[2025] UKUT 053 (LC)

Counsel for the parties had agreed the following statement of issues:

“The overarching issue is whether the claimant has established that part or all of the claimed cost of works to the property was incurred in consequence of the authority’s third refusal. This breaks down into the following sub-issues:

(1)

Was the oak tree T1

(a)

(on the claimant’s case) an effective and substantial cause, not the sole or predominant cause, (based on the test for a claim in nuisance)

or

(b)

(on the authority’s case) the natural and probable cause(based on the test in a statutory claim for compensation)

of subsidence damage to the property?

It was common ground that the evidential burden is on the balance of probabilities.

(2)

Having regard to the third application for consent to fell and the documents and particulars accompanying it, was the loss to the claimant (the cost of underpinning) reasonably foreseeable by the authority when consent was refused?

(3)

Was the loss reasonably foreseeable by the claimant and attributable to its failure to take reasonable steps to avert the loss or mitigate its extent?

(4)

What is the quantum of loss attributable to the third refusal?”

Simply stated, the issues to be determined are causation, foreseeability (by the authority and the claimant) and the quantum of loss. During the two days of the hearing a great deal of technical evidence and expert opinion was adduced on the issue of causation, on which each of the four experts had been asked to give their opinion. This is at the heart of the case, and the basic question to be answered is: on the balance of probabilities was T1 a cause of subsidence to the property? (Whether the cause must have been “effective and substantial” or “natural and probable” was a detail on which the parties disagreed.) This would demonstrate that its removal, in the absence of an alternative feasible preventative measure, would have enabled the claimant to avoid the cost of the underpinning to prevent further damage. The relevant date at which that determination must be made is the date of the third refusal, 2 February 2018, and the determination must be made on the basis of evidence available to the authority at that date. The burden of proof is on the claimant.