Tree preservation order – Compensation – Limitation – Time limit of 12 months for making compensation claim in respect of refusal of consent to remove protected tree – Claimant informing defendant authority of intention to make compensation claim for cost of underpinning works as soon as works completed – Whether valid claim made in time – Whether letter amounting to claim for that purpose – Preliminary issue determined in favour of claimant
The claimant owned a terraced house in London N8. A London plane tree, which had been protected by a tree preservation order (TPO) since 1967, stood at the end of her garden. In 2007, she applied to the defendant council for consent to remove the tree on the ground that roots extending under her property were causing subsidence and consequent damage to the superstructure of the building. The defendants refused that application in November 2007. The claimant carried out underpinning works to her property instead and sought to recover the cost of those works from the defendants. Under the terms of the TPO, a person who suffered loss or damage as a consequence of any refusal of consent would be entitled to compensation if a claim were made in the specified manner. The TPO required the claim to be made to the relevant authority in writing within 12 months from the date of the decision. Accordingly, the claimant had to have made her claim by November 2008.
In October 2008, she wrote a letter to the defendants headed “Notification of Application for Compensation”. The purpose of the letter was to notify the defendants that, as soon as the underpinning works were completed, the claimant intended to apply to recover the cost of those works, with a reference to the tribunal if no settlement were reached; a figure of up to £40,000 was posited. The defendants wrote to the claimant in late November 2008, stating that since no compensation claim had been made within the 12-month time limit any such claim would be barred. They maintained that the October 2008 letter did not constitute a claim for compensation with the meaning of the TPO.
The claimant referred her claim for compensation to the Lands Tribunal, which determined, as a preliminary issue, whether a valid claim had been made under the TPO.
Decision: The preliminary issue was determined in favour of the claimant.
For a document to constitute a “claim” for compensation where the statutory provisions did not prescribe what the claim should contain, it was not necessary for that document to set out the main heads of claim or to quantify the claim. That a claim was being made could be inferred from the document: International Traders Ferry v Adur District Council [2004] EWCA Civ 288; [2004] 2 EGLR 89; [2004] 23 EG 122 applied. The October 2008 letter was an assertion of the claimant’s entitlement to compensation. It had described the damage caused by the tree and had stated the reason why consent had been sought for its removal, asserting that the works of underpinning were being carried out as a direct result of the refusal of consent. It had further stated the claimant’s intention to recover the cost of those works by a reference to the Lands Tribunal if no settlement could be reached. Having received that letter, the defendants could not have doubted that the claimant was asserting an entitlement to compensation, and that although the claim was not yet quantified because the works were not then completed, they could expect a subsequent quantified claim. The inference that a claim for compensation was being made was inescapable. It was not necessary for the letter to say: “I hereby claim compensation”. Although an explicit statement to that effect would have avoided any argument, its omission did not vitiate the effect of the letter. Accordingly, the claimant had made a valid claim for compensation in time and the tribunal had jurisdiction to determine the reference made to it.
Stuart Benzie (instructed by Eversheds LLP, of Cardiff) appeared for the claimant; Charles Mynors (instructed by the legal department of Haringey London Borough Council) appeared for the defendants.
Sally Dobson, barrister
