Upper Tribunal hands down ruling on costs awards in cases involving tree preservation orders

That finding has come from Upper Tribunal member Mark Higgin in a case in which the London Borough of Harrow argued the tribunal lacked powers to make a cost award in favour of Royal Sun and Alliance Insurance.

The insurer had claimed statutory compensation from Harrow under s.202E of the Town and Country Planning Act 1990 and Regulation 24 of The Town and Country Planning (Tree Preservation) (England) Regulations 2012, after Harrow refused it permission to fell two protected trees.

In January 2026 the parties agreed a settlement under which Harrow would pay compensation of £30,000 for damage caused by the trees.

Royal Sun and Alliance then claimed for costs but Harrow said the tribunal lacked jurisdiction to award these as 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.

Harrow submitted the claimed compensation does not fall within rule 10(6)(b) and there is no other provision within Rule 10 that allows for costs in the circumstances of the case.

Mr Higgin said: “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 Preservation Order constitute proceedings for injurious affection of land.”

He said Harrow’s refusal of consent to fell the trees resulted in the damage to the property, and the 'damage to land caused by activity conducted elsewhere' was the cracking and subsidence which resulted from its refusal. 

Harrow’s contention that the claim was 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”, he said.   

Mr Higgin said earlier decisions had affirmed the tribunal had powers to award costs in cases involving Tree Preservation Orders and nothing subsequent would lead him to a different conclusion.

Mark Smulian