TPO on our Horse Chestnut but still Developers have severed the roots

[biscuit156]

HELP !!!

We have a huge Horse Chestnut (with a TPO) in our garden in Berkshire which has always sat on our border with an adjacent empty field. Developers are now building on this land very close to the border and despite references to the TPO in planning etc, houses have been built very close to it.

 

As part of the work (which is almost complete now) they dug a trench up close to the tree which severed some of the roots. I immediately contacted my Council Tree dept and have today received notification from the Planning and Development - Tree Team.

 

They have noted, the severance to the roots may have damaged the tree and they are investigating further and looking at whether the tree may now need to come down for safety reasons. As you can appreciate, we're furious - the tree is stunning, the environmental impact of cutting such a huge tree down, as well as our loss of privacy (we thought the TPO meant it was safe!).

 

They also mention the fact the on the trunk of the tree there is 'fungal brackets in a tiered formation with cream undersides' which may also have an affect on the stability of the tree and have suggested we employ and arboriculturist to give us a detailed inspection to ensure the 'fracture safety of the tree is not compromised'. and 'at the very least the decay will have reduced the trees safe useful life expectancy' There isn't much fungi (I took a photo which I could post on here) - can anyone offer any advice?? We just don't have the funds to employ anyone to report but feel we need to prove that the fungi isn't affecting the stability of the tree (or is it?) !! We're up against a well know Developer who tends to get what he wants so we need to arm ourselves with as much info as possible !

 

I'm at a loss as to what to do !! Any help/advice much appreciated !!

[kevinjohnsonmbe]

Just post up the planning app reference or postcode and which council area it is. The planning submission and decision documents (including arb impact) are a matter of public record. No way you'd be liable for slander for doing that, just be careful expressing a "view" on the standard of work perhaps.

[benedmonds]

I'd be trying to get the developers to remove it. I have removed a number of trees over the years that have been adversely effected/killed by a neighbouring development. Unfortunately the trees may take a few years to die and by then the developer has long gone, and are never going to accept responsibility.

 

The neighbour/tree owner has to pick up the cost of removing the tree killed by the developer, who has normally built against their wishes and to make things worse the new buildings that led to the damage and are under the tree, mean the removal is MUCH more difficult and costly.

[Alan Webster]

No one has mentioned if the trench and grading work was approved as part of the planning application then it over rides the TPO.

The issue is with the probable demise of the tree resulting in possible increased risk if this is the case

[Alan Webster]

Ultimately the developer has caused damage to a TPO tree without permission. They should be liable to a significant fine but as some of us realise councils aren't always the straightest in terms of planning so it may never get persued. If the tree has fungal brackets on it is probably advisable to have the tree inspected so as to gain a truer reflection as to what the problem is.

If they have planning permission for the work then they effectively have permission to do this.

[Alan Webster]

Without the whole story it is not possible to know who is at fault - if any one.

Did the developers not tick trees present on site box on application?

Did the authority insist on a 5837 survey for verification?

Was a 5837 produced that was not up to standard?

Was the tree categorised as U BS5837:2012? (not R BS5837:2005)

Did the developers ignore conditions and the TPP?

 

Look to appoint a consultant who will be able to help you.

[eddiegts]

If they have planning permission for the work then they effectively have permission to do this.

This is how i see it to and when ever I ring my TO and talk about such problems his answer is the same.

[Jesse]

Would be cat U or R in old money, also the planning approval would in affect override any TPO's in simple terms if its retention was a constraint , its a low quality tree, in poor condition , possibly a Hazard, Occupiers Liability Act, if its situation is to change and in respect of any increase in risk which it mite present to the general public, ie in respect of any new foot paths or roads you should consider taking it down.

 

No Tom, stick with your thinking, Planning Approval will override a TPO. But it does or can become complicated when trees are located on boundary's but less complicated when those trees are defective , Cat U or R depending on how old the Survey is , and for the record I prefer old 5837 2005, now I have just opened a can of worms but stand by my interpretation of the Law and what I have said , and my own interpretation of it. Don't anyone ignore 'The Occupiers Liability Act'.

 

Jeez, that's not looking too clever.

 

Send me a PM with the details if you like. Just click on my username and then follow the link to send me a private message.

 

Cat U or R in old money, lets please not spend too much time on this one or advocate that the owner of this tree commissions to many experts at great cost to them selves , if the tree was sound and above the cat of U or R then it could be a different story.

 

If they have planning permission for the work then they effectively have permission to do this.

 

Yep, in a sort of round about way what you have said is the nuts and balls of it, as long as the developer has complied with the TCP. thats it.

 

Perhaps rather than removal of the tree, you could have it reduced back, a sustained but gradual reduction would work it back to a manageable size, but still retaining leaf cover, the tree definitely looks like it has enough low down regrowth

 

 

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The low down growth is possibly associated with stress as a result of its condition, great old tree, and a great shame it could not have been left to grow old and die in dignity.

 

okay, no worries as your photos show exactly whats going on. Big shame on the developers for doing this - your local newspaper should run a story on this.

 

Developers are money grabbing , low life forms , found mostly when walking in the park on the underside of your shoe . The fine of an infringement of a Tpo or any other constraint is often absorbed into the cost of the 'desire' the build, the dream, often at great cost to wild life and the environment , the developer absorbs this like a mutant spung , only to pass it on when reaping his reward. I really would like to say some massive FFFFFFFFFFFFFF WORDS and CCCCCCCCCCCC words but I have recently been receiving help.

 

In short, Paul you should know this, if the developer has complied with 5837 in FULL. Then he's done nothing wrong.

 

BUT THE L.P.A MAY BE AT FAULT .

 

And they will never admit to that.

 

In short, Paul you should know this, if the developer has complied with 5837 in FULL. Then he's done nothing wrong.

 

BUT THE L.P.A MAY BE AT FAULT .

 

And they will never admit to that.

 

Unless this was a 'Retrospective ' Application , there are so many twists and turns, most L.P.A's deliver a poor service and assume that we all know very little , more fools them.

 

This is the simple chain of events.

 

1 . 5837 survey submitted with the Planning Application. As requested by the L.P.A.

2 . Key point. All trees within and within Influencing distance of the development proposal would be assessed as part of BS 5837 Recommendations.

3 . This is the developers get out card, at this point the L.P.A were in effect notified of the tree,and any intentions to carry out tree management works, if this was U or R it could mean as an out side owned tree that it just gets left with its roots removed, end of, even if it was TPO'd , the L.P.A. SHOULD know whats T.P.O'd .

4 . The T.C.P would also be included , again giving the L.P.A the opportunity to impose restraints or conditions. ?????

5 . Look up the application on line and it will confirm all details and conditions imposed by the L.P.A in respect of retained trees and conditions and what tree replacement details are in place.

Edited December 18, 2013 by Amelanchier
Merged in the interests of clarity

[TGB]

A few years ago, a relative bought a property and wanted to extend the house but the heavily wooded garden prevented this due to TPOs on most of the trees, due to age and proximity to a well known golf course.

 

A friend of his knew one of the local TOs, who unifficially said the owner, should not contact the LA in advance. But start 'gardening' and maybe include a small fish pond. If at some point during the gardening/pond dig, the roots of certain trees were severed, then this would be viewed by the council as being unfortunate. And the LA may then insist that the trees be removed at the home owner's expense. But that there would be no fines involved.

 

Over the next few months, some gardening did indeed take place and roots were accidentally disturbed. The home owner did then approach the LA and got a finger wagged in his direction, while demanding the removal of certain trees at the owner's expense. The trees were removed and a year or so after, the owner applied for permission to extend and duly got permission.

 

When I heard what was intended, I was amazed that owner thought this would go without a hitch. But without a hitch it did go. The TO in question was not paid anything for his general rambling over a pint.

 

For obvious reasons, I can't reveal the county or town. The extended home has since been sold. The house never did get a fish pond.

Edited December 18, 2013 by TGB

[Gary Prentice]

No one has mentioned if the trench and grading work was approved as part of the planning application then it over rides the TPO.

The issue is with the probable demise of the tree resulting in possible increased risk if this is the case

 

If they have planning permission for the work then they effectively have permission to do this.

 

It's a bit unlikely given that

a) the tree is offsite - belonging to someone else

b) the civil liability that then occurs, by depriving the owner of his property ie by trenching/de-stabalizing the tree and forcing its removal

[Paul Barton]

Cat U or R in old money, lets please not spend too much time on this one or advocate that the owner of this tree commissions to many experts at great cost to them selves , if the tree was sound and above the cat of U or R then it could be a different story.

 

I'm not assuming it's a low quality tree without having seen it. And even if it is a U category tree, it is privately owned so cannot be removed (or damaged) without the owner's consent!