TPO Tree v Recently built garage

[Sheepy]

Sounds like a case of silly games and silly prizes to me. 

[Gary Prentice]

16 hours ago, Nimby said:

Scenario: Nice tree, recently re-built garage. Garage owner submits TPO app for removal based on foreseeable damage (it is very close and tree now rubbing on soffits) and states that compensation will be sought from the LA if application is refused.

 

Is there any existing case law of a similar situation or has anyone any experience of said events?

 

Tree is TPO'd and has a reasonable level of amenity. Also, at least one neighbour has said they would not like to see it removed.

 

Any thoughts appreciated. 

  

Thinking a bit more about this. 

 

I think that there is a couple of possible scenarios as to how this will go forward. 

1. If the garage was rebuilt and didn't require any official planning department input, I'd guess that the LA would argue that the build was undertaken without consideration of the protected tree. So the owners actions have basically created a situation where a conflict is arising which potentially could lead to loss of the tree. I stand to be corrected, but there may even be grounds for the LA to pursue a contravention if the tree eventually has to go.

 

2. If a planning application was required to rebuild the garage it may be a whole different story and the LA will probably go through everything with a fine to comb to ascertain that both the plans were sufficient to identify the potential for conflict, current or future, between the building and the protected tree. Further from that, is the construction exactly as illustrated by the plans ( is the exterior wall closer to the tree than shown by the plans?) 

 

With the information, about the history, provided it's impossible to draw conclusions. If the planning department have messed up (not unknown) by not identifying the conflict while consenting the build, in my experience they'll probably cave and consent removal. But, if the finger of blame can be pointed elsewhere, then it's going to get messy.

[Nimby]

Thanks Gary,

 

Just to confirm, the garage was dealt with as PD (permitted development) and was built on the original raft.

 

Canal Navvy, that's is my concern.  

 

However, I have found this in the Governments guidance:

 

Tree Preservation Orders and trees in conservation areas

 

What limits the local authority’s liability to pay compensation?

Legislation limits the authority’s liability by setting out circumstances in which a claim cannot be made and circumstances in which compensation is not payable.

Subject to specific provisions relating to forestry operations in protected woodland, any claimant who can establish that they have suffered loss or damage as a result of an authority either refusing consent or imposing conditions in respect of protected trees is entitled to claim compensation. However the authority’s liability is limited. In such cases, compensation is not payable for any:

• loss or damage which was:
  • reasonably foreseeable by that person; and
  • attributable to that person’s failure to take reasonable steps to avert the loss or damage or mitigate its extent;
• loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused or was granted subject to conditions;

Interesting stuff!!

Edited February 21, 2019 by Nimby

[Gary Prentice]

23 minutes ago, Nimby said:

Thanks Gary,

 

Just to confirm, the garage was dealt with as PD (permitted development) and was built on the original raft.

 

Canal Navvy, that's is my concern.  

 

However, I have found this in the Governments guidance:

 

Tree Preservation Orders and trees in conservation areas

 

What limits the local authority’s liability to pay compensation?

Legislation limits the authority’s liability by setting out circumstances in which a claim cannot be made and circumstances in which compensation is not payable.

Subject to specific provisions relating to forestry operations in protected woodland, any claimant who can establish that they have suffered loss or damage as a result of an authority either refusing consent or imposing conditions in respect of protected trees is entitled to claim compensation. However the authority’s liability is limited. In such cases, compensation is not payable for any:

• loss or damage which was:
  • reasonably foreseeable by that person; and
  • attributable to that person’s failure to take reasonable steps to avert the loss or damage or mitigate its extent;
• loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused or was granted subject to conditions;

Interesting stuff!!

Okay. 

Just to check, is the tree owner and the garage owner the same person?

 

 

[Gary Prentice]

6 minutes ago, EdwardC said:

The threat of claiming compensation, or being taken to Court, if they don't do what the applicant wants is something Tree Officers hear all the time, and has little, if any, impact on any of them.

[Adam M]

Just out of interest, how do others approach otherwise PD apps where trees may be affected? Rightly or wrongly, I take them as tpo apps with relevant 5837 bits, but should they be dealt with as standard planning apps?

[donnk]

cut down.

 

pay paltry if any fine.

[Nimby]

On ‎21‎/‎02‎/‎2019 at 10:14, Gary Prentice said:

Okay. 

Just to check, is the tree owner and the garage owner the same person?

 

 

Yes, the tree was TPO'd, not long after the land was purchased, due to a in coming Planning App.

[donnk]

3 hours ago, EdwardC said:

Ok, I'm starting to see whats happening, maybe. Land bought and planning app submited for something. Tree TPO'd. App possibly refused or withdrawn after being told it had no chance. Delapidated garage near tree rebuilt under PD. Tree now allegedly needs to be removed or else Council face compensation claim. Tree goes opening site to development. 

 

Or am I being cynical.

If the above scenario is correct then the land value would rise significantly. If the Council are on the ball they'll persue a proceeds of crime order.

if the tree is accidentally killed by plant, geniune mistake. fine paid. everyone happy.

 

your in dreamland if you think plod would prosecute POCO for a bloody tree!

[Adam M]

On 21/02/2019 at 21:11, EdwardC said:

They aren't apps, planning, or TPO. Permitted Development is just that permitted, and they don't have to apply. You can give good advice, but you can't demand surveys, impact assessments or anything else. To do so is probably maladminisration leading to injustice, and you could find it costs the Council if they pursue a complaint. If they damage or destroy a TPO tree whilst implementing their PD rights then you can take enforcement action. If they don't then there's nothing you can do.

I meant in the wider context, where an extension would otherwise have been PD but to build it they have to carry out a prohibited activity e.g. root severence for foundations or pruning to fit it in. The PD rights don't trump the TPO therefore surely an app of some sort should be required?