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Tree Protection Case – Upper Tribunal

South Gloucestershire Council has lost a tree roots case it had argued would expose local authorities to unjustified compensation claims were it unsuccessful.

In Burge & Anor v South Gloucestershire Council, the Upper Tribunal (Lands Chamber) has found against the council and awarded the claimants compensation of £25,000.

The case concerned South Gloucestershire’s refusal to allow the felling of an oak tree covered by a tree preservation order, despite its roots having been found to have damaged the foundations of a resident’s conservatory.

South Gloucestershire argued that the conservatory had been so badly built that it would have failed anyway.

It also contended that the claimants’ loss was not reasonably foreseeable when felling consent was withheld in 2010.

The tribunal said it was already known by then that the oak was causing significant damage to the conservatory’s foundations and “we do not consider that the council comes anywhere near satisfying us that further loss or damage to the claimants was not reasonably foreseeable at that date”.

South Gloucestershire argued that, were it to lose: “Anyone would be entitled to erect an inadequate building near a protected tree contrary to all industry guidance and when damage is caused by that tree and the local authority refuses to grant consent to fell the tree they are liable to pay damages in any and all events”.

But the tribunal said the tree had not been protected when the conservatory was built in 2003.

Protection arrived only in 2008 and consent to fell the tree was refused in 2010. “We do not see how it can sensibly be argued that the claimants have sought from the outset to use the compensatory machinery available to those affected by TPOs to their personal advantage and the disadvantage of taxpayers generally,” it ruled.

A South Gloucestershire spokesperson said: “We are disappointed with the tribunal’s decision and are currently considering our options

Courtesy of LGLawyer

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