Penalties for ignoring RPA's?

[Ledburyjosh]

Hi,

 

I have a job whereby a tree on the edge of a construction site has has severe root damage. 

 

This tree was in the submitted tree protection plan to be retained and showed an appropriate construction conclusion zone around it. On which planning permission was granted.

 

This was ignored by the contractors and major excavation work has been carried in a linear line passing 3m to the trunk. Many roots 25-50mm have been severed. The tree is a mature sycamore with a 940mm diameter.

 

In response the LA has placed a provisional TPO on the tree. (no CA or TPO before this incident)

 

The contractors would like to object to this TPO on the grounds of the now damaged condition of the tree makes it potentially unsuitable for a TPO.

 

Is there any penalties which the contractors could face by carrying out work in the CEZ, effectively not following the agreed planning permission?

 

 

Thanks

[Retired Climber]

I have no professional expertise in this matter but I'd have thought (as a layman) that if terms of the Planning permission were ignored / not met, then the permission could be revoked. If it was possible to simply ignore such things with little consequence, the whole system would fail. 

[daltontrees]

2 hours ago, Retired Climber said:

I have no professional expertise in this matter but I'd have thought (as a layman) that if terms of the Planning permission were ignored / not met, then the permission could be revoked. If it was possible to simply ignore such things with little consequence, the whole system would fail. 

Revocation is not an appropriate response to breaches of conditions, it nearly never happens and it cannot be used as a punishment, although that would be a fabulous deterrent.

[daltontrees]

3 hours ago, StephenMews said:

Hi,

 

I have a job whereby a tree on the edge of a construction site has has severe root damage. 

 

This tree was in the submitted tree protection plan to be retained and showed an appropriate construction conclusion zone around it. On which planning permission was granted.

 

This was ignored by the contractors and major excavation work has been carried in a linear line passing 3m to the trunk. Many roots 25-50mm have been severed. The tree is a mature sycamore with a 940mm diameter.

 

In response the LA has placed a provisional TPO on the tree. (no CA or TPO before this incident)

 

The contractors would like to object to this TPO on the grounds of the now damaged condition of the tree makes it potentially unsuitable for a TPO.

 

Is there any penalties which the contractors could face by carrying out work in the CEZ, effectively not following the agreed planning permission?

 

 

Thanks

The penalties are weak. The Council must first take enforcement action, and a breach of an enforcement action can result in theoretically unlimited fines. I am not aware of any statutory basis for retrospective fines.

 

Therein lies a great weakness (to my mind) of the planning system in that it does not actually impose penalties for damage to trees unless they are TPO'd or in a CA. Trying to understand the various remedies for breaches of planning can make your head spin, but at the heart of it alll there are only two things the Council can achieve, namely stopping some activity continuing or undoing something injurious that thas been done. The penalties mainly involve prosecution and fines for not adhering to these. But when trees have been permanently damaged, there is no ongoing actiivity that can be stopped (except more damage) and the damage canot be undone i.e. the loss of amenity to the area cannot be replaced.

 

So a TPO is probably the best thing for the Council to do. Further damage will be easy to prosecute and punish. But up to that point, I am unaware of any prosecution method for past damage. I'd be delighted to hear from anyone that knows otherwise.

 

It just occurred to me that destruction of a tree on a development site in breach of conditions could constitute a felling permission offence. Messy, but theoretically possible and something that anecdotally I am aware is currently being talked about for a site in Scotland.

[Ledburyjosh]

4 hours ago, daltontrees said:

The penalties are weak. The Council must first take enforcement action, and a breach of an enforcement action can result in theoretically unlimited fines. I am not aware of any statutory basis for retrospective fines.

 

Therein lies a great weakness (to my mind) of the planning system in that it does not actually impose penalties for damage to trees unless they are TPO'd or in a CA. Trying to understand the various remedies for breaches of planning can make your head spin, but at the heart of it alll there are only two things the Council can achieve, namely stopping some activity continuing or undoing something injurious that thas been done. The penalties mainly involve prosecution and fines for not adhering to these. But when trees have been permanently damaged, there is no ongoing actiivity that can be stopped (except more damage) and the damage canot be undone i.e. the loss of amenity to the area cannot be replaced.

 

So a TPO is probably the best thing for the Council to do. Further damage will be easy to prosecute and punish. But up to that point, I am unaware of any prosecution method for past damage. I'd be delighted to hear from anyone that knows otherwise.

 

It just occurred to me that destruction of a tree on a development site in breach of conditions could constitute a felling permission offence. Messy, but theoretically possible and something that anecdotally I am aware is currently being talked about for a site in Scotland.

Thanks for that info.

 

It would explain that after a couple of hours research I didn't come to any conclusions.

 

I am going to object to the TPO on behalf of my client as requested. My expectations are that the TPO will not be revoked as although the root damage is extensive, the tree right now is rather nice. It may be that this isn't the case in 5 years time though. 

As part of the objection we shall suggest a specimen tree of the same species may be planted elsewhere on the site with appropriate space. Again though it Imagine this wont effect the TPO status as who's to say they would follow through with planting it unless its enforceable.

 

Unfortunately this contractor has a blatant disregard for trees. My personal opinion is a TPO on the Tree is the right move from the LA. 

 

 

[Ledburyjosh]

Another part of this to consider, is the damage enough to now cause complete tree failure and damage the now being built properties... Possibly yes, extensive damage? unlikey more garden sheds/fences etc..

If I am correct in thinking the LA choose to TPO the tree and prevent any work/removal they could be liable for any damage as is was foreseeable and preventable.

 

I shall upload an image to help show the scenario 

[Ledburyjosh]

[Puffingbilly413]

4 hours ago, daltontrees said:

The penalties mainly involve prosecution and fines for not adhering to these. But when trees have been permanently damaged, there is no ongoing actiivity that can be stopped (except more damage) and the damage canot be undone i.e. the loss of amenity to the area cannot be replaced.

My now far too cynical mind immediately comes to the conclusion that the contractors are well aware of the situation and what they can get away with.  Maybe a fine, maybe not.  But if a fine then just a cost of doing business.  See it all the time sadly.

[Dan Maynard]

At least if they TPO then when that tree goes there will be an expectation of replacement.

[Ledburyjosh]

9 hours ago, Dan Maynard said:

At least if they TPO then when that tree goes there will be an expectation of replacement.

Yes I imagine that is their reason for the TPO which makes sense