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]

Just because the portion of the tree that is on the site is below ground does not ...................you get the point of my argument. It is an issue that has annoyed me for ages and one I believe should be addressed in the legislation.

 

How, specifically, do you think the legislation should address it? BY the way, I agree with you for all the reasons I have gone through in my previous posts, I am just cutious to know what you think the exact issue is. I have a fair idea myself.

[daltontrees]

Replying on btggaz post. Exact details of service runs and finished levels are not necessarily needed for a planning application to be approved. But they could be incertain cases and ironically the most likely tome for them to be needed would eb if trees were threatened. On the other hand, the service runs and levels could be part of the information submitted withteh application even if it wasn't asked for. As such they could be covered by the approval.

 

In the ordinary course of events I don't think it can be expected of a developer to check the status of trees outwith an application site. Conversely the planner registering the application should have and could have asked for the application boundary to be extended to cover TPOd trees or asked for a survey to take account of the off-site TPO. In a straight argument about who missed the TPO, the developer will no doubt say he did a title search and found no TPO recorded on his land. Not a full and perfect defence but at that point I can see a judge turning round to the Council and asking why they didn't flag it up. In the end, I can't see the statutory position resulting in clear-cut liability for anyone. And as another poster has alluded to (? Andy Webster) there is not much public interest to be served by a withc-hunt to establish malice or negligence where it was very possibly just oversight and shared blame for carelessness. All in all, it might become as you say a largely civil matter. More on this in a moment, I need to go back and look at the pictures.

[daltontrees]

OK, continuing on my speculation.

 

You have assumed that the root damage is so severe that the tree has to go. But look at the evidence for a moment such as we have been told. The tree looks to have a DBH of say around 60cm, ignoring the big burrs. A conventional RPA calculation would suggest a radius of exclusion of 7.2m. The excavations have come to within 3 to 4 m of the centre of the butt. A conventional RPA has therefore been substantially breached.

 

But we have also been told this development site had been an empty field. With a history of agriculture including ploughing and tilling, there would be no significant roots at a shallow level beyond the field margin. Would a tree in this situation not have a disproportionately high fraction of its roots on the other side or along the field margin? And is there not the possibility that the RPA could reasonably be adjusted. That is to say, maybe the damage is not terminal. I see only 3 roots severed. If that's all, I wouldn't condemn the whole tree. At least not until I had investigated that proliferation of fungi on the stem, which I am guessing are as Mr Bullman first speculated Polyporosus squamosus. I had a chestnut near here snap at the stem at the exact spot of a lesser P.s infection two weeks ago, and it's a miracle no-one was killed or hurt.

 

I'm just saying I suppose that we shouldn't necessarily assume that a civil action could connect the root damage (ignoring old agricultural damage) to the imminent demise of the tree. Any of us could possibly successfully defend the developer by creating significant doubt as to cause and effect.

[daltontrees]

Compensation recoverable through a Civil action would look at if the developer took reasonable care and if the abatement was mischievous.

 

I would be interested to follow up teh concept of mischevious abatement. Do you have a particular case or text you got this from or are you paraphrasing the general understanding of the law?

[kevinjohnsonmbe]

There has been a lot of speculation about this scenario some potentially libellous and in many cases inaccurate.

 

Interested to hear which parts of this thread you think might have any potentially libellous content??

[daltontrees]

There has been a lot of speculation about this scenario some potentially libellous and in many cases inaccurate.

QUOTE]

 

This is worrying! I would hope it is understood by anyone using this Forum, whether it be a householder looking for advice or anyone contributing to a debate that use of the Forum does not constitute a contract where normal duties of care apply. And for libel to occur, someone needs to be defamed and for there to be unjustifiable measurable loss of reputation or words to that effect. No names have been given, though, personally I have no idea who the developer, the Council or the owner are or where the site is.

 

Do you think that a site moderator should be reviewing the libel situation?

 

I would add also that there is an inherent flaw in looking for tactical advice on a public forum.

[David Humphries]

............. If that's all, I wouldn't condemn the whole tree. At least not until I had investigated that proliferation of fungi on the stem, which I am guessing are as Mr Bullman first speculated Polyporosus squamosus. I had a chestnut near here snap at the stem at the exact spot of a lesser P.s infection two weeks ago, and it's a miracle no-one was killed or hurt.

 

I suspect that the tier of brackets on the stem are a Ganoderma species and not Polyporus squamosus.

 

Polyporus have much larger pores than Ganoderma species (even at the magnification in these shots, it's fairly clear) and are stalked and more often than not growing out of a cavity, fissure or open wound, unlike the ones in these images which appear to be emanating from the up damaged trunk section.

 

I too agree that further assessment of the brackets and the associated decay is required here.

 

Without wanting to derail this very interesting thread, I'm intrigued with your 'miracle' statement Jules, regarding the P. s failure you attended. If you wouldn't mind, could you pm me with the details of the time of the incident, weather conditions and type of target associated. Would appreciate it, thanks

.

[Gary Prentice]

Replying on btggaz post. Exact details of service runs and finished levels are not necessarily needed for a planning application to be approved. But they could be incertain cases and ironically the most likely tome for them to be needed would eb if trees were threatened. On the other hand, the service runs and levels could be part of the information submitted withteh application even if it wasn't asked for. As such they could be covered by the approval.

 

In the ordinary course of events I don't think it can be expected of a developer to check the status of trees outwith an application site. Conversely the planner registering the application should have and could have asked for the application boundary to be extended to cover TPOd trees or asked for a survey to take account of the off-site TPO. In a straight argument about who missed the TPO, the developer will no doubt say he did a title search and found no TPO recorded on his land. Not a full and perfect defence but at that point I can see a judge turning round to the Council and asking why they didn't flag it up. In the end, I can't see the statutory position resulting in clear-cut liability for anyone. And as another poster has alluded to (? Andy Webster) there is not much public interest to be served by a withc-hunt to establish malice or negligence where it was very possibly just oversight and shared blame for carelessness. All in all, it might become as you say a largely civil matter. More on this in a moment, I need to go back and look at the pictures.

 

I would expect a developer to have an above-average knowledge of both TPOs and the zones of influence of roots. Most, afterall, deal with planning matters and the NHBC tables, indirectly, for footing depths and the relationships of trees and soils. I think a good counsel would tie that defence up in knots rather rapidly.

 

 

OK, continuing on my speculation.

 

You have assumed that the root damage is so severe that the tree has to go. But look at the evidence for a moment such as we have been told. The tree looks to have a DBH of say around 60cm, ignoring the big burrs. A conventional RPA calculation would suggest a radius of exclusion of 7.2m. The excavations have come to within 3 to 4 m of the centre of the butt. A conventional RPA has therefore been substantially breached.

 

But we have also been told this development site had been an empty field. With a history of agriculture including ploughing and tilling, there would be no significant roots at a shallow level beyond the field margin. Would a tree in this situation not have a disproportionately high fraction of its roots on the other side or along the field margin? And is there not the possibility that the RPA could reasonably be adjusted. That is to say, maybe the damage is not terminal. I see only 3 roots severed. If that's all, I wouldn't condemn the whole tree. At least not until I had investigated that proliferation of fungi on the stem, which I am guessing are as Mr Bullman first speculated Polyporosus squamosus. I had a chestnut near here snap at the stem at the exact spot of a lesser P.s infection two weeks ago, and it's a miracle no-one was killed or hurt.

 

I'm just saying I suppose that we shouldn't necessarily assume that a civil action could connect the root damage (ignoring old agricultural damage) to the imminent demise of the tree. Any of us could possibly successfully defend the developer by creating significant doubt as to cause and effect.

 

I may be missing something here on your hypothesis, but the OP has only stated that the site was an 'empty field'. The assumption of ploughing and tilling and an allowable offset of the RPA may be moving the goalposts. There is no evidence either, from what has been supplied, to say that there isn't a major constraint to the owners side and most of the roots were therefore on the field side. We, or I, are simply going too far in our speculation, based on the limited information available. There appears to be a significant change in the grade however, within 2-3m of the stem. That may be only my interpretation of the picture, but it appears to be almost a meter lower than adjacent to the tree.

[Alan Webster]

There has been a lot of speculation about this scenario some potentially libellous and in many cases inaccurate.

QUOTE]

 

This is worrying! I would hope it is understood by anyone using this Forum, whether it be a householder looking for advice or anyone contributing to a debate that use of the Forum does not constitute a contract where normal duties of care apply. And for libel to occur, someone needs to be defamed and for there to be unjustifiable measurable loss of reputation or words to that effect. No names have been given, though, personally I have no idea who the developer, the Council or the owner are or where the site is.

 

Do you think that a site moderator should be reviewing the libel situation?

 

I would add also that there is an inherent flaw in looking for tactical advice on a public forum.

 

The posts to which I refer I'm sure are not libellous enough for any legal action to be considered. There has been many posts saying such things as 'a clear breach of the TPO regs' etc.

 

I see that you extrapolated my comments into providing advice on a forum and liability for that advice. If you provide advice in a professional capacity and a member of the public acts on it in good faith and then it led to a loss etc. They could try to recover their loss from you or your insurers (as you are giving advice you do have professional indemnity insurance don't you?)

Again it would not be cut and dried - a judge would decide.

 

And no I don't think the moderators should be involved. It was meant to be a note of caution to those who are giving definitive opinions

[Alan Webster]

I would be interested to follow up teh concept of mischevious abatement. Do you have a particular case or text you got this from or are you paraphrasing the general understanding of the law?

 

Mynors 2nd Edition 5.3.3 page 117, reinforcing the comments in Lemon v Webb