Groundworks within Root Protection Area

[Boris Morton]

First off, a big thank you to those who offer free help and advice through this forum.

 

The advice I seek relates to the possible consequences of carrying out groundworks within the Root Protection Area as described in BS5837. The situation is this; There is a large (4.93 metre girth @ 1.5 metres) English Oak tree (with TPO) growing on the boundary of mine and a neighbours property. There is a further property boundary about 3 metres from the tree. The tree is quite difficult to photograph so here is a map showing the RPA as a circle of 15 metre radius centred on the trunk:

 

 

Following a recent sudden branch drop, which took out a fence, I was making repairs when the owners of the third property introduced themselves and asked if the tree surgeon I had employed to make the branch safe had assessed another branch which overhangs their land as they intend to construct a car port under the canopy of the tree and well inside the RPA. I suggested that this may not be the best place to put a car port but they seemed committed. I have asked the tree surgeon to comment to them and hopefully his words will convey the ill advised nature of the plan but because they do not need planning permission, there does not appear to be any official mechanism to control the groundworks so that the roots of

the tree are respected.

 

My question is does anyone have experience of the effect of unsympathetic groundworks? I would like to be able to advise them of possible future problems with what they propose and give examples as I don’t want to end up in a situation where they just build it, a branch (or, god forbid, the entire tree) falls as a result, and they try to claim the cost of a car port and a couple of cars from me.

 

Thank you in advance,

 

Boris

 

[Mark J]

Arboricultural Association - How close can I build to my tree?

WWW.TREES.ORG.UK

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A range of tree related help and advice for members of the public as well as tree surgeons.

 

[waterbuoy]

As above

 

The most relevant bit is perhaps as follows:

 

If your tree is protected by a Tree Preservation Order (TPO) or is located within a conservation area, legislation relating to tree protection overrides that of permitted development rights, and you risk prosecution if protected trees are damaged.

 

[daltontrees]

4 hours ago, Boris Morton said:

My question is does anyone have experience of the effect of unsympathetic groundworks? I would like to be able to advise them of possible future problems with what they propose and give examples as I don’t want to end up in a situation where they just build it, a branch (or, god forbid, the entire tree) falls as a result, and they try to claim the cost of a car port and a couple of cars from me.

 

Thank you in advance,

 

Boris

 

Experience of the effect of unsympathetic groundworks? Almost daily, unfortunately.

 

There's several issues here.

What would be the adverse effects?

If carport is just a roof on stilts, minor risk of a direct hit by a screwpile on a  root.

Deprivation of rainwater for a large section of roots. Proabbaly minor for a tree of that size. Ground water moves sideways to an extent.

A solid concrete floor slab would make loss of rainwater much worse because of complete exclusion of water, compaction of soil, leaching of concrete and loss of gas exchange to roots.

Firstly ignoring the TPO...

If the neighbour is allowed to build a carport on his own land and it adversely affects the tree, it's your problem since your roots are encroaching on his land.

Secondly if he builds it and the tree sheds a branch onto it, even if he knows it could happen, again it's your problem.  You can't prevent him using his land lawfully as he sees fit just because your tree encroaches on his airspace.

Both these could be countered weakly by arguments about reasonableness between neighbours, but in the end your tree has no right to be in his soil or airspace. No amount of time creates such a right.

 

But with a TPO?

If no planning permission is required, also no consent for tree works required. The test is therefore whether the works result in wilful damage or wilful destruction of the tree. If not, there is no statutory offence.

It all comes down to what is meant by 'wilful'. Not 'careless' or 'reckless' or 'foreseeable'. Just 'wilful'. Does this mean premeditated, deliberate, intended? Grab your favourite dictionary, because the law will not answer this question for you.  Personally as a native speaker of english I interpret it as requiring 'intent'. Others seem to want it to mean careless or 'should have taken advice first'.

Again personally I feel the law should be changed to ' careless'. This would change the onus of proof in a way thats would reflect the spirit of TPOs.

Whether at common law or TPO, I see a presumption in favour of the adjacent owner unless he is being deliberately difficult. He should do the least damaging thing, but proof of intent is mind-reading that even the courts rarely achieve. 

 

[Tree monkey 1682]

6 hours ago, Boris Morton said:

First off, a big thank you to those who offer free help and advice through this forum.

 

The advice I seek relates to the possible consequences of carrying out groundworks within the Root Protection Area as described in BS5837. The situation is this; There is a large (4.93 metre girth @ 1.5 metres) English Oak tree (with TPO) growing on the boundary of mine and a neighbours property. There is a further property boundary about 3 metres from the tree. The tree is quite difficult to photograph so here is a map showing the RPA as a circle of 15 metre radius centred on the trunk:

 

 

Following a recent sudden branch drop, which took out a fence, I was making repairs when the owners of the third property introduced themselves and asked if the tree surgeon I had employed to make the branch safe had assessed another branch which overhangs their land as they intend to construct a car port under the canopy of the tree and well inside the RPA. I suggested that this may not be the best place to put a car port but they seemed committed. I have asked the tree surgeon to comment to them and hopefully his words will convey the ill advised nature of the plan but because they do not need planning permission, there does not appear to be any official mechanism to control the groundworks so that the roots of

the tree are respected.

 

My question is does anyone have experience of the effect of unsympathetic groundworks? I would like to be able to advise them of possible future problems with what they propose and give examples as I don’t want to end up in a situation where they just build it, a branch (or, god forbid, the entire tree) falls as a result, and they try to claim the cost of a car port and a couple of cars from me.

 

Thank you in advance,

 

Boris

 

Think also the council will take the view the tree was there before the house. 

You can see trees that have been damaged by "builders" driving plant.  

Tree dies off the side that compaction/ groundwork have taken place on... 

Always makes me wonder why people buy houses next to established trees, then try and stick carports underneath! 

[Boris Morton]

Thank you all for your responses. It’s a learning process for me but some takeaways from it:

 

1. daltontrees – agreed, ‘wilful’ in modern English suggests a malicious act (which would be difficult to define) but it seems that in legal parlance it has a subtly different meaning; it appears to be the opposite of ‘unaware’, in that it refers to an action taken with knowledge that it contravenes some statute or recommended procedure, rather than an action taken in ignorance of the same.

 

2. Tree monkey 1682 – Local Authorities have considerable powers but in my area they fail miserably to use them; Not far from the Oak tree was a large mature Walnut tree. The owners applied for planning permission for an extension stating on the application that no trees were affected but hidden on one of the drawings was a statement that the tree was diseased and would be removed. Up went the extension and down came the tree.

 

3. MarkJ and waterbouy – thanks for the Arboricultural Association link, I hadn’t seen that before.

 

When I get the Tree Surgeon’s report I will forward it to the landowner along with the AA link and a link to BS5837:2012 and copy the council Tree Officer. At least that way the landowner cannot claim acting out of ignorance.