspecified damage of 15 Ashburton Road. In order to better identify the tree
as a significant source of structural damage, any application for consent needs
to include a structural engineer’s interpretation of the mechanism and
progression of the damage as well as level and crack monitoring over an
appropriate length of time.”
No appeal was lodged.
7.
Following completion of the site investigations and crack monitoring, a
meeting took place between representatives of the claimant, Marishal Thompson
and Mr Paul Durkan of the council to obtain, in Mr Hart’s words “a without
prejudice steer … on any forthcoming application.”
8.
On 17 February 2009, an application was submitted to the council to
reduce the crown of the tree by 25%. At this time it was agreed that it was
approximately 17 metres in height. The application was accompanied by the same
documentation that had been submitted with the application to fell, along with
a copy of Mr Lycett’s engineering report dated 8 April 2008 and some crack monitoring data. On 20 April 2009 the council issued a notice of refusal
(ref: 09/00567/TPO/E2/08/36/A) stating the following reasons:
“1. The proposal may have an
adverse effect on the long term health and/or structural integrity of the tree.
2. The proposal will have
an adverse impact on the amenity offered by the tree.
3. Engineering opinion from a
council structural engineer states that the new data shows very slight
movement, and does not indicate that the tree is contributing to damage at the
adjacent property.
4. The requested engineering
interpretation of the new data was not provided by the applicant.
5. Where
a tree is influencing a structure (which does not appear to be happening here),
crown reduction is a poor management technique to address the issue.”
No appeal was lodged. It is as a result of
this refusal that the claim has been made.
9.
The works to underpin the foundations and repair the drive were then put
in hand, and completed in June 2009. Compensation was then sought from the
council, and following their refusal, a notice of reference was submitted to
the Tribunal in January 2010. The claim for £7,602 was made up of underpinning
costs (£6,302), repairs to the driveway due to those works (£800) and
consultancy fees (£500). It was agreed that £2,500 expended on superstructure
repairs was incurred prior to the refusal of the application, and cannot
therefore be claimed.
Issues
10.
The matters for determination are:
1. Whether
the evidence establishes that, on the balance of probabilities, the property
suffered subsidence caused by moisture take up by the roots of the oak tree,
the subject of the Tree Preservation Order, and whether the damage might
continue or re-occur.
2. Whether
the claimant has demonstrated that crown reduction is an effective management
tool to address tree related subsidence, and avoid future problems.
3. Whether the engineering
works undertaken were necessary, appropriate or proportionate in all the
circumstances, and whether the costs were reasonable.
Claimant’s case
11.
Mr Hart said that the root report that had been the first investigation
revealed a total of 6 functionally active oak tree roots at a depth of 0.63
metres (the depth of the property’s foundations) in the location of a trial
hole that was dug immediately in front of the left hand corner of the building
(referred to as TP1). No roots were found at a greater depth. The subsequent
soil tests revealed it to be of brown/grey clay with gravel at all tested depths
in TP1 (where the root investigation had also been carried out), and within a
borehole excavated within the rear garden of the property (BH1). The tests
also revealed significantly reduced moisture content in the vicinity of the
structural damage. At 0.63 metres deep, the moisture at the front was 16%, and
at the rear 27%. At 1.0 metres it was 11% and 25% respectively and at 1.5
metres it was 14% and 21%. At 0.63m in TP1 the soil was found to be of low
plasticity, and at the greater depths of intermediate plasticity. In BH 1 it
was low plasticity at all three monitoring depths. It was accepted that clay
soils of low plasticity have less potential for volumetric change than
intermediate plasticity soils.
12.
As to the crack monitoring that had been undertaken over a period
of a full year, Mr Hart, in respect of the council’s argument that level
monitoring (a different test) should have been carried out, said that it
was his professional opinion that the crack monitoring produced irrefutable
evidence that the damage had been caused by moisture take-up from the roots. Reference
was made to a paper published in 2009 by Dr Giles Biddle OBE entitled “Level
monitoring for investigating tree root damage to buildings”, in which he
said:
“Where
vegetation is involved, it produces a characteristic seasonal pattern of
foundation movement; subsidence in the summer reaching a maximum usually in
September, followed by upward recovery in the winter. No other cause produces
a similar pattern”
He continued:
“If it [seasonal
movement] is occurring, there is no need to try to demonstrate shrinkable clay
or desiccation – soil drying by vegetation must be involved (unless foundations
are less than 300mm). One does not need to demonstrate the full cycle; just
sufficient to confirm movement is consistent with this pattern. Monitoring
upward recovery in the winter is particularly valuable.”
The foundations here were more than 300mm
deep, Mr Hart said, and crack monitoring produces a similar pattern to level
monitoring. Level monitoring was appropriate where damage might have come from
several different sources, but here there was only one – the oak tree.
13.
He also said that the council had accepted (at para 3.4 of their reply
to the claimant’s statement of case) that two of the 6 crack movement trends
monitored “appear to correspond with classic clay shrinkage subsidence.”
Furthermore, a peer review entitled “A risk limitation strategy for tree
root claims” published by the London Tree Officers Association in May 2008 said:
“Crack
monitoring can help to establish the direction, scale and rate of movement
(measured in mm) that is occurring within a building that has already suffered
movement. It usually takes place over a number of months and is most useful
when undertaken over a seasonal period (ie summer to winter) so that it can
demonstrate seasonal movement and recovery at particular times of the year.”
This is precisely what had been done in this
instance, and Mr Hart said that the results from the 4 monitoring stations
(including one at the rear on the warmest, southern, elevation that had been
installed at the request of the council) clearly showed that the movement on
the front and side wall was due to soil shrinkage and that to the rear was
caused by thermal movement. Figure 6 in the statement of case graphically
demonstrated the seasonal movement, with the crack at that monitoring station
opening during the drying season, and closing again in the winter months as the
soil re-hydrated. In his view, the evidence points irrefutably to the oak
tree being the causal factor of the damage.
14.
Mr Hart accepted that changes to the TPO legislation meant that level
monitoring is now a requirement, and was by the time the application for crown
reduction was made to the council in February 2009. However, he said that it
was not mandatory when the initial investigations and crack monitoring
commenced. To provide level monitoring would, he said, have meant a delay of
at least a further 12 months and, as it was, the matter had already been going
on for a considerable period of time since the damage was first reported. He
also said that the council could, when validating the application, have advised
that that information was required. It had also not been sought during the inter-party
meeting, as the minutes showed, and the claimant had been advised to make the
application.
15.
In Marishal Thompson’s advice to the claimant, Mr Hart said that whilst
complete removal of the tree would have been the preferred option, and the only
way to ensure that the influence was completely removed, having regard to the
TPO, the fact that the tree was on third party land, and the relatively low
level of damage being occasioned to the property, it was agreed that, in the
first instance, an application for crown reduction should be made. The plan
was to effect the necessary repairs to the superstructure, and then to monitor
whether the reduction in the tree’s canopy resolved the problems. If it did,
no underpinning would be necessary, but if it did not, the claimant would then
have had to consider whether to make a further application to the council, or
to carry out underpinning at a later stage.
16.
Whilst the council argued that crown reduction was not effective in the
long term, and would be of severe detriment to the amenity of the tree, Mr Hart
said it was a fact that the tree had been heavily pollarded about 40 years ago,
and that had had no long term impact. Oaks were tolerant to extensive pruning.
He referred to British Standard BS3998:2010 “Tree work – Recommendations”
which, although it post-dated the claim, had been around in draft form since
2007. It indicated that crown reduction/re-shaping/pollarding were often
appropriate options “to protect people and property from subsidence of land.”
Mr Hart said that there was no research information showing where moisture
levels were recorded following crown reduction especially on highly shrinkable
soil.
17.
As to the council’s suggestion that a trench should have been dug, and a
concrete root barrier installed rather than partial underpinning (which it was
alleged could cause more problems than it resolved), Mr Hart said that that was
a much more expensive option and would have meant much more extensive physical
works. Whilst Marishal Thompson were the largest suppliers and installers of
root barriers in the country, such an exercise would not have been appropriate
here. The close proximity of the drain run, and the boundary to the adjoining
property, together with the fact that the tree itself was on third party land,
were all factors that weighed against this option. It would also have meant
the need to sever roots of the tree with the potential of causing long term
damage to its health and, furthermore, the council would be facing a much
higher claim for compensation if that route had been followed.
18.
Mr Hart reiterated that crown reduction was considered to have been a
fair option in all the circumstances, and there was no question that the
council had been provided with more than sufficient information to establish
that the problems that had occurred with the subject property were caused by
the tree roots. The claimant was contractually obliged under the insurance
policy to remedy the damage, and to provide a long-term solution to prevent it
happening again. The chosen remedy that resulted from the refusal of the
application was the cheapest option, and Shirepiling was the one which would
cause the least damage and was the most environmentally friendly.
19.
Asked in cross-examination whether it was right for public money to be
used to allow the claimant to fulfil its contractual obligation, Mr Hart said
that, as had been explained, the only reason the works were done was because
the council had refused the application, despite there being clear evidence
that the tree had caused damage to the property. Under the Town and Country
Planning Act, that party was entitled to compensation in such circumstances. It
was, in his experience, unusual for a council to refuse crown reduction and more
often than not, local authorities were much more co-operative than had been the
case here.
20.
Mr Hart accepted that the initial technical synopsis that his firm had
provided to the insurer stated that “pruning within acceptable limits will not
promote recovery and long term stability” but insisted that crown reduction at
25% (whereas the BS suggested 30%) was a “suck it and see” option in the light
of the council’s refusal of permission to fell.
21.
Mr Hanson is a claims consultant with Halifax GIS and said in a letter
to the Tribunal dated 12 April 2011 that he adopted the report of Mr Lycett in
full. Mr Lycett is a chartered surveyor, and loss adjuster with the claimant,
and having prepared the majority of the relevant technical data, plans,
investigation reports and engineering opinion, had produced a statement in
response to Mr Paul Clark’s expert witness report. He set out details of the
technical evidence that had been submitted to Teignbridge’s tree officer, Mr D.
Pratt, in March 2008 and subsequently, and vehemently refuted the council’s
suggestion that insufficient evidence had been provided. The evidence included
the initial tree root identification results, the soil tests, a site plan,
engineering report, Marishal Thompson’s initial arboricultural assessment and
ongoing crack monitoring results. Subsequent reports gave details of crack
monitoring locations and initial results. Mr Lycett affirmed that the
information given to the council was “standard documentation in support of
subsidence movement and damage to a domestic property.” Such evidence is
normally accepted by local authorities, engineers and loss adjusters, and he
said that it was notable that Mr Clark had been unable to provide any evidence
that the cracks referred to were caused by anything other than soil shrinkage
due to the tree roots. At Mr Clark’s request, the additional monitoring
station had been set up on the rear wall, but this served no purpose other than
to reinforce the claimant’s opinion that the cracks to the front were
shrinkage, and those on the rear were purely down to thermal movement – as the
results clearly showed.
22.
Mr Lycett said that Mr Clark had not taken into account the fact that
the summer of 2008 was one of the wettest on record, and was the most likely
reason why the movement that had occurred was fairly minimal. In drier summers
it could be expected that opening up would be much more severe. It should be
noted also that Mr Clark said in his report that a number of the crack reading
measurements “appear to correspond with classic clay subsidence exacerbated by
trees.” It was thus strange that the council were still contending that the
cause of the damage remained unproven. Mr Lycett said that he did not consider
level monitoring to be appropriate on a property of this type and age, and with
no history of previous subsidence movement and no historic distortions to
distinguish from recent cyclical movement. Accordingly, crack monitoring has
been sufficient to demonstrate the cause, nature and extent of the movement
beyond reasonable doubt.
23.
Whilst it was accepted that movement was slight, and damage relatively
minor, it could be predicted that the situation would worsen over time. In the
light of the fact that the council had refused the application to crown reduce
the tree, it was necessary for steps to be taken to identify and adopt a
suitable repair solution in order to indemnify the insured homeowner under the
terms of the policy. The stabilisation works thus undertaken were considered
to be sufficient and a much cheaper option than the root barrier that the
council was suggesting. Mr Lycett included within his report a copy of the BRE
Digest 251 (revised 1995) entitled “Assessment of damage in low rise
buildings.”
24.
In cross-examination, Mr Hanson was asked to comment on the paper
relating to level monitoring that had been prepared by Dr Biddle, and that was
included as an appendix to Mr Lycett’s report (bundle p121). In that, Dr
Biddle had said:
“It is now
recognised that in most cases underpinning is unnecessary and that foundations
can be stabilised by appropriate tree management, usually felling the offending
tree or carrying out heavy crown reduction. Site investigations should
reflect this change and be aimed at providing the information to allow
appropriate decisions on tree management, in particular ….”
It went on to list
7 categories of information and concluded
“Level
monitoring provides definitive information on all of the above, and in most
situations is the only investigation which should be necessary. Trial pits,
boreholes and root identification do not provide relevant information and are
of very limited value.”
Mr Hanson said that whilst he was familiar
with Dr Biddle’s work, he did not necessarily agree with it. He said that
level monitoring is normally used where the source of the problem is not known,
or the whole building is affected. As to why level monitoring had not been
provided despite two council requests to do so, he said it was not considered
necessary in this case. It was much more expensive to undertake, and would
have been overreacting to the problem.
Compensating authority’s case.
25.
Mr Clark is a structural and geotechnical engineer specialising in
building structures and defects, renovation works and remediation approaches,
and has been with Teignbridge for 5 years. He said that said that he had been
asked to comment upon the claimant’s case and the background to the claim, but
had not been requested to inspect the building or carry out any investigations
of his own. At the hearing, he confirmed that he had not inspected the
property in detail, and had only seen it at a meeting with the claimant’s
representatives on 10 June 2008. In his initial report of June 2010 Mr Clark
said that it was his opinion that no clear evidence had been received by the
council detailing the location and pattern of cracking and that no survey data
or comments in the form of an engineering report have been provided to clearly
link the location and nature of cracks to active vertical foundation movement
in the affected area. There was no compelling evidence sufficient to exclude
all other factors, and to determine beyond doubt that the tree was the
principal cause of damage, but he acknowledged that two of the crack monitoring
points appeared to correspond to classic clay shrinkage. Nevertheless, he
said the movement trends highlighted in the claimant’s statement of case are
indirect displacements measured locally to specific cracks, and that they were
not evidence of vertical foundation displacement.
26.
Reference was made to another statement in Tree Root Damage to
Buildings by Dr Biddle where he said it was “far more relevant to measure
.. changes in level rather than the indirect effects which may or may not
become manifest as cracks in the superstructure.” With no level monitoring
having been undertaken, the crack monitoring was in his opinion inconclusive.
Although it was accepted that the building was within the zone of influence of
the tree, the lack of tangible damage report data meant that it was not
possible to conclude that the minor movement that had taken place was linked to
the tree in question. As the movement was minor, and not proven to be
progressive, the decision to underpin was in his opinion incorrect and could
lead to more significant damage in the future. In his opinion a “do nothing”
approach should have been adopted, other than cosmetic repairs to the cracking
and internal plasterwork if necessary.
27.
In his supplementary report, produced in response to Mr Lycett’s report,
Mr Clark acknowledged that further and more detailed engineering reports were
provided by the claimant, but he insisted that despite the request that had
been made by the council on 10 June 2008, no level monitoring information was
provided.
28.
In cross-examination, Mr Clark accepted that he had said in his report
that two of the results provided by the claimant appeared to correspond with
clay shrinkage but nevertheless the solution undertaken was inappropriate and a
“Helifix” programme would have been more than sufficient. He also
acknowledged that 2008 was a particularly dry year, but reiterated that no
rainfall data had been provided. However, he accepted that it had not been
sought and was not a requirement.
29.
Mr Durkan has been employed as the council’s arboricultural officer
since November 2008. He set out the background to the claim in considerable
detail and said that where a tree is believed to be influencing the structure
of a nearby property, one would expect to find it to be built on shrinkable
clay, to be of a species that uses significant volumes of water in the growing
season, to have roots within proximity of the damage, a significant seasonal
pattern of movement and a crack pattern that indicates differential settlement
of the foundations. In order to be satisfied that a TPO protected tree is
contributing to the problem, Regulation 9A(c)(iv) of the Town and Country
Planning (Trees)(Amendment)(England) Regulations 2008 stipulates the need for
“appropriate evidence describing any structural damage to the property.”
Appropriate evidence is, he said, clarified in the Tree Preservation Orders: a
Guide to the Law and Good Practice – Addendum – September 2008 and includes a
structural engineers report and a level monitoring regime.
30.
Mr Durkan acknowledged that all the things he had said would be expected
to be found were found at the subject property, but the cracks could not be
described as significant. He said that 2 of the 6 movements that were
monitored correspond to the classic seasonal opening and closing of cracks
associated with clay shrinkage exacerbated by trees. Nevertheless, it was his
view that much of the information required to assist the council in taking a
view on the matter was not provided. No level monitoring was undertaken, and
no reasons given for why it was not. The engineers report was vague as to the
location and pattern of the cracking, and no evidence was produced to suggest
that other possible causes had been considered. There were no details of the
repointing that had been carried out, no geological strata, no description of
the foundations and no estimated of costs of repair. Significantly, no
details were provided as to what precisely was intended in respect of the “25%
crown reduction.” For instance it was not known if this related to the branch
length or the volume of the canopy. In this regard, he said that 25% reduction
in branch length could mean a 40% reduction in canopy volume. Mr Durkan said
that he undertook a desktop study following the round-table meeting on 9 February 2009 at which Marishal Thompson had discussed the proposed reduction, and could
find no evidence to suggest that the proposal would reduce the amount of water
extracted.
31.
Aside from the council’s concerns that insufficient evidence had been
provided regarding the cause of the damage, and the efficacy of the proposed
solution, a major consideration was, Mr Durkan said, the loss of amenity that
would be caused by the crown reduction. Hence the application was refused and,
he said, although the claimant could have appealed at no cost, it had not done
so.
32.
In response to a question from me, Mr Durkan said that an alternative to
the actions that the claimant had taken would be to carry out regular root
pruning, which could be done on application to the council once it had been
established beyond reasonable doubt that the roots had caused the damage. However,
he was not advocating that course of action and accepted in cross-examination
that some die back to the tree could occur over a number of years if the
pruning was too harsh. Although the council was particularly concerned about
the loss of amenity, Mr Durkan accepted that the severe pollarding that had
been undertaken many years ago did not appear to have had any detrimental
effect.
33.
He also acknowledged that the soil test report (bundle p53) did
confirm that desiccation was occurring within the vicinity of TP1, and that on
the balance of probabilities, it could have been caused by the tree roots. The
issue was not that the tree roots could have caused the problem, but that the
evidence submitted by the claimant was insufficient to prove that conclusively.
34.
It was submitted for the council that it would not be right for it to
have to pay for the works that had been undertaken by the claimant where they
were considered inappropriate. The damage to the property was minimal, and in
their view underpinning works were not required. Mr Hart submitted that the
claimant had sought to minimise costs, and the works that had been carried out
were widely recognised as being an appropriate solution, and were the most cost
effective approach.
Conclusions
35.
The council’s principal argument was that the claimant did not undertake
and provide level monitoring results as part of its application to crown reduce
the tree. Its experts seem to have accepted, from the evidence that was
provided, that on the balance of probabilities at least some of the cracking
that had been monitored was likely to have been caused by the tree roots.
36.
The requirement for level monitoring came into force just before the
claimant submitted its February 2009 application, and undoubtedly (from what Dr
Biddle says) this would have been a useful exercise. Mr Hart’s argument was that
if they had virtually had to start again with the monitoring, there would have
been considerable extra delay and costs would also have risen. However, I
note that the refusal of the application to fell the tree which was refused in
April 2008 said, at reason 3, that as well as an engineering report, level and
crack monitoring over an appropriate length of time should have been
provided. The claimant was thus on notice of those requirements from an early
stage, and could therefore have carried out that additional test without much,
if any, further delay.
37.
Nevertheless, I accept the claimant’s evidence that the crack monitoring
that was undertaken, together with the other information that was supplied to
the council, was sufficient to establish beyond reasonable doubt that the
damage was caused by the roots of the oak tree, and thus whether or not level
monitoring evidence was provided becomes irrelevant to the issues. It also
seems to me that, from the strong arguments propounded by the council about the
affect upon the amenity of the tree, even if level monitoring had been
undertaken, and the results (assuming they were conclusive) submitted to the
council, any application to crown reduce the tree would probably still have
been refused.
38.
Although the council has said that the works of underpinning that were
carried out were inappropriate in the circumstances, it produced no evidence to
support that conclusion. I am satisfied that, although perhaps it would have
been helpful if the claimant had provided the full set of crack monitoring
results with the application, the investigation works that were undertaken were
appropriate, as was the partial underpinning. I accept Mr Hart’s argument
that the alternative of a root barrier, as suggested by the council, would not
have been an appropriate solution for the reasons he gave and in my judgment
the claimant has, as a result of the refusal, carried out a repair and
prevention exercise that was a cost effective and proportionate option.
39.
Issues 1 and 3 are therefore resolved in favour of the claimant. As to
issue 2, whether crown reduction would be an effective management tool to
address tree related subsidence, little if any conclusive evidence was produced
by either party. There seemed to be a paucity of published research into the
subject, and the parties were at odds as to whether, in the longer term, such
action would be sufficient to prevent any further damage. Nevertheless, the
BRE digest produced with Mr Lycett’s report says at page 8 [Bundle p 120]:
“Buildings near existing trees (Digest 298)
Where the
action of existing trees has been identified as the principal cause of
foundation subsidence, care and experience are required in assessing the
likelihood of progressive movement and hence in planning remedial action.
The following factors should be noted:
Where the
trees have reached or a re close to maturity, although seasonal shrinkage
and swelling movements can be anticipated, larger movements are likely to occur
only in exceptional spells of dry weather. Felling of such trees can lead to
worse damage due to swelling of the clay. Tree pruning may offer an
acceptable way of reducing the influence of the tree.” [my emphasis]
In my judgment, based upon the limited
evidence available, it was reasonable for the claimant to conclude that crown
reduction may well have been sufficient to prevent any re-occurrence of the
cracking which was acknowledged to have been slight. Mr Hart made it clear
that it was their intention to then monitor the situation, and underpinning
works would only be considered if the crown reduction failed to achieve the
desired effect. Thus, it was clear that they were not sure, but the result of
the council’s refusal was that it became necessary for other options to be
considered. The option they took was the cheapest and most cost effective,
and I am satisfied that the costs incurred were reasonable.
40.
As I have said, the alternative of a root barrier would have been
inappropriate, expensive and indeed very difficult to achieve due to the
proximity of the drain run, and the boundary onto a third party property.
41.
I thus find that the claimant has made out its case in respect of all
three issues, and within the provisions of section 9(1) of Regulation 2(1) of
the Town and Country Planning (Trees) Regulations 1999 I conclude that the
claimant is entitled to the compensation claimed, and determine it in the sum
of £7,602.
42.
The matter was heard under the simplified procedure which is, except in
exceptional circumstances, a no-costs regime. I assume that by agreeing to it
the parties intended that to be the case, and thus make no order as to costs.
DATED 7 June 2011
P R Francis FRICS
