TPO appeals

[lurch_917]

11 hours ago, Anno said:

 

Why would the Council cover the cost if no real evidence has been provided?

would that be because its the council (gov.) stopping him from tree care or removal . now if the roots are lifting my drive or branches from said tree have fallen on my car because they are saying i cant cut it back they are then in my eyes liable like if i was a estate owner where a branch fell and injured a member of the public im responcable. 

[Anno]

12 hours ago, lurch_917 said:

would that be because its the council (gov.) stopping him from tree care or removal . now if the roots are lifting my drive or branches from said tree have fallen on my car because they are saying i cant cut it back they are then in my eyes liable like if i was a estate owner where a branch fell and injured a member of the public im responcable. 

Doesn't work like that, we have alleged damage with scant evidence and the Application has been refused, so as I and others have said get independant advice and resubmit, the Council does not own the tree they are doing their duty under the T&C to conserve.

[daltontrees]

9 hours ago, Anno said:

Doesn't work like that, we have alleged damage with scant evidence and the Application has been refused, so as I and others have said get independant advice and resubmit, the Council does not own the tree they are doing their duty under the T&C to conserve.

Quite so. The Council is only liable if an application has been submitted and damage was foreseeable (at the time of application) and then the Council refused permission.

If there is risk, there is statutory exemption. It is not the Council's job to decide if the exemption can or can't be legitimately used, although it is it's job to decide afterwards if the exemption as been abused.

There is nearly always a tree work remedy less than complete removal. All these possibilities have to be explored.

[Wonky]

I just want to throw it out “for the discussion” ….. so would bracing be sufficient in the eyes of the TO,  rather than remove,, 

 

I know it’s a can of worms… but like most things we all have different ways of doing things…

 

and I know could/should give a better example/description..

 

and I think I know partial the answers I will get.. ie… if you can justify why it got removed,, then your in the clear…🤔

[daltontrees]

13 hours ago, Wonky said:

I just want to throw it out “for the discussion” ….. so would bracing be sufficient in the eyes of the TO,  rather than remove,, 

 

I know it’s a can of worms… but like most things we all have different ways of doing things…

 

and I know could/should give a better example/description..

 

and I think I know partial the answers I will get.. ie… if you can justify why it got removed,, then your in the clear…🤔

I'm not sure I understand the question. But generally you can't rely on an exemption unless it's justified, and don't ask the Council if you can use the exemption, it's not their job to decide that. The exemptions can only be used to remove the issue, not the tree, and can't be used as an excuse for excessive works. But if there's no exemption available, an application is required, then refusal of removal of the whole tree is justifiable if there are lesser alternatives, including pruning, bracing, root pruning, engineering solutions or repair of driveways.

[Mlear]

Many thanks to you ll for your help responses, clearly this will be a long drawn out issue and I will certainly seek the best advice I can before approaching the Council. Incidentally, they were pruned a couple of years ago and it made a huge difference visually but they seem to have grown pretty quickly and are - in my opinion - thicker and therein worse than prior to being pruned. Many thanks to you all again, greatly appreciated.

 

 

[GeoP]

Just to weigh in on this one...

 

There are a few points to make:

 

1. Light: You do have a right to light at your property. In fact, your right to light is protected under Rights of Light Act 1959. However, trees and light is a tricky one because trees do not block all light, as they shed leaves etc. therefore, any case made about trees blocking light is thrown out, despite the fact that trees can block light during the leafy seasons. Additionally, because there has been no case law since this act to support the removal of a tree due to blocking light, there is now a general consensus that trees are not seen to significantly block light in the eyes of the law. Now, this brings us on to TPOs. Because a TPO is legally enforceable under the Town and Country Planning Act, no local authority will grant works justified by light - its just not going to happen. Hypothetically, if a LA did grant tree works due to light, the flood gates will open as this then established a precedent where there are now some circumstances where works will be granted for light reasons. No tree officer in they right mind would allow this to happen.

 

2. Damage to buildings: I come across this one all the time, I have considered applications to remove trees because of "roots under the foundations causing damage / potential to cause damage." It is quite straight forward, unless you have a report from an industry professional (usually a structural engineer or building surveyor) to suggest tree related damage, your application will not be considered. Moreover, after spending years in the subsidence consultancy industry, the most common type of damage to buildings caused by trees is subsidence, which is known as indirect damage. Direct damage (i.e. direct root expansion against another object) is SO rare in low rise buildings. It is more common on boundary walls and made ground (driveways or paths for example). In these cases the tree could be removed (or not) depending on the circumstance. Though, if a large TPO'd tree was causing damage it is more likely that the driveway will receive works and not the tree. Most local authorities use Capital Asset Value of Amenity Trees (CAVAT) to determine cost effectiveness. If your property is getting damaged by a 3rd party tree, claim on your buildings insurance.

 

3. Foreseeability: it was mentioned in this thread about the tree in question potentially damaging the house or a branch falling and damaging property. It was also mentioned that the local authority would be liable in this instance. This is partially correct, the liability is with the tree owner. They are responsible for the maintenance of their trees under their duty of care. Usually this would mean that the tree is surveyed every 1,3,5 years as required. Even then, if the tree did damage the property and it was not foreseeable, the tree owner would not be liable as in the eyes of the law they would have taken reasonably practicable measures to ensure the safety of their trees. I have had this several times with my trees where some minor failures have occurred in high winds. The claimant party claims on their insurance, our insurer requests our surveys to evidence our compliance with duty of care, we produce 10+ years of survey records, the claim is denied as we have taken reasonable steps and the tree damage / failure was not foreseeable. Therefore, if there is no foreseeability and the duty of care is complied with, there is no claim. Though, if the damage / failure is foreseeable and the Local Authority deny an application to fix the issue, you can evidence your efforts and there is a case to pass on liability to the Local Authority. 

 

Regarding a possible solution: If the tree canopy is within 3 metres of your property, apply for a 3 metre clearance, this will likely be approved and help with your light issues. Though, regarding the damage to your property, if you deem it significant enough, log a claim with your building insurer.

 

I hope this provides clarity.

 

 

[daltontrees]

Observations on previous post.

There is no right to light unless blocked by a structure. Trees are a separate matter.

The legislation quoted does not create or protect right to light, it creates a method of preventing rights being created.

Don'te get me stared on CAVAT, it's a con and is not designed to deal with privately owned trees anyway.