A recent decision of the Upper Tribunal (Lands Chamber) has provided important clarification for claimants pursuing compensation claims arising from Tree Preservation Orders (TPOs).
In Royal Sun Alliance Insurance Limited v London Borough of Harrow (19 May 2026), the Tribunal confirmed that it does have jurisdiction to award costs in TPO compensation proceedings where the claim concerns damage caused by retained trees.
The case arose following the refusal of consent to fell two trees which were alleged to be causing subsidence damage. The insurer pursued compensation under section 202E of the Town and Country Planning Act 1990 and Regulation 24 of the Tree Preservation Regulations 2012. The substantive claim settled by agreement for £30,000 compensation, but the parties disputed whether the Tribunal could also award legal costs.
The local authority argued that TPO compensation claims did not fall within the category of “injurious affection of land” under Rule 10(6)(b) of the Tribunal Procedure Rules and therefore the Tribunal had no jurisdiction to award costs.
The Tribunal rejected that argument.
In reaching its decision, the Tribunal relied on established nuisance and subsidence principles, including the position that tree root subsidence may constitute a continuing private nuisance and that reasonable remedial or preventative measures, such as root barriers or underpinning, may be recoverable.
Importantly, the Tribunal held that the refusal of consent to fell the trees resulted in damage to the property, that the claim shared the characteristics of “injurious affection” identified in earlier authorities, and that the costs of protective measures flowed from damage which would otherwise have been actionable in nuisance.
The Tribunal also confirmed that the earlier decision in Burge v South Gloucestershire Council remains good authority for the proposition that costs can be awarded in TPO compensation claims.
The practical significance of the decision is considerable. TPO compensation claims can involve substantial technical evidence and legal costs. Confirmation that successful claimants may recover costs is likely to affect how compensating authorities assess and approach such claims moving forward.
The decision is another reminder of the complex interaction between tree protection legislation, nuisance law and subsidence claims, particularly where insurers and property owners face ongoing damage caused by retained trees
