Appeal against refusal to fell - direct contact structural damage

[Gary Prentice]

I've a week/ten days to submit an appeal against a refusal to fell and I'm a little unsure about a couple of issues, so I'd appreciate some comments, advice, experiences, etc.

There's an elm situated between an asphalt drive and a division fence (picture below). To either side of the drive entrance are brick pillars. and from these a double skin brick wall (@1.2-1.4m high) continue forming the boundary with the highway. The wall from the SE pillar continues, offsite, forming the boundary wall of another property.

 

The SE pillar is leaning and damaged, the first 6-8 of the adjacent wall shows historic damage and repair, with a 2-3m length having previously been rebuilt. This length includes part of the wall belonging to the neighbour. It is obvious that the root(s) from the elm are growing in contact with the wall, a fact that the LA hasn't disputed in its refusal. 

So there is an actionable nuisance, because of the damage to that part of the wall belonging to the neighbour, as well as an indication that previous damage has been repaired but whatever was done is now failing and the conflict is continuing.

 

The LA's response is:

The reasons stated for felling the elm tree within the application were as follows;

 

1. The tree is growing in conflict with the brick boundary wall of both the applicants and the neighbouring property.
2. There is evidence of historic damage.
3. Future conflict and damage are expected.
4. Actionable nuisance is present/will occur involving a third party.
5. Brick pillar to the applicants driveway has been disturbed and is leaning.
6. Life expectancy is expected to be relatively short as it is a size which commonly gets infected by Dutch elm disease.

 

 

 In response to these points;

 

1. It is noted within the application that ‘the normal requirement is to seek an engineering solution rather than to remove a protected tree’ however there has not been shown within the application any evidence that an engineering solution to this issue has been investigated to ascertain whether or not this would be feasible in this instance.
2. Damage caused to hard landscaping is not usually judged to be sufficient reason to remove a protected tree if there is another solution to the issues claimed, such as an engineering solution as mentioned previously.
3. Future conflict and damage may be avoided with a sympathetic, well designed and forward-looking engineering solution.
4. As in 1,2 and 3.
5. As in 1,2 and 3.
6. At present, this tree is not showing any signs of Dutch elm disease. It is noted that elm trees of this age and size are susceptible to Dutch elm disease. Due to this fact, elm trees of this age and size are relatively rare. As such it is not reasonable to remove a protected elm tree that is of good health and vitality as a precaution for a disease it may get in the future.

 

I'm going on site this morning to have a dig around, as much as I can, in an attempt to gauge what's going on. One problem is that I can't be digging up next door and that the verge outside is in unknown ownership. 

 

I haven't got a photo of the gate pillar but it's got a fair lean and a number of cracks. I've a suspicion that to rebuild that would entail a foundation raft mostly above ground, which would then create issues with the drive levels - but that's a secondary issue at present. The real issue that I'm struggling with is the legal issue about the wall ownership. If this only involved the clients wall reconstruction/engineering solutions would be straight forward. But, with this involving the neighbours wall too it's seems more complicated. If there is an engineering solution it's obviously going to involve demolishing all of the clients wall and some length of the neighbours. Then there's the issue of who pays what?

 

I've met a builder (the clients) on site, to try to get estimates to rebuild with, and without, the tree present, with an idea that for the purpose of the appeal I'll try to show that he costs (with the tree retained) are such that retention creates an unreasonable burden on the owner. The builder is reluctant to even provide an estimate to provide an engineering solution because of the unknowns involved. 

 

I suspect that the TO is unsure of the legalities of the issue, as in a previous refusal involving damage to a third party he was hoping that PINs would clarify it. (They didn't address that, directly, but did overturn the refusal. 

 

Normally I'd be all for doing everything possible to retain the tree, but in the circumstances I'm thinking that the legal issues and the costs are going to outweigh doing so. 

 

Thoughts please!

 

[openspaceman]

25 minutes ago, Gary Prentice said:

So there is an actionable nuisance, because of the damage to that part of the wall belonging to the neighbour,

Has the neighbour claimed for the damage?

[Gary Prentice]

1 minute ago, openspaceman said:

Has the neighbour claimed for the damage?

Afaik, no. Client only moved in a few weeks back. What has initiated the app to fell is that it's a narrow lane so he's wanting to remove the tree, sort the wall, pillars etc and turn most of the front garden into parking. 

 

It might have been a different ball game if they had, but I suspect that the LA would still have refused the trees removal. It's a typical response that you have to prove engineering solutions are impossible. It feels like a chicken and egg scenario, go to the expense and upheaval of demolishing the wall and footings and only then, once everything is visible, be able to prove or disprove that engineered footings are possible. And all for an elm in an area where you just wait to see if this will be the year it starts with DED.

I just feel that nobody cares that he'll end up with a load of extra costs to retain a tree that drops dead anyway.

[openspaceman]

9 minutes ago, Gary Prentice said:

Afaik, no. Client only moved in a few weeks back. What has initiated the app to fell is that it's a narrow lane so he's wanting to remove the tree, sort the wall, pillars etc and turn most of the front garden into parking. 

 

It might have been a different ball game if they had, but I suspect that the LA would still have refused the trees removal. It's a typical response that you have to prove engineering solutions are impossible. It feels like a chicken and egg scenario, go to the expense and upheaval of demolishing the wall and footings and only then, once everything is visible, be able to prove or disprove that engineered footings are possible. And all for an elm in an area where you just wait to see if this will be the year it starts with DED.

I just feel that nobody cares that he'll end up with a load of extra costs to retain a tree that drops dead anyway.

I'd say you are on a sticky wicket there, the tree has amenity value and the owner wants it removed for a reason other than the nuisance it is causing the neighbour. Still worth an appeal on the client's behalf but I'd probably want the tree to stay were I a local.

 

If it dies from DED then problem solved and as you say the expense of rebuilding the wall with an engineering solution for a tree with limited life is money wasted.

 

BTW the verge will be highway waste won't it.

 

I dealt with a  stump causing a boundary wall dispute where the neighbour  made a claim for damages but denied it was a shared wall, pics in the stump grinding thread. Solution was simple, remove wall and no rebuild, case is ongoing even though no nuisance to anyone any more and the neighbour has no right to the wall.

[Khriss]

Two sides I can see on this. 

A. An Ulmus -matured , in good health ? I would be doing everything possible to retain tree as it could be a resistant strain against DED, and the biodiversity angle would prevail.

B. Clearly causing long term structural / property damage and financial loss.  Compensatory claim from owner of said tree. 

 

Dunno mate, not an easy call k

[Gary Prentice]

3 minutes ago, openspaceman said:

I'd say you are on a sticky wicket there, the tree has amenity value and the owner wants it removed for a reason other than the nuisance it is causing the neighbour. Still worth an appeal on the client's behalf but I'd probably want the tree to stay were I a local.

 

If it dies from DED then problem solved and as you say the expense of rebuilding the wall with an engineering solution for a tree with limited life is money wasted.

 

BTW the verge will be highway waste won't it.

 

I dealt with a  stump causing a boundary wall dispute where the neighbour  made a claim for damages but denied it was a shared wall, pics in the stump grinding thread. Solution was simple, remove wall and no rebuild, case is ongoing even though no nuisance to anyone any more and the neighbour has no right to the wall.

"owner wants it removed for a reason other than the nuisance"  I was born in the morning, but not this morning  

 

The reasons for removing in the original app were that it was causing an actionable nuisance. I don't think that it actually matters if the aggrieved party has started an action in the CC or is already claiming for damages. The fact remains that my client has a liability due to the tree. 

 

It's an unmade road, so I assume that it's un-adopted. Because the neighbour fronts onto an adopted highway (to the east) and has no access along the track it's possible that my client owns either the verge just to the front of his or all of it to the east to the adopted road. I've considered the possibility of siting the affected length of the wall further to the south than it currently is, more onto the verge, with a small return to join to the neighbours. But then that part of the neighbours wall is positioned on not on their land. The wall is no longer a straight run, as it is now, someone loses a bit of land etc. It's not that simple.

 

I appreciate the LA wanting to retain, I would in their position, but reasonably I don't think that retention is practical.

[daltontrees]

Gary, as you know, there is an exception in TPOs for the prevention or abatement of a nuisance. The damage appears to be substantial enough to be actionable, although in my opinion the wording of the legislation and the trend of court interpretation is that the nuisance doesn't even need to be actionable to be an appropriate  use of the exception.

I think it would be appropriate to include in your arsenal the 'so far as may be necessary' possibilities for abatement. That covers the neighbour's side. On the client's side the compensation rules would apply for a while after refusal, but only from the time of the application and only if the (further) damage was foreseeable.

There was a thread on here a couple of months ago when a similar physical circustance was looked at, and a piles + ground beam solution looked possible to support a replacement wall. Expensive? No doubt. Possible? Almost certainly. Fair? Well...

It all seems a bit unfair, but the tree would have done the damage anyway and the TPO is only a retrospective cosntraint on the solutions available. I think the species susceptibility to DED is a red herring, if anything it creates a scarcity value that might even bolster the LA's grounds for refusal.

All a bit negative towards your cleint's position, but it's a perspective anyway.

[openspaceman]

7 minutes ago, Gary Prentice said:

It's an unmade road, so I assume that it's un-adopted.

Even if unadopted if there is  a PROW it could be highway, the solus could belong to the property.

[kevinjohnsonmbe]

A single tree TPO Gary, or part of a group / area order?

 

If individual, is there a history of perceived threat to the tree from previous land owner?

 

Maybe not central to the circumstances going forward, but maybe of interest / some relevance in understanding LA position. 

 

Horse trading potential if landowner can be patient?

 

Let it die, reduce as hazard requires, leave remains, no re-plant no TPO moving forward....

 

[Gary Prentice]

9 minutes ago, Khriss said:

Two sides I can see on this. 

A. An Ulmus -matured , in good health ? I would be doing everything possible to retain tree as it could be a resistant strain against DED, and the biodiversity angle would prevail.

B. Clearly causing long term structural / property damage and financial loss.  Compensatory claim from owner of said tree. 

 

Dunno mate, not an easy call k

"Dunno mate, not an easy call" If it was easy I wouldn't have posted. 

I watched a very public elm, in grand health, over the last 8-10 years for DED symptoms. From the first chlorotic leaves to death took two years. It's impossible to weigh up the beetle population:number of elms of a size to provide breeding trees/food source and then calculate the probability of future infection. I do know that we have very few elms, of any age class,locally and suspect that what there is will eventually die. 

 

Can you still claim compensation for additional costs, resulting from a refusal, after an unsuccessful appeal?