UPPER TRIBUNAL (LANDS CHAMBER)

	
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