TPO - Significant Breach and rectification

[bullish]

Hi all,

Hope you can provide some words of wisdom on this one.

I'm looking at purchasing a property in Sussex and have just been informed by my solicitors of a "significant breach" of TPOs although there does seem to be a little confusion over what side of the fence the protected trees were on...

Looking at old photos of the property's garden I cannot see any trees which would likely have TPOs but anyway...

Clearly the next steps are for someone to ascertain what side of the fence the trees were on and whether they were felled due to disease or other justifiable reason.

 

Let's assume worst case the trees have been felled on the side of the fence belonging to the property I am purchasing.

1. I'm unclear on the terminology I've seen around replacing the tree felled. Is this like-for-like or with a sapling? Clearly the cost differential could be huge? I assume the latter, can anyone confirm and refer me to the legislation? I'm happy to replace the trees!
2. Is it possible/reasonable to reach out to the Tree Planning Officer and come to some form of agreement? I want to do the right thing here (hopefully not too expensive)
3. If I can achieve 2. is there anything else I should be getting assurance with, just from the practicality of replacing a tree perspective (not a legal perspective) that I should be aware of?

 

Many thanks in advance

 

 

 

 

 

 

[David Dobedoe]

(I'm no legal expert) If you don't own the trees and didn't do the work I don't understand how the work that has been done could affect you in terms of prosecution. If you buy the land the tree/s were on you perhaps could be accused of the work if or when it comes to light? I would think that the best course of action is for somebody to talk to the tree officer. The issue here maybe that he needs to take action on whoever has been involved with the work which is a bit difficult if they are either going to be your next door neighbour or the people you are trying to buy from. Possibly a better way forward once the tree ownership is clear is for the owner to approach the tree officer  with the aim of resolving the situation without prosecution. Mistakes happen and it maybe more in the councils interests to resolve with considered replanting or...  I look forward to seeing what others have to say.

[daltontrees]

23 minutes ago, David Dobedoe said:

(I'm no legal expert) If you don't own the trees and didn't do the work I don't understand how the work that has been done could affect you in terms of prosecution. If you buy the land the tree/s were on you perhaps could be accused of the work if or when it comes to light? I would think that the best course of action is for somebody to talk to the tree officer. The issue here maybe that he needs to take action on whoever has been involved with the work which is a bit difficult if they are either going to be your next door neighbour or the people you are trying to buy from. Possibly a better way forward once the tree ownership is clear is for the owner to approach the tree officer  with the aim of resolving the situation without prosecution. Mistakes happen and it maybe more in the councils interests to resolve with considered replanting or...  I look forward to seeing what others have to say.

I agree it's not an issue for a purchaser. It should be enough to record the conditin of all trees present at the date of entry.

 

What could be interesting, though (and I've never encountered this) is if the Council prosecuted the previous owner for removal or destruction of a tree and insisted on replanting. If the previous owner no longer had access to the land and hadn't reserved the right for this purpose in the contact of sale, would the replanting obligation be enforceable on the new owner?   Since the (English ) Act says " it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. " I expect the answer might be yes. A contract to purchase would normally contain a emchanism for the purchaser to seek redress agains the seller, even (especially) after entry. Not guaranteed, though.

[bullish]

Thanks to everyone who have responded so quickly so far.

 

As I understand the law.. as the purchaser I would take-over the liability to replace the trees but I could not be criminally prosecuted for the removal (as I did not commit the crime).

 

Thank you for this extract:

"it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can."

Realistically how many people can actually afford to replace a full size tree? Surely this stretches to the echelons of >£5,000 quite easily - it would need craning in?! 

Reasonably can therefore for myself would be not very soon! However, as indicated I understand the whole principle at play here and would happily replant a sapling of a similar species.

 

It seems to me there must be a pragmatic expedient here. Prosecute and seek damages from the individual(s) who committed the crime (this would deter anyone from committing themselves), use the damages where possible to rectify the damage... but otherwise surely it has to be the goodwill of the buyer to do anything further. As indicated, I'm not buying a multi-million pound mansion here and want to do the right thing by the law but I don't have thousands of pounds to drop on a tree(s) - I can't believe many are in a different situation? Council/local authority lucky that I may have a few hundred pounds to offer to help to rectify.

 

 

 

 

 

[Gary Prentice]

47 minutes ago, bullish said:

Realistically how many people can actually afford to replace a full size tree? Surely this stretches to the echelons of >£5,000 quite easily - it would need craning in?! 

Appropriate tends to whatever the local authority ask for  as a replacement for the contravention. In my limited experience its normally a heavy standard sized tree rather than a semi-mature (£1000's) specimen. 

[Chris at eden]

55 minutes ago, Gary Prentice said:

Appropriate tends to whatever the local authority ask for  as a replacement for the contravention. In my limited experience its normally a heavy standard sized tree rather than a semi-mature (£1000's) specimen. 

Yes but appropriate in terms of what the LPA think can be appealed if you don't agree and you wait for the TRN.  I agree, a standard seems more likely than something which is semi mature.  I doubt the PINS would ever support that, 

[Gary Prentice]

Just now, Chris at eden said:

Yes but appropriate in terms of what the LPA think can be appealed if you don't agree and you wait for the TRN.  I agree, a standard seems more likely than something which is semi mature.  I doubt the PINS would ever support that, 

Agree totally, I was just commenting, IME, to part of the quoted post, without going into too much depth and complexity. My bad!

[Chris at eden]

1 hour ago, bullish said:

Thanks to everyone who have responded so quickly so far.

 

As I understand the law.. as the purchaser I would take-over the liability to replace the trees but I could not be criminally prosecuted for the removal (as I did not commit the crime).

 

Thank you for this extract:

"it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can."

Realistically how many people can actually afford to replace a full size tree? Surely this stretches to the echelons of >£5,000 quite easily - it would need craning in?! 

Reasonably can therefore for myself would be not very soon! However, as indicated I understand the whole principle at play here and would happily replant a sapling of a similar species.

 

It seems to me there must be a pragmatic expedient here. Prosecute and seek damages from the individual(s) who committed the crime (this would deter anyone from committing themselves), use the damages where possible to rectify the damage... but otherwise surely it has to be the goodwill of the buyer to do anything further. As indicated, I'm not buying a multi-million pound mansion here and want to do the right thing by the law but I don't have thousands of pounds to drop on a tree(s) - I can't believe many are in a different situation? Council/local authority lucky that I may have a few hundred pounds to offer to help to rectify.

 

 

 

 

 

The duty for tree replacement will transfer to you when you buy the land, as will the duty to replace if the new trees die.  I would insist that the current owner replaces the trees before you exchange contracts and then make sure you adjust the ties and water them while establishing.  I'm surprised your solicitor will exchange before its resolved.  I've seen several property sales held up due to missing trees. 

 

Its not difficult to resolve, agree the spec with the tree officer, plant the trees, and then get the tree officer to confirm they are ok by email.  Then exchange. 

 

The prosecution is the previous owners problem. 

      

[Chris at eden]

7 minutes ago, Gary Prentice said:

Agree totally, I was just commenting, IME, to part of the quoted post, without going into too much depth and complexity. My bad!

No bad there mate.  I was agreeing but just mentioned the possibility to appeal if the TO starts being ridiculous.     Sorry if it came across as something different. 

[bullish]

Thanks all this is really helpful.

"agree the spec with the tree officer, plant the trees, and then get the tree officer to confirm they are ok by email.  Then exchange" - exactly, it's got to be that simple. 

 

"Yes but appropriate in terms of what the LPA think can be appealed if you don't agree and you wait for the TRN.  I agree, a standard seems more likely than something which is semi mature.  I doubt the PINS would ever support that" This is reassuring - phew!