bs 5837 fines

[treequip]

the guy wants the tree gone , and it is under tpo

 

Simple, grass the developer to the LA, that way when the tree goes the way of its maker, the TO ought to be up to speed

Tell the buyer to deduct the cost of removal from the purchase price.

[Tony Croft aka hamadryad]

Its something I hate doing but in these cases they have asked for it, I had to say it recently too.

 

just tell the client to ask the developer why they have no idea about bs5837, any reputable/professional builder would be aware of it and this would not of happened.

 

then let the events reveal themselves.

[treequip]

To the developer 5837 is a PITA. It just costs time and money. The only time it would benefit the developer is if it kept him away from trees with statutory protection.

 

The trees on site (and adjacent) are a material consideration. The planners are the ones who should have got a tree consult and made tree protection a condition of planning. (assuming they didn’t)

[Arborist Sites]

I have a client who has 50-60 mature pops which run the length of a new housing estate, there was adequate protection specified in accordance with BS 583, council put planning conditions in to protect these trees, 3 years after construction was complete trees showed decline, upon investigation major root severance and compaction had occured including site arrising/scrapings pushed into rpa.

 

When the council was approached they said they were powerless, however a solicitors letter with a copy of the tree report stating the negligence and damage to the trees resulted in all removal cvosts being paid by the developer..

 

The problem is you can produce these reports and councils can put forward the planning conditions, however the councils dont have time to check on them.

 

In the case mentioned earlier i would ask that the tree was removed and area replanted as part of the purchase deal.

 

Alternativly, you could buy the house and then take it up as a negligence case and hopefully get it removed....

[AA Teccie (Paul)]

Reet, I'll have a quick stab at this one if I may.

Firstly, as already pointed out (but I always did like 'repeats'), BS5837 is guidance/recommendations not legislation and does not contain any fines etc.

Compliance with it, principally here in terms of 'protective fencing' requirements, is imposed through planning conditions under the TCPA (Town & Country Planning Act) 1990 (I believe) which does carry penalties if not complied with.

Certainly TPOs/CAs are included here and the max fine for 'wilful damage' (prove it!) is £20k or 'unlimited' in the High Courts (on summary indictment) where the gain to be had far outweighs the £20k, i.e, typically on dev sites.

 

However a potentially more damaging tool (and I don't fully uderstand this....sorry!) is for the LPA not to discharge the conditions on completion of the development if they were not complied with, i.e. if protective fencing wasn't erected in accrodance with submitted plans and associated approvals (planning enforcement should help here too), as somehow this prevents the developer from selling the properties, or prevents the buyer from purchasing, or summat like that but the outcome is the same....hence here we 'neeedeth the consultant'.

 

The other thing, again a 'repeat', is that whilst LPAs must ensure appropriate conditions are imposed on the consent (approval, same thing) the reality is it's worth 'Jack Sh*t' if they don't follow it up on site and increasingly they are making conditions including 'arboricultural supervision', at the devs expense, and with a requirement to periodically notify the LPA that all is okay on site and the tree protection is in place and effective.

 

Hoping this to be of interest but please don't quote me verbatim (I'm sure the principles are right tho!)

 

Cheers..

Paul

 

PS Re the likelihood of a succesful prosecution where 10tonne of soil was piled up against a tree OR constant vehicle traversing compacted the ground = very low IMO, n the tree don't help here coz what does he/her do, still comes into leaf for a couple or three years then gradually declines, then honey fungus gets involved AND all the time the original cause becomes less and less 'provable' (is there such a word?)....come on tree, curl up your toes n fall...quicker!

Edited February 24, 2010 by AA Teccie (Paul)

[Andy Clark]

There seem to ba a lot of answers jumping all over the place here, so let me clean things up a bit.......

 

You mentioned that the tree is subject to a TPO.

 

With that being the case, the answer is simple......... either you or the prospective buyer report the developer to the LA for breech of TPO NOW!! That way, it remains as it should be, ie a matter for the developer to sort out, after all, he is the one who has breeched the planning conditions.

 

I bet you a pound to a penny, that when planning permission was first sought for the development, the LPA WILL have stated that the development in relation to protected trees, is carried out in acordance with BS 5837....... if the developer has not done that, then he is in breach of the planning conditions and should be the one to carry the can for that. SIMPLES!

 

The developer will undoubtedly be issued a fine, plus more importantly, the LPA will more than likely require that the developer make good the damage, which may (if the damage is THAT bad) result in fell and re-plant at the developers expense.

 

 

More often than not (as Arborist sites mentions) trying to sort stuff like this out after the build has finished and the sale completed, is nigh on impossible. After all, "willfull damage", is going to be pretty hard to prove once the overspill has been removed and the ground around the tree re-instated with nice new turf and flower borders. Not only that, but the costs for finding such "proof" in years to come, ie re-excavating the RPA to look for damage, will more than likely be on the head of the prospective buyer.

[AA Teccie (Paul)]

Hi Andy,

I'm not sure the LPA would be able to take direct action solely under the TPO in this case as (as I understand it) it's the 'ommission' of an act, i.e not placing protective fencing around the tree roots, rather than 'commission' of an act, i.e actually cutting tree roots. Having had some previous experience I'd be surprised if an LPA legal team would take this on as a smart defense barrister would simply ask..."are the tree roots cut?" NO!..."is the tree dead?" NO!..."is it showing symptoms of decline?" NO!..."can you say it will definately die?" NO!..."there is no case to be answered m'lud!" etc. etc.

 

However, the fact the tree is TPO'd would likely add weight to the breach of planning condition issue, thereby allowing 'enforcement' to take place...but I still wouldn't be sure about successfully 'fining' them....unfortuantely! Sorry to be the pessismist but my experience of the planning system for protecting trees is that it's hugely 'hit & miss' and it needs a damned good Tree Officer to drive it PLUS cooperation by the developer AND a good consultant too....easy!

 

Cheers all..

 

Paul

Edited February 24, 2010 by AA Teccie (Paul)

[Kenny McGregor]

Gavin

 

As a tree officer I recommend you speak to the Councils Local Planning Authority (LPA) and tree officer before starting any work! Firstly it sounds like there is a breach in the planning agreement and a stop notice could and should (by the sounds of it) be served by the LPA! This could lead to great deal of trouble for the present owner of the development site and builder? If the situation is as you've described the LPA could really dig their heels in legally and cause problems for the future sale of the property.

 

As a general rule though Gavin, up to £20,000 fine on TPO in magistrates court and unlimited if it goes to crown court.

 

You will of course have to seek the permission anyway if you want to fell a TPO'd tree. So you really don't have any other choice but to speak to the LPA if you want the job?

 

In summery I think you should be very careful and suggest that the potential buyer also speaks to a solicitor and the LPA so he does not inherit allot of expensive problems.

 

I hope that helps you out fella and if you want to message me for any further info please do as your are more than welcome.

[Andy Clark]

Blimey, you're right, that WAS a pesemistic view. Luckily for me then, that I appear to have had more succesfull and positive experience at this matter than you have had.

 

Firstly, remember that a TPO actually relates to the land that the tree is situated on.

 

Secondly, remember that this is not about breech of TPO, it is about breach of planning permission. The development must (assuming that the LPA have their fingers on the pulse, and have highlighted so in their consent notice) be carried out in accordance with 5837....... if it isn't then THAT is breach of planning regs, and there in itself is a case to answer......

 

Whether the tree dies/suffers/declines is neither here nor there at this time, as the current action is purely to avoid any comeback on the prospective buyer in years to come, ie bring the contractor to bear NOW, rather than wait for the tree to curl its toes, and then be left with a hefty bill trying to prove that the tree died as a result of past damage.

 

If the council choose not to proceed, then that's down to them..... BUT, the prospective homeowner will be covered.

 

And that, i thought, was the whole purpose of this thread???

[Kenny McGregor]

I absolutly agree Andy! Though us tree and planning officers dont always get it right? It is a difficult job playing the planning law game!! But we do try, and for the most part we do believe in what we are doing! For our sins anyway... It is an ongoing battle....

 

Gavin speak to the LPA! Us tree officers can only give respect to tree surgery companies that alert us to such issues. And you will be doing a good deed by letting the perspective buyer (your client) know about the problems that may and probably will effect them.