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 !!

[daltontrees]

the 'we only got instructed to do the site' wont wash

 

It might, though. Remember the planners only stipulated that tree on the site were to be surveyed. Why survey trees that the planners in their 'wisdom' didn't want to know about.

[daltontrees]

[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.]

 

Ignorance is no defence but otherwise not so,both Dalton and I have said full planning consent overrules a TPO. My understanding is that the Planning Act, like the Highways Act can overrule and give exemption.'

The understanding is that such large things( e.g trees) in the landscape were they to be considered, and assumed to have been considered, by the planning authority.Not the developers fault if they didn't.

The Planning permission paperwork will, in my words very briefly say... Mr Developer you can build so many houses at this location and in these positions. If later the LA want to change things i.e you can no longer build said number of houses or in the positions agreed the developer will ask for compensation.

 

Sadly I agree with this. Ignorance of protection is never a defence but when planning permission authorises tree (or root) work there is no crime in the first place. I am still unclear though whether the consent gives full immunity. I will go off and check just now...

[daltontrees]

Sadly I agree with this. Ignorance of protection is never a defence but when planning permission authorises tree (or root) work there is no crime in the first place. I am still unclear though whether the consent gives full immunity. I will go off and check just now...

 

Oh dear, this has suddenly got complicated. The Regulations say that nothing shall prevent the cutting down, topping, lopping or uprooting of a tree so far as such work is necessary to implement a detailed planning permission. It does not exempt the wilful damage or wilful destruction of a tree. Presumably because severing roots, which might otherwise be 'damage' (and which may be different from uprooting) could be controlled by planning conditions. There is no way in my mind that the legislation has anticipated this scenario where damage is done to a TPO'd tree that is mainly situated outwith the planning application boundary.

 

Was the developer meant to check for TPOs outside his land. No. On balance if it went to court would the onus have been on the Council that makes TPOs to notice and control the damage by conditions. I think so.

 

But does the exemption due to planning permission apply? I'm not so sure it does. It might rest on whether severing of roots counts as uprooting a (whole) tree. Patently it's different. And so the exemption cannot be relied upon. Which shifts the question onto the word 'wilful'. Did the two eejits with the bulldozer wilfully damage the tree? Was the intention to damage the tree or was the intention to remove the roots. I know they have the same consequence for the tree, but the legislation is there to examine the motive. There has to be damage and will.

[daltontrees]

Does no-one have anything to add about this? I was hoping someone could point out a mistake in my reasoning or interpretation of the legislation.

[Gary Prentice]

Does no-one have anything to add about this? I was hoping someone could point out a mistake in my reasoning or interpretation of the legislation.

 

I'm still thinking and trying to formulate an answer (that won't be torn to shreds:001_tt2:)

 

Some of us think a little slower:lol:

[kevinjohnsonmbe]

I'm still thinking and trying to formulate an answer (that won't be torn to shreds:001_tt2:)

 

Some of us think a little slower:lol:

 

Same, same! I started a reply (but since I've been in hospital overnight with daughter, I couldn't check my facts)

 

Can't argue with your logic! (But you expected that because it's thoroughly thought through!!)

 

The only point I was trying to recall from memory was that I recall an aspect of the planning submission that asks something like "does the proposed development affect trees on the proposed site or trees ADJACENT to the proposed site. Not sure if that's just a Cornwall planning form but would have expected it to be from a national framework - that's the bit I couldn't check from hospital.

 

If my recollection is accurate, and it's true across national planning submissions, and either the developer (or his architect / arb consultant) didn't include adjacent trees in their submission, or, if they did and the LA failed to spot it and place conditions (that's a lot of "if's") then maybe some liability could be found there?

[daltontrees]

I hope I don't come a cross as tearing things to shreds. My mind takes a rigorous logical approach on most things (to the great exasparation of friends and family sometimes) and if I see a flaw in an argument that I think I can correct I do. The only satisfaction is in sharing greater understanding.

 

And I don't think particularly fast, I just go straight to the point and ignore everything else. I am pretty organised with my reference material too. Sometimes I miss things, and anybody that wants to and can should point these out to me. All part of the sharing.

[kevinjohnsonmbe]

I hope I don't come a cross as tearing things to shreds.

 

Not at all (from my perspective anyway!)

 

I value the sharing!

[Gary Prentice]

I hope I don't come a cross as tearing things to shreds. My mind takes a rigorous logical approach on most things (to the great exasperation of friends and family sometimes) and if I see a flaw in an argument that I think I can correct I do. The only satisfaction is in sharing greater understanding.

 

And I don't think particularly fast, I just go straight to the point and ignore everything else. I am pretty organised with my reference material too. Sometimes I miss things, and anybody that wants to and can should point these out to me. All part of the sharing.

 

Being back in a learning environment, I'm learning to approach things with a more formal, structured methodology. So in a debate, it's better to be accurate and informed, (ie, engage brain before opening mouth), otherwise the opponent or person with a differing viewpoint destroys your argument. It's all part of the learning, in my opinion, and any discussion I have with you always encourages me to up my game somewhat.

[fagus]

Difficult to comment further without a site inspection and to interview the Developer to find out if it was driver error or something more sinister.

As has been said bringing a well briefed Developer to task would not be easy. Similarly LA's are well versed in sorting things out and getting stuff into the long grass. Neither the Developer or the LA will fancy a battle of our Consultant knows more than yours.

It is easy to forget what the rectification aim should be here, rubbing someones nose in it and getting some cash would not be easy. Could the situation be retrieved by some landscaping on or off site as a solution. A nice big young tree with a healthy life span planted in a good position instead of diseased mature tree with a short life span might be a win. Would be easier solution to discuss in a meeting and put the whole thing to bed for all concerned.