Compensation claims after a refusal under a tree order

Refusing consent for works to a tree protected by a tree preservation order can make a local planning authority liable to pay compensation. The right sits in section 203 of the Town and Country Planning Act 1990, with the detail in the tree preservation regulations, and it is one of the least used remedies in the planning system. That is partly because the exclusions remove the largest head of loss, and partly because very few applicants realise the right exists at all.

It is worth knowing about anyway, because in a narrow set of cases it is real money.

When compensation becomes payable

Three things have to line up.

There must be an order in force. The regime applies to trees protected by a tree preservation order made under section 198. It does not apply to trees in conservation areas that are not the subject of an order, where the process is a notice rather than an application.

There must be a decision that refuses consent or grants it subject to conditions. A decision granting consent in full generates no claim, however long it took.

And there must be loss or damage caused by that decision. This is the part claimants underestimate. The loss must flow from the refusal, and it must be capable of being evidenced.

Compensation is claimed from the authority that made the decision, not from the courts in the first instance.

Losses that can be claimed and losses that cannot

The exclusions do most of the work.

Loss of development value is outside the scheme. So is other diminution in the value of the land. A refusal that prevents a plot from being developed does not generate a claim for the difference in land value, and that removes the sum most people are thinking of.

Loss or damage that was not reasonably foreseeable when consent was refused is excluded. So is loss the claimant could have avoided or reduced by taking reasonable steps. A claimant who watched damage worsen without acting will meet that argument.

There is also a low monetary threshold below which no claim is payable, which is intended to keep trivial claims out of the system. Check the current figure in the regulations rather than relying on a remembered number.

What is left tends to be direct and modest.

• The cost of remedial works made necessary by having to retain the tree, such as underpinning, root barriers or drainage repairs.
• Repeated costs of clearing damage where the tree causes it and cannot be removed.
• Costs incurred in reliance on an expected consent that was then refused, where those costs were reasonably incurred.
• Losses to a commercial operation directly caused by retaining the tree, subject to the exclusions.

Where the loss involves damage to a building, the evidence usually has to be structural. A Structural Survey that identifies the mechanism, links it to the retained tree and quantifies the remedy is the document a claim stands or falls on.

The time limit for making a claim

Twelve months from the decision. Where an appeal is made against the refusal, twelve months from the appeal decision.

Treat the deadline as absolute. Put the date in a diary when the decision notice arrives, and write to the authority within the period even if the full loss is not yet quantified, setting out the basis of the claim and reserving the right to particularise it. A claim intimated in time and detailed later is in a far stronger position than a fully worked claim submitted a fortnight late.

Evidence needed to support a figure

Compensation claims are quantum exercises. The authority will not pay against assertion.

Assemble four categories.

1. The decision itself, with the authority's reasons, and the appeal decision where there was one.
2. Arboricultural evidence describing the tree, its condition and the works applied for, ideally from the tree survey and the application that preceded the refusal.
3. Causation evidence linking the retained tree to the loss: engineering reports, monitoring data, photographs over time, contractor reports.
4. Quantum evidence: quotations, invoices, professional fees, and where a business loss is claimed, accounts showing the effect.

Keep the causation and quantum separate in the presentation. Authorities frequently accept that a loss occurred while disputing that it was caused by the refusal, and a claim that runs the two together invites a global rejection.

Reasons given by the council and their effect on a claim

Read the decision notice closely. The reasons an authority gives shape what can be argued later.

Where the authority has refused because the works were not justified on arboricultural grounds, the claim is harder, because the applicant will struggle to show that the loss was a necessary consequence rather than a matter of preference. Where the authority accepts the arboricultural case but refuses on amenity grounds, the position is more favourable to a claimant, because the reason concedes that the works had a proper basis.

That has a tactical consequence at application stage. An application supported by a properly reasoned arboricultural case, addressing the amenity value openly, produces a decision notice that is more useful whichever way it goes than one refused for lack of information.

Disputes and how they are resolved

If the authority rejects the claim or disputes the amount, the matter is referred to the Upper Tribunal, which determines compensation questions of this kind.

That is a formal process with its own procedure and costs, and the arithmetic rarely favours a claimant pursuing a few thousand pounds through it. Most claims that produce a payment are settled with the authority on the basis of documented costs, after correspondence rather than proceedings.

Take advice before referring a claim. The cost exposure can exceed the claim.

Practical value of the remedy

Be realistic. The compensation right is a real remedy in a narrow class of case: subsidence or drainage damage attributable to a tree the owner has been required to keep, or wasted expenditure incurred in reliance on a consent that was refused.

It is not a route to recovering development value, and it will not answer the situation most owners find themselves in, which is a tree standing where they wanted to build.

Where that is the position, the better strategies are earlier. Design around the root protection area rather than through it. Apply for consent with an arboricultural case that engages with amenity rather than dismissing it. Offer replacement planting in a Landscape Strategy so the authority can see the net effect on the character of the area. And where a tree is dangerous or dead, use the exemption route with the required notice rather than an application, because the exemptions are the fastest answer when they apply.

An illustrative example: a Victorian terrace with documented clay shrinkage subsidence attributable to a protected lime, where consent to fell was refused and the owner underpinned instead. The underpinning cost, the monitoring, the engineering fees and the making good are the shape of a claim. The uplift in value from a bigger rear extension is not.

Set the argument out in a Planning Statement style covering letter that follows the structure of the regulations, and give the authority a claim it can settle rather than one it has to interpret.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.