Royal Sun and Alliance Insurance Limited v London Borough of Harrow

This reference relates to the claimant’s claim for statutory compensation from the compensating authority pursuant to s.202E of the Town and Country Planning Act 1990 and Regulation 24 of The Town and Country Planning (Tree Preservation) (England) Regulations 2012, following the compensating authority’s refusal to grant permission to the claimant to fell two trees (‘the Trees’). On 26 January 2026 the parties agreed settlement terms and by consent the Tribunal ordered that the compensating authority pay the claimant compensation of £30,000.

The claimant made an application on 5 February 2026 for the award of their costs of in accordance with paragraph 16.10 of the Tribunal’s Practice Directions of January 2024. The compensating authority’s position is that the Tribunal does not have jurisdiction to award costs.

Regulations 24 (8) and (9) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 provide:

“(8)

Any question of disputed compensation under this regulation shall be

referred to and determined by the Upper Tribunal.

(9)

In relation to the determination of any such question, the provisions of

section 4 of the Land Compensation Act 1961 (costs for proceedings of Upper

Tribunal) and sections 22 (Tribunal Procedure Rules) and 29 (costs or expenses)

of the Tribunals, Courts and Enforcement Act 2007 shall apply subject to any

necessary modifications and to the provisions of these Regulations.”

Section 22 of the 2007 Act provides for the making of Tribunal Procedure Rules.

Rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (last

The claimant submits the Tribunal has jurisdiction to award costs, since the reference constitutes “proceedings for injurious affection of land” within the meaning of paragraph (6)(b) of Rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (‘the Tribunal Rules’).

The compensating authority submits says that the claimed compensation does not fall within rule 10(6)(b) of the Rules and there is no other provision within Rule 10 that allows for the award of costs in the circumstances of the case.

The claimant accepts that useful, but not comprehensive, guidance as to the meaning of “injurious affection of land” is provided in BPP (Farringdon Road) Limited v Crossrail [2015] UKUT 0356 (LC), A Grantor v A Grantee [2023] UKUT 23 (LC), Kitchen v Kent CC [2024] 370 (LC) and Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1.

The claimant says that whilst BPP does not set out an exhaustive test for the scope of Rule 10(6)(b); it does provide generally applicable guidance. At paragraph 53 the Tribunal (Martin Rodger QC, Deputy President and Peter McCrea FRICS) commented that:

“Without exhaustively defining the scope of sub-paragraph (b), we are substantially in agreement with Mr Barnes’ alternative submission, and we consider that injurious affection generally connotes damage to land which would have been wrongful but for the existence of statutory powers. Moreover, it generally connotes damage to land caused by activity conducted elsewhere. We do not consider that it is apt to describe activity which, but for statutory authority, would amount to trespass. As Lord Hoffmann explained in Wildtree Hotels:

“In practice … a claimant has to show that but for the statute he would have had an action in damages for public or private nuisance.”

While that cannot be taken to be an exhaustive statement for the purpose of construing the Tribunal’s Rules it does identify the essence of injurious affection and we would expect that claims for compensation which share those characteristics would fall within the scope of rule 10(6)(b).”

The claimant submits that where tree roots cause clay shrinkage subsidence, the “impairment of the load-bearing qualities of the soil” (because of the desiccation of the soil caused by the tree roots) in itself constitutes damage sufficient to found of a claim in the tort of private nuisance (Delaware Mansion v Westminster City Council [2001] UKHL 55 at [33]). Cracking in the building constitutes consequential damage (Delaware at [33]) and where the tree remains in place, and therefore cause a continuing nuisance, a claimant may spend money protecting his property against future damage (that is in abating the nuisance). Further, reasonable expenditure incurred in doing so is recoverable as damages in nuisance (Delaware at [33]-[34], Davies v Bridgend County Borough Council [2024] UKSC 15 at [61], [66]-[67]). The claimant notes that in Delaware the protective measure adopted by the claimant was the deepening of the property’s foundations by underpinning. In this claim, the protective measure adopted by the claimant was the installation of a root barrier.

The claimant further submits that the encroachment of roots from a defendant’s tree onto a claimant’s land is not a trespass, but a nuisance (Lemmon v Webb [1894] 3 Ch. 1 (CA) at [24]).

The compensating authority commences its analysis at the Tribunal’s decision in Burge v South Gloucestershire Council [2016] UKUT 0300 (LC), a case on identical grounds to this case. In Burge, following the award of compensation the Tribunal dealt with costs in an addendum to the decision, beginning at paragraph 50:

“We have now received submissions on costs. It is not in dispute that the Tribunal has jurisdiction to award costs in this claim, which falls within ‘proceedings for injurious affection of land’ at paragraph (6)(b) of Rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, as amended (“the Rules”).”

The compensating authority submits that the understanding in Burge (and other TPO compensation cases in which costs have been awarded) is wrong. It says that a claim for compensation under reg 24 of the 2012 Regulations does not constitute “proceedings for injurious affection of land”, and there is no other provision in rule 10 that allows for an award of costs in the circumstances of this case.

The compensating authority also notes that none of the three cases (BPP, A Grantor and Kitchen) where the scope of rule 10(6)(b) has been considered, relate to compensation arising from a Tree Preservation Order.

It further submits that the claim is not for damage to property but for the cost of installing a root barrier and that neither the TPO nor the refusal of consent to fell constitutes off-site activity or works.

It is clear from the Tribunal’s Rules that the only means by which the Tribunal could make an award of costs is by reference to paragraph (6)(b), in other words, that compensation for works arising from a Tree Presevation Order constitute proceedings for injurious affection of land.

I am of the view that the Tribunal’s decision in BPP is definitive. That decision restated Lord Hoffman’s explanation of what constitutes injurious affection and the judgement came after the substantial amendment of the Tribunal’s Rules in 2013. In my view refusal of consent to fell the Trees by the compensating authority resulted in the damage to the property. It shares the characteristics of injurious affection identified in Wildtree and reiterated in BPP.

The ‘damage to land caused by activity conducted elsewhere’ is the cracking and subsidence which resulted from the compensating authority’s refusal to allow felling of the Trees. The compensating authority’s contention that the claim is not for damage to property but for the cost of installing a root barrier misses the point; the barrier is the consequence of the damage that would have been wrongful but for the existence of statutory powers.

The decision on costs in Burge which was handed down a year after BPP, affirms that the Tribunal, under its current Rules has the power to award costs in cases involving Tree Preservation Orders. Nothing has occurred since Burge that that would lead me to a different conclusion. The compensating authority will therefore bear the costs of the claimant, subject to detailed assessment by the Registrar.