TPO confirmed but owner not informed

[daltontrees]

That tree probably won't be there in 10 years' time.

 

Chris is good on this so far. Additinal things to note. There may be a lesser solution than felling, and the Council could refuse an application for felling if it thinks a reduction would protect amenity and make tree safe.

The Council may be wanting to ensure that there is A tree at this location so the TPO should mean replacement no matter what route is gone down to achieve lawful removal. Council might be happy with that outcome.

A report would be required to justify 5 day notice but would also be needed to justify removal on application AND to justify not reducing instead. Basically a report is required.

I'd say get it formally assessed, and follow advice on reduction option, urgency of reduction or removal, or application to remove. I don't think you can make a move without a report of some sort.

Seriously, don't remove based on 5 day notice without somebody objectively assessing it first or you could have a very uncomfortable retrospective justification to do.

[Mark Bolam]

Thanks for your input Chris and Jules, I’ve been living in the dark ages a bit!

[Mick Dempsey]

Yes, agreed Mark, it’s what separates this place from the FB sites.

 

It’s easier to sort the wheat from the chaff here.

 

 

[Puffingbilly413]

5 hours ago, Chris at eden said:

The LPA doesn’t assess tree condition, only visual amenity.  There is no reason that cannot be done from the road.  The owner can then either object based on condition or apply to fell based on condition.  The safety of the tree is the responsibility of the owner not the LPA. Although it would be a bit dodgy to TPO something that was obviously dangerous when viewed from the street.  The OP just needs to follow the process with one of the above options.  The owner hold the liability. Unless, they submit an app with supporting evidence and the LPA disagree and refuse and then the tree falls as a result. 

Ah thanks Chris. That catches me up a bit. 
 

Could it not come under ‘expediency’ in that there is little point (arguably) in placing a TPO  on a tree with serious defects as it may well  need to come down anyway. Or be heavily reduced thus (arguably again) reducing amenity value to the point of not fitting the bill for a TPO?

 

I guess I return to my earlier point about the TO needing to get closer / inspect more thoroughly to be able to pass comment on the expediency element. The LPA should have an in place methodology for assessing for TPOs - I wonder what the one used was here?
 

I’m not sure I’m convinced on the liability aspect - from a purely logical perspective. No idea if there’s any case precedent on it. I would say that if a mechanism like a TPO being in place has prevented timely action by a tree owner (and that TPO could have been more diligently put together), and failure occurs in the meantime then would a court deem the owner responsible?

 

Am enjoying this thread - many thanks.

[Johnelle]

TPO was applied having only viewed the tree from the road. From which standpoint the lean is not visible nor the raised root plate.

Our main concern has always been who is liable is the tree falls and demolishes the grade* listed building (and obviously the safety of the people in the building). As stated we applied to fell it ( although with hindsight the tree surgeon who submitted our app didn’t stress the safety aspect other than large split branch). Our insurer has been scratching their heads over this - conclusion, get a tree survey, submit another app (can we do that if TPO has been confirmed??). The liability person said that the TPO would be overridden if the tree is dangerous.

So where are we now and what do we do? 

 

Thanks so much for all your comments and advice - a minefield for the humble tree owner!

[James Royston]

4 hours ago, Johnelle said:

TPO was applied having only viewed the tree from the road. From which standpoint the lean is not visible nor the raised root plate.

Our main concern has always been who is liable is the tree falls and demolishes the grade* listed building (and obviously the safety of the people in the building). As stated we applied to fell it ( although with hindsight the tree surgeon who submitted our app didn’t stress the safety aspect other than large split branch). Our insurer has been scratching their heads over this - conclusion, get a tree survey, submit another app (can we do that if TPO has been confirmed??). The liability person said that the TPO would be overridden if the tree is dangerous.

So where are we now and what do we do? 

 

Thanks so much for all your comments and advice - a minefield for the humble tree owner!

It can be a minefield for everyone, not just the humble tree owner. I don't know where you are based, but if I were in your situation then I would contact an arboricultural consultant and get a proper report done, and then use this as the basis for an application to do whatever works are recommended by the consultant. From experience, it might be helpful to contact your local councillors at an early stage, just to make sure things are done properly and that your concerns regarding safety are given proper consideration by the council.

In terms of liability - until you submit an application you will almost certainly be responsible for damage or harm caused by your tree. Once an application is submitted then the question of liabilities gets a lot more complicated. You will almost certainly get a different response about liabilities depending on who you talk to - I have dealt with solicitors who specialise in civil and commercial liability, and that was useful to me in explaining the liabilities of a local authority, but your situation is quite specific, so it might be worth you obtaining proper legal advice on this.

Good luck in getting it sorted.

[daltontrees]

On 08/05/2021 at 10:44, Johnelle said:

TPO was applied having only viewed the tree from the road. From which standpoint the lean is not visible nor the raised root plate.

Our main concern has always been who is liable is the tree falls and demolishes the grade* listed building (and obviously the safety of the people in the building). As stated we applied to fell it ( although with hindsight the tree surgeon who submitted our app didn’t stress the safety aspect other than large split branch). Our insurer has been scratching their heads over this - conclusion, get a tree survey, submit another app (can we do that if TPO has been confirmed??). The liability person said that the TPO would be overridden if the tree is dangerous.

So where are we now and what do we do? 

 

Thanks so much for all your comments and advice - a minefield for the humble tree owner!

Here's the general priniciple of liability.

 

Regardless of the TPO, if the tree was imminently dangerous and failed, causing damage or harm, and the risk could ahve been reduced under the statutory exemption, the law would say that you should have used the exemption. Can't blame the Council for not using a right that Parliament gave you.

 

If the assesseed risk had been 'acceptable' then you would have a defensible position, and you would have no liability. Nor would the COuncil be compelled to grant approval for works.

 

If the risk was assessed as being somewhere between acceptable and imminent, (call it 'tolerable') you have to apply for and and get TPO approval. If the tree failed before a decision, it's not clear who is liable but it's probably not the Council and because in applying for approval you have acted responsibly you are probably not liable either. I would expect this to be an insurable risk.

 

If the application was refused (and setting aside rights of appeal) the Council will be liable for a fixed period afterwards as long as the damage was foreseeable at the time of application. The liability may not include liability to 3rd parties for harm (as opposed to damage).

 

If the refusal is unreasonable, appeal. It will if nothing else extend the liability period. It might arguably transfer liability to the Inspector.

[Johnelle]

Unfortunately as the Council did not tell us they had confirmed the TPO (and their legal team have confirmed that they did not inform us) we have missed the appeal date. Makes me wonder if that means they are now liable??

There was no risk assessment, the TPO was confirmed solely on the basis of amenity. Although the chair stated that we should be told when practicable that we could carry out work to ensure the safety of the tree. 

But they haven’t informed us of that either.

So the Council has not communication with us and we are left with a tree that may be at risk of falling in the future.

[daltontrees]

38 minutes ago, Johnelle said:

Unfortunately as the Council did not tell us they had confirmed the TPO (and their legal team have confirmed that they did not inform us) we have missed the appeal date. Makes me wonder if that means they are now liable??

There was no risk assessment, the TPO was confirmed solely on the basis of amenity. Although the chair stated that we should be told when practicable that we could carry out work to ensure the safety of the tree. 

But they haven’t informed us of that either.

So the Council has not communication with us and we are left with a tree that may be at risk of falling in the future.

I didn't mean appealing against a TPO, I meant appealing against a refused application for works to a TPO'd tree. The Council is only liable from a refusal.

[Johnelle]

Apologies, hard to keep track of who is liable...

Intending to apply to work on TPO’d tree and see where that gets us (with a tree survey of course)