TPO Tree on Driveway

[Jack Hobbs]

Hi all,

 

My front driveway has large mature tree in the middle of the driveway, which has a TPO.

 

I applied to the council to drop other half of the payment, (about 45% was already done by the previous owner, to allow me to park 2 vehicles on my driveway. The council approved the application, did not impose any conditions about the tree.

I have recently applied to the council to fell the protected tree, which was refused on amenity grounds. They also acused me of damaging the tree by parking vehicles on my driveway, and said they would take me to court if the tree dies or is unstable. I've actually never parked on my driveway, as it is currently not fit for purpose. I know full planning permission overrides a TPO, by authorising the dropping of the kerb infront of the tree, should that not override the TPO, as this clearly indicates I'm allowed to park near the tree.  I purchased the house with a half drop kerb, now they are saying I can't park on my driveway, so my house is worth less, can I take legal action against them, for loss of parking?

 

I hope someone can help.

 

 

 

 

[jfc]

I think you need proper legal advice on this.

[New boots]

Jack, Talk to a solicitor mate that's the only advice I can give you. If the council are threatening you with legal action talk to someone who actually knows the law and not someone who thinks they know...It could end up costing you money if you get bad advice.

[Wedgebanger]

This is Interesting, I will wait for Edwards reply

 

however you don’t say how long you’ve owned the house... and where the previous owner parked their vehicle (i say vehicle because some are a lot heavier than others). So depending how long you’ve lived there, I would like to know how could the council prove it was your vehicle thar has done the damage and not the previous owner.

Although you don’t say if there is anything wrong with the tree..

[Chris at eden]

3 hours ago, New boots said:

Jack, Talk to a solicitor mate that's the only advice I can give you. If the council are threatening you with legal action talk to someone who actually knows the law and not someone who thinks they know...It could end up costing you money if you get bad advice.

Its not bad advice but the solicitor will tell him to get a tree report from a tree consultant / expert witness as solicitors are not qualified to comment on trees.  So it will possibly end up being both. 

[Chris at eden]

11 hours ago, Jack Hobbs said:

Hi all,

 

My front driveway has large mature tree in the middle of the driveway, which has a TPO.

 

I applied to the council to drop other half of the payment, (about 45% was already done by the previous owner, to allow me to park 2 vehicles on my driveway.

Is the driveway existing at is full width or did the application involve the extension or replacement of the driveway.  Or, did you extend the driveway without detailing it on the plans?    

11 hours ago, Jack Hobbs said:

The council approved the application, did not impose any conditions about the tree.

That would be bizarre if you are replacing the driveway as well.  If it just the crossover and outside of the RPA then they may not need to as there would be no impact if the drive surface isn't changed.  You may also not need planning if the road is unclassified although this depends on who you ask.  I have a colleague that works as an LPA planning manager and he is adamant that you don't need planning for a dropped kerb as it forms part of the highway.  His opinion is that what you do need consent for is the bit that connects the crossover to the private property, not the kerb itself, and this is only for classified roads (there is conflicting info about this on other LPA website though).  I have seen crossovers done under PD though and subject to planning in different areas.  You will always need the consent of highways though, unless its a private road.  Are you sure it is planning consent you have and not just permission from highways?  I have come across this misinterpretation.        

11 hours ago, Jack Hobbs said:

I have recently applied to the council to fell the protected tree, which was refused on amenity grounds.

If it has visual amenity they are within their rights to do so, there are other issues to consider though.  They should address your reasons for removal in the decision notice, not just say no because of a negative impact on visual amenity.   

11 hours ago, Jack Hobbs said:

They also acused me of damaging the tree by parking vehicles on my driveway, and said they would take me to court if the tree dies or is unstable.

If they have given consent for a driveway at some point that would be pretty strong mitigation as long as you haven't done further works without consent.  Even resurfacing driveways potentially need planning consent unless you discharge the surface water on site.  You can replace driveways under PD if you discharge surface water on site but PD doesn't supersede TPOs. 

11 hours ago, Jack Hobbs said:

I've actually never parked on my driveway, as it is currently not fit for purpose. I know full planning permission overrides a TPO, by authorising the dropping of the kerb infront of the tree, should that not override the TPO, as this clearly indicates I'm allowed to park near the tree.  

No, it doesn't override the TPO unless you showed the tree to be removed on the plan, you can only do works that are required to  implement planning consent.  If you have applied to extend the drive and then had that consented (without condition), it would be strong mitigation for any prosecution as they have essentially told you that you can build there.  You cant just remove the tree though.  If you only have consent for the crossover (outside the RPA) and you have then extended the drive either under PD (e.g. by putting some gravel down, etc.), or without consent by extending it using road stone and tarmac then that could be a contravention.    If the drive hasn't been built to spec previously it could also be an issue.    

11 hours ago, Jack Hobbs said:

I purchased the house with a half drop kerb, now they are saying I can't park on my driveway, so my house is worth less, can I take legal action against them, for loss of parking?

Doubt it.  There are ways to engineer driveways with trees in mind.  It could be that the drive wasn't built using a tree friendly spec as conditioned by the original consent from the previous owner.  That isn't unusual. I have successfully defended appeals via the planning inspectorate for trees within the middle of driveways where the owners are saying they restrict parking and turning space.     

11 hours ago, Jack Hobbs said:

 

I hope someone can help.

There isn't anywhere near enough info here.  It will need a site visit and more info on the planning history.  Where is the site?

11 hours ago, Jack Hobbs said:

 

 

 

 

 

[kevinjohnsonmbe]

Give us your planning app number and LA area so we can look at the application form and DN. 
 

The section on the application form which asks “...are there any trees/hedges on/adjacent to the proposed development site...”  (or similar depending on which format/form) - was the TPO tree specified at application? Quite common for applicants to tick No No despite the very observable presence of trees and hedges. 

[Jack Hobbs]

Hi guys,

 

I will try to give you as much information as possible.

 

London Borough of Redbridge

 

Ref/2070/19

 

I've owned the property since Oct 2017

The previous owner had the footing/drop kerb done over 30 years ago.

 

This was done without permission, as it is not a classified road, so the previous owner only required consent from the highways, not planning permission. 

 

The TPO was only confirmed in 2010, the driveway has been in use since 1990 - 2017, so how can the council, after 30 years say you can't now park your car on your driveway. 

 

The tree is in the middle of the driveway, so there is room for 2 cars, left and right of the tree.

 

The council have confirmed I'm not allowed to park on the driveway, given me a warning, if I park there then I would be committing an offence under the Town and Planning Act 1990.

 

They only reason they banned me, because I questioned them and asked them to reconsider my application, on the basis another house, less than a minutes from mine, got permission to remove a indentical monkey puzzle tree, but he also did not provide any technical or professional representations. That tree was also in the front garden, in good health. There are no supporting documents or anything on the website to support the felling of the tree, No aboricultural report, no Tree officer report and no pictures, little bit strange???

 

They did not like the fact, I asked them to review their decision the council was fuming.

 

All the other houses with TPO's, where the owner has request permission to fell a protected tree, they all have provided professional/technical representations, i.e, aboricultural report, and there are also pictures and tree officer report on the website, but not the house that is less than 1 minute work from mine (Ref: 0199/19). 

They should not be able to get away with it.

 

My grounds of challenge is that Redbridge Council has failed to have regard to the importance of consistency in decision making, it is well established case law that previous planning decisions are capable of being material considerations, meaning that they may need to be taken into account by those determining subsequent applications for permission. Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the clear reasons to be given where inconsistencies arise.

Breach of Human rights Act 1998 - Protocol 1, Article 1 protects your right to enjoy your property peacefully, 

 

 

If anyone can help it would really appreciate it.

 

Edited November 3, 2019 by Jack Hobbs

[Gary Prentice]

On 30/10/2019 at 11:48, kevinjohnsonmbe said:

Quite common for applicants to tick No No despite the very observable presence of trees and hedges. 

I've even known architects to suffer 'tree blindness' when filling in planning applications. 

A bit shameful when the application is then refused after the LA notice half a dozen seventy foot trees ten foot from the proposed construction. 

[Gary Prentice]

7 hours ago, Jack Hobbs said:

Hi guys,

 

I will try to give you as much information as possible.

 

London Borough of Redbridge

 

Ref/2070/19

 

I've owned the property since Oct 2017

The previous owner had the footing/drop kerb done over 30 years ago.

 

This was done without permission, as it is not a classified road, so the previous owner only required consent from the highways, not planning permission. 

 

The TPO was only confirmed in 2010, the driveway has been in use since 1990 - 2017, so how can the council, after 30 years say you can't now park your car on your driveway. Because now they are aware of a possible contravention - action that could damage/harm.

 

The tree is in the middle of the driveway, so there is room for 2 cars, left and right of the tree.

 

The council have confirmed I'm not allowed to park on the driveway, given me a warning, if I park there then I would be committing an offence under the Town and Planning Act 1990. I suspect that this may be an attempt by the LA to bolster a case if the tree declines. If you continue to park there and the tree declines (for whatever reason) then the argument would be that you 'wilfully' carried out an action which led to damage or death. You're now aware that parking 'could' cause damage, so any damage would be wilful. Your defence crumbles.

 

They only reason they banned me, because I questioned them and asked them to reconsider my application, on the basis another house, less than a minutes from mine, got permission to remove a indentical monkey puzzle tree, but he also did not provide any technical or professional representations. That tree was also in the front garden, in good health. There are no supporting documents or anything on the website to support the felling of the tree, No aboricultural report, no Tree officer report and no pictures, little bit strange??? In my experience mistakes are made. Forget the website, visit the offices and ask for all of the files concerning the trees removal. If it was under a tree works application, look at the details of the application.  If it was a planning application there should be plenty of paperwork, the case officer dealing with, the tree officers report because the application required removing a tree (I assume it was TPO'd too?  But mistakes happen and airing the LAs dirty laundry doesn't always help (sometimes it does )

 

They did not like the fact, I asked them to review their decision the council was fuming.

 

All the other houses with TPO's, where the owner has request permission to fell a protected tree, they all have provided professional/technical representations, i.e, aboricultural report, and there are also pictures and tree officer report on the website, but not the house that is less than 1 minute work from mine (Ref: 0199/19). There's no real obligation to provide everything on-line AFAIK, an LA must make information available on request - but at their offices/paper records. I wouldn't base any appeal/challenge without doing your homework carefully, not just looking at what has been made available online.  

They should not be able to get away with it. I know it's frustrating when the playing field doesn't appear level but don't forget that everyone at the LA is only human. Mistakes happen all the time and things don't get done they way they should - then an outsiders says why did you allow that and not mine. Sometimes they shouldn't have allowed the first one, it was a mistake on somebodies part and it fell through the cracks.

 

My grounds of challenge is that Redbridge Council has failed to have regard to the importance of consistency in decision making, it is well established case law that previous planning decisions are capable of being material considerations, meaning that they may need to be taken into account by those determining subsequent applications for permission. Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the clear reasons to be given where inconsistencies arise.

Breach of Human rights Act 1998 - Protocol 1, Article 1 protects your right to enjoy your property peacefully, 

 

 

If anyone can help it would really appreciate it.

 

 

Edited November 3, 2019 by Gary Prentice