Chubb European Group SE v Enfield London Borough Council

Compensation for loss allegedly caused by refusal of consent to fell a protected tree requires proof, on the balance of probabilities, that the refusal caused the claimed loss. In a subsidence claim, relevant evidence may include subsoil desiccation, seasonal and cyclical structural movement, and whether the tree’s roots could have extracted sufficient moisture to cause damage. Expert speculation cannot replace factual evidence, particularly where causation is assessed by reference to the information available when consent was refused. Failure to establish the causal link defeats the compensation claim, without the need to determine foreseeability or quantum.

The claimant, an insurer, sought compensation under regulation 24 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. It claimed the cost of underpinning a property after the local planning authority refused a third application for consent to fell a protected oak tree adjoining the property.

The parties disputed whether the tree caused subsidence damage, whether the claimed underpinning costs were reasonably foreseeable and whether reasonable mitigation steps had been taken. The reference was made to the Upper Tribunal on 31 January 2024. The central issue was whether the claimed costs were incurred in consequence of the authority’s refusal.

1. Claim dismissed. The claimant failed to establish that the authority’s refusal of consent caused the claimed underpinning loss. The remaining issues of foreseeability, mitigation and quantum therefore did not arise.
2. Under regulation 24 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012, the claimant had to establish, on the balance of probabilities, that the loss or damage was caused in consequence of the refusal. The relevant date was 2 February 2018, and the determination had to be made on the evidence available to the authority at that date.
3. The causal assessment required consideration of:
   • the extent of subsoil desiccation, indicating removal of moisture by vegetation;
   • whether structural movement showed a seasonal and cyclical pattern of shrinkage and recovery; and
   • whether the oak tree and its roots could have extracted sufficient moisture to cause subsidence at the distances involved.
4. The absence of evidence of severe or very severe desiccation was a significant weakness in the case concerning the extension. The monitoring around the garage showed seasonal movement, but the cause of the progressive downward movement remained speculative. The evidence concerning the extension did not show a sufficient pattern of seasonal shrinkage and recovery.
5. Although oak roots were identified, they were few, juvenile and found only to a depth of 2 metres. They might have originated from either of two nearby oak trees. It was speculative to infer that they were sufficiently extensive or continued to extract enough water after drainage repairs to cause the progressive movement.
6. Expert opinion was valuable in interpreting the technical evidence, but speculation beyond the available factual evidence could not establish causation. The evidence did not prove, on the balance of probabilities, a causal link between the tree and the subsidence damage.

The matter was a first-instance compensation reference to the Upper Tribunal under regulation 24(8) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012, lodged on 31 January 2024. The decision records a right of appeal to the Court of Appeal on a point of law, with permission.