UT Neutral citation number: [2010] UKUT 392 (LC)

LT Case Number: LCA/389/2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – tree preservation order – preliminary issue – whether claim time-barred – whether letter sent within limitation period constituted a claim – held that it did – claim and reference to Tribunal validly made

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN MRS M KEATES Appellant

and

HARINGEY LONDON BOROUGH Compensating

COUNCIL Authority

Re: 28 Harold Road,

London, N8 7DE

Before: The President

Sitting at 43-45 Bedford Square, London WC1B 3AS

on 25 October 2010

Stuart Benzie instructed by Eversheds Solicitors of Cardiff for the claimant

Charles Mynors instructed by Head of Legal Services, Haringey London Borough Council, for the compensating authority

The following cases are referred to in this decision:

Texas Homecare Ltd v Lewes District Council (1985) 51 P & CR 205

International Traders Ferry Ltd v Adur District Council [2004] RVR 65,

London & Clydeside Estates Ltd v City of Aberdeen [1980] 1 WLR 182

Secretary of State for Home Department v Ravichandran [1999] 3 All ER 231.

The following further case was referred to in argument:

National Westminster Bank plc v Somer International (UK) Ltd [2002] 2 WLR 64

DECISION ON A PRELIMINARY ISSUE

Introduction

1.           The claimant in this reference seeks compensation for loss that she says that she suffered as a consequence of the compensating authority’s refusal of consent to remove a tree protected by a tree preservation order. The preliminary issue to be determined is whether her claim is time-barred.

2.           The claimant is the freehold owner of a terraced house, 28 Harold Road, London N8 7DE. At the far end of the rear garden of the property there is a London plane tree. The tree is protected under the London Borough of Haringey Tree Preservation Order No.2 of 1967. It is the claimant’s case that damage to the superstructure of the property became apparent in March 2006, and she relies on expert evidence to link the damage, caused by subsidence, to the presence of the tree, the roots of which are said to extend under the property and to have withdrawn moisture from the shrinkable clay soil under the foundations. On 9 August 2007 she applied through her agent for consent to the removal of the tree. The application was refused on 20 November 2007.

3.           The TPO contains the following provisions relating to compensation where loss is sustained as the result of the refusal of consent under the order:

“8. Subject to the provisions of this Order, any person who has suffered loss or damage in consequence of any refusal of consent under this Order or of any grant of any such consent subject to conditions, shall, if he makes a claim on the authority within the time and in the manner prescribed by this Order, be entitled to recover from the authority compensation in respect of such loss or damage.

…

10. (1) A claim for compensation under this Order shall be in writing and shall be made by serving it on the authority such service to be effected by delivering the claim at the offices of the authority addressed to the Town Clerk thereof or by sending it by prepaid post so addressed.

(2) The time within which any such claim shall be made as aforesaid shall be a period of twelve months from the date of the decision of the authority, …”

A claim for compensation in relation to the refusal of consent thus had to be made not later than 19 November 2008.

4.           Following the refusal of consent the claimant instructed her insurers, Lloyds TSB Insurance Ltd, who in turn instructed their solicitors, Eversheds LLP. Eversheds sent a letter dated 14 October 2008 to the Insurance Section, Haringey Council. The letter was headed “Notification of Application for Compensation”, and it said this:

“Dear Sirs

Our Client:- Lloyds TSB Insurance Limited

Insured Property:- 28 Harold Road , London, N8 7DE

Tree Preservation Order – Plane tree to rear of 28 Harold Road, Application for compensation

We are solicitors instructed by Lloyds TSB Insurance Limited who are the insurers of 28 Harold Road, London, N8 7DE.

The property has suffered subsidence damage to the front and rear. The damage to the rear has been caused by the plane tree situated in the rear garden of the property.

When the subsidence damage to the property was noted a claim was made to Lloyds TSB and loss adjusters, Crawford and Company, were instructed to investigate. Following the site investigations it was concluded that the plane tree to the rear was the cause of the damage to the rear of the property. It was considered the plane tree needed to be removed in order to allow for the stability of the property. As such Crawford contacted the Council with a request for the Tree Preservation Order on the plane tree to be removed in order that the tree could be taken down and then the nuisance abated.

On 26 November 2007 the consent for removal of the Tree Preservation Order was refused by the Council. As a direct result of this refusal a decision was to underpin the property in order to effect is stability given the continued present of the plane tree.

It is our client’s intension to seek the recovery of the underpinning costs from the Council upon conclusion of the work. This will be done by way of an Application for compensation following the refusal of the Council to remove the Tree Preservation Order. If a settlement cannot be reached in this respect then it is our intention to issue a Lands Tribunal Claim to recover this money.

This letter is to notify the Council of the intention for such an Application to be made. The Application for compensation will be made as soon as the works to the property are completed.

At this stage we would advise the Council that the reserve for works are £40,000.00.

We look forward to hearing from the Council to confirm who will be dealing with this Claim for compensation on their behalf.

Yours faithfully

Eversheds LLP”

On 16 October 2008 the council’s Risk Insurance Section wrote to Eversheds as follows:

“Your Client: Lloyds TSB Insurance

Insured Property: 28 Harold Road London N8 7DE

Details of Claim: Alleged damage as a result of failure to lift a Tree

Preservation Order.

Thank you for your letter of 14 October 2008.

Alleged damage caused by the failure to lift a TPO is not an insurance matter as insurers tend to look on such damage as ‘inevitable’ and as such beyond the scope of their policy.

In the circumstances we have passed your letter to Ms Gerzie Newell of our Planning Development Control Dept. 1^st Floor, 639 High Road, Tottenham, London N17 8BD together with a request that she contacts you.

There may be a slight delay as she will probably with to involve her Legal Dept.

One question which may be raised is whether the refusal of the application was appealed against as we understand such appeals are very often successful.”

5.           On 28 November 2008 a Senior Legal Assistant wrote to Eversheds on behalf of the council’s Head of Legal Services referring to the letter of 14 October 2008 and to the TPO. The letter said:

“In terms of the order a written claim should have been served on the Council, on or before the 19^th November 2008, or if we consider your date of 26 November 2007, then one or before the 25^th November 2008. No claim was served on the Council in the prescribed way on or before either of these dates.

The time period within which your client could submit a claim for compensation has therefore lapsed and a claim can no longer be submitted. I consider this to be the end of the matter.”

The council have always maintained that the letter of 14 October 2008 did not constitute a claim for compensation that complied with paragraph 10 of the TPO and, as a result, that it is too late to make a claim. After the claimant had given notice of reference of her claim to this Tribunal the council sought to have the validity of the claim decided as a preliminary issue, and on 17 March 2010 I ordered that the issue whether the claimant had made a valid claim pursuant to the TPO should be determined as a preliminary issue.

6.           For the claimant Mr Stuart Benzie advanced four arguments. Firstly he said that on a proper construction the letter of 14 October 2008 constituted a claim for the purposes of the TPO. He referred to Texas Homecare Ltd v Lewes District Council (1985) 51 P & CR 205 and International Traders Ferry Ltd v Adur District Council [2004] RVR 65, and said that the letter was unequivocal in making clear that the claimant was claiming compensation. The claim in Texas Homecare (to which I will refer later) was more equivocal, but the Lands Tribunal had there stated that a benevolent construction should be used.

7.           Secondly, if the letter of 14 October 2008 was , as he put it, “not good notice”, Mr Benzie relied on section 6 of the Human Rights Act 1998, which makes it unlawful for public authorities to act in a way that is incompatible with a convention right and Article 6 of the Convention entitling a person to a fair hearing in the determination of his civil rights. If it was possible to construe the letter as an actual claim, as Mr Benzie submitted that it was, then the council was not entitled to adopt any other construction and thereby to deprive the claimant of her right.

8.           Thirdly, Mr Benzie said, even if the letter was not a claim, it was nevertheless substantially compliant with what a claim was required to be, and so should be treated as a claim. He relied on London & Clydeside Estates Ltd v City of Aberdeen [1980] 1 WLR 182 and Secretary of State for Home Department v Ravichandran [1999] 3 All ER 231.

9.           Mr Benzie’s fourth argument was that the council was estopped from asserting that the letter of 14 October 2008 did not constitute a claim since the letter of 16 October 2008 was an unequivocal representation on the part of the council that the council was treating it as a claim, and the claimant relied on this representation, and it would be inequitable to permit the council to assert that it was not a claim.

10.        For the council Mr Charles Mynors said that the only express requirements imposed by the TPO were that the claim should be made in writing, should be addressed to the Town Clerk, and should be made within the prescribed period. Relying on Texas Homecare and International Traders Ferry he said that the last requirement was not met. (He took no point on the fact that the letter was not addressed to the Town Clerk since the council has not had someone called town clerk for many years.) Texas Homecare showed, he said, that a document that is alleged to be a notice of claim must be unequivocal: it must make clear to the authority that a claim is being made, not that a claim is to be made in the future. He pointed to the words used in the letter of 14 October 2008 – “It is our client’s intention to seek the recovery of underpinning costs from the Council upon conclusion of the work. This will be done by way of an Application for compensation … This letter is to notify the Council of the intention for such an Application to be made. The application for compensation will be made as soon as the works to the property are completed.” These words, Mr Mynors said, simply evinced an intention to make a claim in the future, so that the letter did not constitute a valid and present claim.

11.        Mr Mynors says that International Traders Ferry showed that it was sufficient for a claimant to say “Full details of the claim will be served on you in due course” but that it was not sufficient to say “The claim will be served in due course.” What the claimants said was therefore not sufficient. Mr Mynors added that International Traders Ferry also stated that an unequivocal assertion would be sufficient, whereas here, he said, the letter was equivocal since it merely referred to a claim which might be made in future.

12.        Mr Mynors accepted that the second to fifth paragraphs of the letter amounted to an assertion on behalf of the claimant that she was entitled to compensation, but that, he said, did not make it a claim. To constitute a claim it was necessary for a claimant to say that he was claiming compensation, and the claimant in the letter did not say that.

13.        Texas Homecare and International Traders Ferry both concerned claims for compensation in respect of stop notices. Under the relevant statutory provisions (section 177(4) of the Town and Country Planning Act 1971 and section 186(3) of the Town and Country Planning Act 1990 respectively) a “claim for compensation under this section shall be made to the local planning authority” within the prescribed time. In each case the question arose whether a letter sent to the local planning authority satisfied this requirement.

14.        In Texas Homecare the claimant’s solicitors wrote to the local planning authority on 28 January 1981, one day after a decision of the Secretary of State for the Environment quashing the enforcement notice on which the stop notice was founded. The letter included these sentences:

“Arising out of the quashing of the enforcement, and therefore of the stop notices, it seems to us that our clients are entitled to compensation and costs in relation to the appeal against the enforcement and stop notices and would be pleased to hear from you that your council recognises its liability under these heads. In the meantime our clients will be formulating their various heads of claim with a view to a formal submission of the claim to your council in due course.”

15.        Later, but not within the prescribed time, the authority received a claim for compensation that quantified the claim. The claimant sought to rely on the letter of 28 January 1981 as constituting a valid claim for the purposes of section 177. The Lands Tribunal (V G Wellings QC) held that the letter did constitute a valid claim. He said ((1985) 51 P & CR 205 at 209-210):

“In my opinion section 177 and Regulation 14 do not require that a claim for compensation in respect of a stop notice should be in any particular form or that it should state the sum claimed or that it should be a detailed claim. Of course a document which is alleged to constitute a claim must be unequivocal: it must make clear to the authority in question that a claim is being made; not that a claim is to be made in the future. I agree with Mr Seward that the question in the present case is one of construction of the relevant passage in the letter dated January 28, 1981. In my view, in construing that passage, it is right that a benevolent construction should be used. In my judgment the passage brought to the notice of the council that a claim was then being made against it and that the reference to a formal submission of the claim in due course was a reference to an intention to file particulars of it. If the intention in the passage were merely to give warning that in the future a claim was going to be made then the request that the council should recognise its liability for compensation would hardly be apt until the claim had been made. Accordingly, in my opinion, the relevant passage constituted a claim in itself and the later claims, so far from being claims, were further and better particulars of a claim already delivered. The consequence is that the claim for compensation was not out of time and that the Lands Tribunal has jurisdiction to entertain the reference herein. I accordingly answer the preliminary issue in favour of the claimant.”

16.        In International Traders Ferry, as in Texas Homecare the claimants’ solicitors wrote to the local planning authority shortly after the Secretary of State had quashed the enforcement notice on which the stop notice was founded. The letter included the following (see [2004] RVR 65 at 70, para 31):

“In the light of the decision of the Secretary of State dated 28^th January 1998 we write to give you notice that it is the intention of our client company to claim compensation from your authority under section 186 of the Town and Country Planning Act 1990. Full details of the claim will be served on you in due course.

We also give you notice that we would wish to be served with notice of appeal under section 289 of the Town and Country Planning Act 1990 which your authority has made or intends to make.

We must place on record that as a matter of law we do not agree with the Secretary of State’s decision on the question of our client’s locus standi.”

17.        The claimant contended in the Lands Tribunal that the first paragraph constituted a claim for compensation under section 186 of the 1990 Act. At 71, para 34, I said:

“In my judgment the first paragraph of the letter of 25 February 1998 did constitute a claim for compensation. In saying that it was the intention of the company to claim compensation, the letter was, in my view, making the unequivocal assertion that the company was entitled to compensation. As the Member in Texas Homecare said, there was no requirement that the claim should state the sum claimed or that it should be a detailed claim. The letter went on to say: ‘Full details of the claim will be served on you in due course.’ It did not say : ‘The claim will be served in due course.’ What was to follow ere the details of the claim that was being advanced in the letter. Having received the letter the council could have been in no doubt that the company was saying that it was entitled to compensation, and that details of the claim were to follow. A claim had, in my judgment, effectively been made for the purpose of the statutory provisions.”

18.        On appeal the Court of Appeal upheld this decision. At 76, paras 38-39 Pill LJ, with whom Latham LJ and Eady J agreed, having set out the paragraphs of the letter that I have quoted above said:

“38. …Mr Holgate makes two points about the letter. First, that the letter expresses not a claim for compensation, but an intention to make such a claim in the future; second, the statutory requirement is that the document should indicate the nature of the claim – that is, the main heads and quantum.

39.        I reject both submissions. I accept Mr Alesbury’s submission that a claim was made and that the distinction claimed by the Council is not a real one. The inference that a claim was not being made in the letter could not properly be drawn from the terms of the letter. The future aspect upon a reading of the first paragraph as a whole goes to the full details of the claim and not the existence of the claim. Nor is it correct that the regulations require that the main heads of claim should have been indicated within the 12 month period. However, having reached that conclusion, I add that in order to avoid points like this taken and in the interest of the administration of justice, claimants should make any claim they propose to make clearly and promptly, giving appropriate details as soon as they reasonably can.”

19.        It is clear from Pill LJ’s judgment, firstly, that for a document to constitute a “claim” for compensation, where the statutory provisions do not prescribe what the claim should contain, it is not necessary that the document should set out the main heads of claim or that it should quantify the claim; and, secondly, that the fact that a claim is being made may be derived as a matter of inference from the document.

20.        Mr Mynors was clearly right, in my judgment, to accept that the letter of 14 October 2008 was an assertion on the part of Eversheds of the claimant’s entitlement to compensation. It referred to the subsidence damage which, the letter said, was caused by the plane tree. It stated the reason why consent was sought for removal of the tree. It asserted that as a direct result of refusal of consent it was decided to carry out works of underpinning. It stated the intention to seek recovery of the costs of the underpinning works, adding that if a settlement could not be reached, reference to the Lands Tribunal would be made. There could clearly be no doubt in the council’s mind, having received this letter, that the claimant’s solicitors were asserting that she was entitled to compensation. It must also have been clear to them that no quantified claim was at that stage being made for the reason that the works to the property, for which the reserve was said to be £40,000, were not yet completed. They could expect a quantified claim later. It was not necessary that the letter should say, “I hereby claim compensation”. As Pill LJ’s judgment makes clear, the fact that a claim is being made may be a matter of inference, and in my judgment the inference here is inescapable. It would have avoided all argument if the letter had referred to articles 8 and 10 of the TPO and if it had stated explicitly that compensation was being claimed. But these omissions did not in my judgment vitiate its effect.

21.        The result is, therefore, that the preliminary issue is decided in the claimant’s favour. A valid claim for compensation pursuant to articles 8 and 10 and the TPO was made, and this Tribunal accordingly has jurisdiction to determine the reference. It is unnecessary, therefore, for me to consider the other three arguments advanced by Mr Benzie, all of which were predicated on a conclusion that the letter did not constitute a claim.

22.        I said at the hearing that this was my decision, and I invited submissions as to costs. Mr Benzie asked for the claimant’s costs of the preliminary issue, and Mr Mynors did not resist this. Accordingly the compensating authority must pay the claimant’s costs of the preliminary issue, such costs if not agreed to be subject to detailed assessment by a Registrar on the standard basis.

Dated 27 October 2010

George Bartlett QC, President