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 !!

[treequip]

I would also recommend a valuation and then try and pursue the LPA an/or developer for some costs to cover replacement planting.

 

I would go with that, but I would expect the developer to underwrite the entire cost of the felling and replacement.

 

It is in his issue to do so since its possible the tree will affect 2 or 3 of his houses and its removal will make them easier to sell.

[Gary Prentice]

I know we look at things from an arbs perspective and are probably a little tree biased. But I still find it dis- heartening when seeing conditions coming from planning departments . There is enough statute law in place to prevent things like this , if everyone does their jobs correctly, instead we see planning departments dropping the ball and when they haven't toothless legal departments refusing to back the TO

[fagus]

Whilst the isssue of the tree may/should have been considered in the planning stage I am not very hopeful of a decent outcome in this matter.The tree has evidence of decay so a tree report could be pretty damning on the health of the tree which would be hard to dispute.

Plus !

An application is not required for tree works necessary to implement a development which has the benefit of full, detailed planning permission and where the trees are directly in the way of that development which is about to start.

Seems a contradiction to me and I have never fully understood this but it makes a gigantic loophole in my view. Loophole closed by more enlightened LA's requesting Arb reports but if trees on site are not shown on the drawings or the drawings not seen by TOs the lash up occurs.

[Inoff the Red]

It is not unusual for trees to be "seen to" so that a developer is inconvenienced as little as possible. It is difficult to see from the pictures but why was the trench actually dug in the first place?

 

 

This is one of those issues where the local authority will do everything it can to sweep this under the carpet. I know of an incident where a hotel built with an one storey more than it had planning permission for. There were all sorts of threats from the council planners but nothing happened.

 

With this tree, there may be lots of hand wringing and threats of action against the developer (purely for PR purposes you understand) but in reality nothing will happen and it will soon be forgotten over christmas.

[daltontrees]

Just looking in on this thread for the first time. What a mess! Advice and speculation coming thick and fast. If I get a chance I will throw mine into the hat. I wouldn't bother at his stage sine there are too many posts to follow up, but I feel there are a number of clarifications that might help.

[ben lightfoot]

Only just read this too and is a great shame. I can recommend an arboricultural consultant in the Berkshire area that would help with identifying the degree of potential decay and even has expert witness experience if needed for advice on the damage to it. Try Simon at tree surveys on 01189 762901. Sorry if it's seems like a shameless plug but local help could be useful, good luck with it and keep us updated

[gensetsteve]

I know nothing really about trees but have developers on my boundry and know plenty about them. Does the tree look nice in the summer or is it long past its best. If its knacked I would get the developer to pay for its removal. If you have a housing estate going up next door I would be thinking of a line of fast growing conifers or laurels at the very least a beech hedge.

[daltontrees]

I think it is importat to remember that a TPO covers a tree, including its roots. Roots know nothing of legal boundaries and fences. If the TPO'd tree (including its roots) has been damaged without lawful excuse it is a criminal offence.

 

Next thing is that the planning application and consent clearly did not include the OP's land. Therefore it doesn't matter what the consent says or doesn't say about trees, the normal rule that planning permission overrides TPOs does not apply here. Or does it?

 

On the one hand the tree is protected and had it been in the application the LA would perhaps have noted the potential for damage to it and conditioned the consent accordingly. The condition they did add about trees on the site is therefore irrelevant. On the other hand part of the tree (the roots) was in the application site and the develooper could try and claim immunity from prosecution, arguing that the LA should have protected it by conditions if it deserved it. Playing the whistle, as it were.

 

I think the condition of the tree is irrelevant to the debate about right or wrong. No matter which way you look at it there is no record of the view that the developer took on its worthiness for retention and even if the developer did consider it, it would be unconscionable to decide to remove roots on the grounds that the tree was knackered anyway.

 

The LA might lazily have been waiting for the tree survey of the site before properly considering the trees. But even so this would not have identified the TPOd tree, it's condition or the presence of its roots in the development site.

 

Let's say that is the case for now. The developer has dug a trench. The tree is damaged. The roots were encroaching on his land, unless there is statutory impediment to damaging the roots, the developer was perfectly within his rights to remove the encroaching roots. The focus then would be back on the questions of the competence of the LA in failing to note the threat to the off-site tree from the development and of whether the developer has immunity from prosecution because of the consent. On what has been said so far, both the developer and the LA are implicated.

 

If the developer has immunity, that is the end of it for him. And there is nothing that the owner can do to get redress from the developer. I am struggling to see how there could be any redress from the LA either. If he doesn't have immunity, he can be prosecuted and fined. The fine could reflect that the tree is diseased and might have limited time left to provide public amenity, and the fine might be reduced accordingly.

 

And in the latter case, the tree's life may have been irrreversibly shortened. But the roots were still an encroachment, so apart from criminal prosecution, what right would the owner have to compensation for premature loss of the tree?

 

There may be flaws in my logic, but I do feel it is down to whether damaging a TPOd tree (the root part) overrules immunity by planning consent or vice versa. Anyone know?

Edited December 19, 2013 by daltontrees

[Paul Jenks]

Local Government Ombudsman • Home

An uncle of mine works for these folk. They love to get stuck into LA's. Try phoning for advice. They will recommend complaining to the LA first to see if you can get redress.

 

Planning or no planning, I'm sure the damage and destabilisation of a TPO tree is a criminal offence. Ignorance of protection status is no defence.

 

Also try to get information from the LA without them prefacing it with, 'without prejudice' as this will be inadmissible as evidence, I believe.

[Jesse]

This would be my take, if I owned the tree, small claims court, it will cost you £80 , and that's it, lodge it against your L.P.A for negligence , you will need to put together a value of what price you value you tree/ losses , top of my head, what cost would an effective summer screen be ??? high summer fence? something that's enjoyable to look at in the summer that will be lost early as a result of what the contractor has done after seeking advice from your L.P.A. it was old, get some prices for its removal, add say £1000.00 for loss, and unless you L.P.A are complete morons I am sure they will pay out of court, at worst you loose £80 fee for bringing the case, for me I would only Google earth the site and use your photographic evidence. The tree is shot but you have good grounds for recompense from your L.P.A. . I don't think its worth you throwing lots of money at this, Cost £80 plus say £1000 plus what ever to remove the tree , say £1500 and plus the cost of a lets say Standard tree with support and installation lets say for argument sake , Standard, containerized H staked , same sp £250 so your total claim £ 2580.00 a contingency fee of say £500 could be put on top , professional fees, (what I would charge none site visit distance appraisal) total then being £3080 . Submit that as a claim and I think you L.P.A. WOULD AT LEAST SIT UP, it would only cost you £80 and you should have a good result. But no guarantees. Hope that helps.