Consistory court examines subsidence from trees where local council has responsibility for a closed churchyard
Nothing to do with roofs and guttering, but the potential liability in tort for events caused by nature where no human activity was involved, as in Leakey & Ors v National Trust  EWCA Civ 5,  QB 485; i.e. a situation similar to that to which we referred regarding the landslip from St Mary’s churchyard, Whitby. As with the recent news item on removing “rough sleepers” who had set-up camp in St Giles’ churchyard, Oxford, the case of Re Christ Church Lye  Worcester Const Ct Charles Mynors Ch highlights another of the lesser known duties of local councils who have taken responsibility for the “care and maintenance” of a closed churchyard under section 215 Local Government Act 1972.
A faculty for the felling of two beech trees in the churchyard of Christ Church at Lye was sought by the Dudley Metropolitan Borough Council; the proposed felling was not recommended by the DAC, and was also opposed by the PCC and various local residents. [Readers may follow the example of the Chancellor and identify the trees in question by using Google Maps’ Street view, as described in paragraph 2 of the judgment]. The petition was accompanied by a technical report, dated December 2011, produced by Crawford, structural engineers instructed by the insurers of No 41 High Street; this indicated “cracking visible throughout the interior…categorised as “moderate” in the terms of BRE Digest 251.
The report concluded, :
“The pattern and nature of the cracks is indicative of subsidence. The cause of the movement appears to be clay shrinkage. The timing of the event, the presence of shrinkable clay beneath the foundations and the proximity of vegetation where there is damage indicates the shrinkage to be root induced.
Fortunately, the cause of the problem (dehydration) is reversible. Clay soils will re-hydrate in the winter months, causing the clays to hydrate and the cracks to close. Provided the cause of the movement is dealt with (In this case, vegetation) there should not be a recurrence of movement.”
Marishal Thompson, arboricultural consultants, also produced a report for the insurers of no 41, but this was not presented to the court, . However, further evidence was available form another report produced in January 2014 by Paul Harris, the chartered engineers acting for Zurich Municipal, the Council’s insurers, This concluded, :
“5. The pattern of movement (significantly greater nearest to the trees than elsewhere) indicates that moisture extraction by the roots of the Council’s trees is a substantial contributory factor in the drying shrinkage,”
and recommended, :
“Insofar as the trees are involved in the subsidence damage, their effect can only be removed by either removing the effect of the trees (by felling or root barrier) or by extending the foundations below the zone of influence of the trees by underpinning. It is therefore to be expected that, if the trees are involved in this matter are not removed, Crawford will underpin. Crawford has suggested a likely cost of £40,000 for underpinning but, given that it will need to be deeper than 3 metres to be effective, I am inclined to the view that a completely effective scheme would be more expensive.”
None of those wishing the trees to remain – the Council’s tree officer, the DAC, and parishioners – produced any evidence to contradict the technical information produced in support of the proposed felling, , and in the light of the information submitted to the court, the Chancellor concluded, on the balance of probability, ,
(a) the proximity of the two trees has caused damage to 41 High Street in recent years;
(b) if remedial action is not taken promptly, such damage will recur indefinitely in the future;
(c) the most effective, indeed arguably the only entirely satisfactory, remedies to avoid such future damage are either to remove the trees or to underpin the building; and
(d) the cost of underpinning the building will be in excess of £40,000 (plus fees if not included in that figure).
The Chancellor reviewed the law associated with liability for remedial action or damages, [12 to 16]: liability in nuisance at common law may arise where a tree’s roots encroach into the soil of a neighbouring property, and where such a nuisance occurs, the owner or occupier responsible can be sued for damages; in practice these will equate to the remedial costs.
Once the relevant local authority has accepted a notice for the care and maintenance of a closed churchyard under section 215(2) Local Government Act 1972, it has the same responsibility for maintenance as previously lay with the PCC under subsection (1) of the Act. In the instant case, this relates to the trees as explored in L E Jones v Portsmouth City Council  1 WLR 427, CA.
Decision of the court
The issue before the consistory court was therefore: if a faculty were to be refused so that the trees could remain, the house would need to be underpinned and the Council would be liable for the cost of those works, i.e. a sum in excess of £40,000, and possibly considerably greater. However, notwithstanding the concern on all sides as to the loss of amenity and in spite of its own tree officer’s opposition, the Council decided that it was not prepared to pay out a sum of that magnitude.
The general practice of consistory courts is not to go against the decisions of secular authorities, unless there is a specifically ecclesiastical dimension to a problem not otherwise taken into consideration, for example in White Waltham (No 2)  Fam 146. The Chancellor stated that the Council had undertaken a perfectly proper balancing exercise and concluded that it was not willing to pay the damages that would be payable if it were to refuse to fell these trees – however desirable that might otherwise be from the point of view of their undoubted amenity value. In these circumstances, the he did not deem it appropriate for the consistory court to force it to do so.
Consequently, he decided that a faculty should issue to authorize the proposed felling, subject to a condition that within 12 months of the works being carried out two replacement trees should be planted in the churchyard at a location to be approved by the DAC, and of size and species to be approved by it (or in default of such approval by the court).
Although such cases of liability are relatively uncommon, the summary of Re St Kenelm, Upton Snodsbury  Worcester Const Ct, in (2002) 6 Ecc LJ 293-294] noted that Chancellor Mynors “reviewed in some detail the law relating to trees in churchyards”. The document Tree Preservation Orders. A Guide to the Law and Good Practice (Department of the Environment, Transport and the Regions, 1999) referred to in Re St Kenelm was withdrawn on 22 June 2015; it was archived and replaced by the new planning practice guidance which was launched 6 March 2014, which includes inter alia Tree Preservation Orders and trees in conservation areas.