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A landowner is not entitled to compensation when a Tree Preservation Order
is made. However, there will often be a right of compensation if the LA then
refuses an application for consent – ie to cut down, uproot, top or lop, or
for the imposition of conditions. Indeed, it is often not appreciated that an
entitlement to compensation can arise at that stage.
Accordingly, a landowner who wants to carry out work to a protected tree
should fi rst apply to the LA for consent. If that is refused, then the landowner
may be able to claim compensation under the 1999 Regs. Note that if the
TPO was made under the earlier (1969) Regs then there are wider exceptions
as to when compensation does not have to be paid – in particular, if the LA
has certifi ed that the tree is of outstanding or special amenity value. In any
event, whichever Regs apply, no compensation will be paid for the loss of
development value, or other diminution in the value of the land. Examples of
compensation include:
- Consent was granted to prune 26 chestnut trees in a garden, on
condition that the work was done by an approved contractor.
Compensation was awarded for the total cost of the contracted work
( Deane [1992] ).
- Consent to fell a tree was refused, and the owner sought specialist
advice about the effects the tree might be having on the foundations
of the house. It was held this was a cost properly incurred and thus
claimable as compensation ( Fletcher [1992] ).
- Consent was refused to fell a tree and the owner sought expert
advice which confi rmed the roots were damaging the foundations.
He eventually recovered compensation for the costs of underpinning
( Buckle [1996] ).
© Practical Lawyer
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July 2008 |
