Where a tree is implicated in subsidence damage to a property, but that tree is protected by a tree preservation order, legal action can involve bringing a claim for compensation against the planning authority.
Whilst the authority do not own the tree, they can be brought into a legal claim where they have been asked for consent to fell a protected tree to stop ongoing subsidence damage to a property, but have refused to give that consent. A legal claim for compensation can then follow to pursue from the planning authority compensation equivalent to what has had to be spent to stabilise the property as a consequence of the refusal notice.
These cases are heard at the Upper Tribunal, Lands Chamber. Attached is the Chubb v Enfield decision, released earlier this month.
A quick precis of this decision, pending reading the full document:
🟢Background:
Chubb European Group SE (the claimant), the insurer of 98 Old Park Ridings, Enfield, sought compensation under Regulation 24 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. The claim arose from Enfield London Borough Council’s (the authority’s) refusal to grant consent to fell an oak tree (T1) that was subject to a Tree Preservation Order (TPO).
The property suffered cracking, first noticed in 2014, allegedly due to subsidence caused by T1’s roots extracting moisture from the clay subsoil. Following three refusals by the authority to allow felling, the claimant undertook underpinning works in 2018–2019 at a cost of £143,480.75 (claimant’s assessment) or £99,212.98 (authority’s assessment) and sought compensation.
🟠Key Issues:
Causation – Was T1 a substantial and effective cause of the subsidence?
Foreseeability – Was the loss (cost of underpinning) reasonably foreseeable by the authority when they refused consent?
Mitigation – Did the claimant fail to take reasonable steps to prevent or reduce the loss?
Quantum of Loss – If the claim succeeded, what would be the appropriate compensation amount?
🔴Findings & Decision:
The Tribunal dismissed the claim, ruling that the claimant failed to prove on the balance of probabilities that T1 was the cause of subsidence. No evidence of severe desiccation in the subsoil at the time of investigation. Seasonal movement patterns were inconclusive – while subsidence occurred, there was no clear cyclical pattern linked to tree roots. The identified roots may have belonged to another tree (T2), meaning T1’s influence was uncertain. Other possible causes (e.g., drainage failure and land slope) could not be ruled out. The authority acted reasonably in refusing consent, considering alternative solutions like root barriers.
🔵Conclusion:
Since causation was not established, the other legal questions did not need to be decided, and the claim was dismissed.
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