Interpretation of law on compensation.

[roythegrass]

We have an 18m TPO oak tree in our garden 11m from the house. We are on the coast and regularly experience severe winds and gales during which the tree sways considerably. The house was built in 1986 since which time 5 other trees in the garden have been felled by high winds.
Applications to have the tree pruned by the previous property owner have been limited by the council to a maximum of 85cm. We propose applying for pruning/pollarding to a safe height of 11m. The council’s tree officer has already indicated that such an application will be refused so we will go to appeal.
Specifically in reference to compensation (should the tree fall onto the house) our application will, amongst other compelling reasons, include the following statement:

3)      DUTY OF CARE

Occupier’s obligations in respect of safety see Occupiers Liability Act 1957 & 1984 Section 2  

Self explanatory - we would be exposed to a claim for negligence under the above acts if it were shown that we failed to take appropriate precautions to mitigate a known foreseeable risk of injury or damage to property. Further, inaction on our part would be no defense as would our failure to repeat our application to the council and on appeal to The Secretary of State every twelve* months not least to cover our and our insurers position in respect of compensation under section 24 (2) (a) of The Town and Country Planning (Tree Preservation) (England) Regulations 2012.
Twelve month limit of council’s liability after decision on application/appeal and to comply with our household insurers terms of insurance – notifying and mitigating a known risk.

*In reality a repeat application would need to be submitted every 10 months to allow for the 8 week delay between application and the council’s decision.

Perhaps I’m misinterpreting the law but would appreciate others opinion.
Thanks
Roy

 

[jfc]

Tricky situation. I am not clear about the 85cm you mention, what exactly has the TO agreed to. Also if you decline there proposed pruning is that not increasing the risk and absolving them of responsibility? All the best with it.

[roythegrass]

18 minutes ago, jfc said:

Tricky situation. I am not clear about the 85cm you mention, what exactly has the TO agreed to. Also if you decline there proposed pruning is that not increasing the risk and absolving them of responsibility? All the best with it.

The only comment by the tree officer is that they would only allow the amount of pruning previously allowed - 85cm. Leaving or removing only 85cm of the spindly 'twigs' at the tip of the branches would make no difference to the potential damage were the tree to fall.

[monkeybusiness]

Is there anything wrong with the tree? Why is it going to fall down? Did you buy the house with the intention of felling the tree from the outset? 

[Ian C]

Can’t really understand your problem, trees move in the wind, there ment to and the swaying actions actually improves there strength, if they didn’t move they would snap! The council want to keep a nice old tree hence the delicate pruning only, to mitigate any risk get a tree report done every 3 to 5 yrs by a consultant then you have taken all due care.

In reality I think it’s just an excuse for more light or less leves or that sort of thing and the council can see that.

 

[jfc]

The only comment by the tree officer is that they would only allow the amount of pruning previously allowed - 85cm. Leaving or removing only 85cm of the spindly 'twigs' at the tip of the branches would make no difference to the potential damage were the tree to fall.

Removing small branches like that will reduce the wind sail effect and reduce the sway in strong winds. I agree with the other poster advising getting a tree report done. The report will either reassure you re the tree or can identify defects which can form the basis of another application to the council.

[jfc]

A photo of the tree would be helpful. You might get some useful comments about any structural issues.

[Adam M]

Firstly, you must have suffered a loss of £500 or more within a year of a refusal. Secondly, it must have been foreseeable that the damage was going to occur. If the tree does not show any outward signs of structural weakness and you have not provided any expert evidence to the contrary, you're not going to get anywhere. 

 

'if the tree were to fall' is not expert evidence; its speculating on a worst case scenario. 

 

As others have said, get an arb consultant to provide you with a safety report. 

Edited March 18, 2018 by Adam M

[Khriss]

I would like to see a survey report on this tree from the last five years , then you could go forwards with this , K ( Obvs if its yr tree you pay for that - but then under yr duty of care you have been doing this if its yr trees )

[daltontrees]

5 hours ago, roythegrass said:

Perhaps I’m misinterpreting the law but would appreciate others opinion.

 

Thanks
Roy
 

 

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