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 !!

[Alan Webster]

ps. no one picked up on the abatement of nuisance comments from my post this morning?

[Gary Prentice]

ps. no one picked up on the abatement of nuisance comments from my post this morning?

 

What damage were they doing?

[Paul Barton]

Can I please remind everyone that this is in the homeowners advice forum?

 

Let's remember the OP and not put other potential enquirers off posting here. That means:

- taking time to read the thread before replying

- considering your posts before submitting them

- leaving egos at the door.

 

There has been some interesting discussion which is worth continuing so a separate thread will be started about the issue of trees adjacent to development sites.

Edited December 22, 2013 by Paul Barton

[Alan Webster]

What damage were they doing?

 

Don't have to.

"The right of an owner to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries.... and there is no trace of the age of the tree or its branches being a material circumstance for consideration" (Lemon v Webb Court of appeal)

 

Harman J in McCombe v Read

"It is very old law that if my neighbours tree encroach on my ground, either by over-hanging boughs or by undermining roots, I may cut the boughs or the roots so far as they are on my side of the boundary"

 

Reference:

Mynors. C. 2011. The Law of Trees Forests and Hedges 2nd Edition. Sweet and Maxwell. London.

[daltontrees]

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

.

 

I will send you a private message, the miracle was that with so many frequent and permanent targets the damage was slight compared to what could have happened.

[daltontrees]

 

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

 

Yes I am insured, although insurance is no t alicense to be reckless. And I have not suggested a course of action, I have only expressed what I think are the most likely interpretations and outcomes.

 

More generally, I wouldn't dream of propnouncing on a subject without knowing everything and seeing the tree and being appointed to pronounce. And even more generally, if you are correct about liability for comments which are made for free in good faith on generalities to householders on this forum, then Steve might be well advised to close down this part of the Forum forever, and all other parts where anyone (fellow arbs included) ask for advice. But with all due respect (your knowledge of the law indicates that your opinions are pretty well considered) I don't agree with you on this point and I am not terribly worried about liability. The moderators should consider it though.

[David Humphries]

The moderators should consider it though.

 

Rest assured it has been considered Jules.

 

But that's not a debate for here and now.

 

 

 

.

[daltontrees]

ps. no one picked up on the abatement of nuisance comments from my post this morning?

 

I picked it up and dropped it immediately, as I didn't think it was in point. The exemption only applies to necessary abatement or prevention which doesn't seem to apply here. This has been explored elsewhere ont eh Forum, from which I concluded that if no other alternative actions (such as laying drains under the roots instead of cutting them) had been considered then it was not necessary abatement.

[daltontrees]

Don't have to.

"The right of an owner to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries.... and there is no trace of the age of the tree or its branches being a material circumstance for consideration" (Lemon v Webb Court of appeal)

 

Harman J in McCombe v Read

"It is very old law that if my neighbours tree encroach on my ground, either by over-hanging boughs or by undermining roots, I may cut the boughs or the roots so far as they are on my side of the boundary"

 

Reference:

Mynors. C. 2011. The Law of Trees Forests and Hedges 2nd Edition. Sweet and Maxwell. London.

 

Ah but this is overridden by statute of TPOs and is only exempt if the action is necessary. I am inclined to agree with the sentiment in btggaz's post. If there were no TPO you would of course be entirely right, subject in my mind to chasing up the rteference you provided on the matter of mischieft.

[daltontrees]

Rest assured it has been considered Jules.

 

But that's not a debate for here and now.

 

.

 

David, cheers for that but rest is far from assured. I have just read the Homeowners Tree Advice general rules. They cover the Forum owner(s) but not its members. They recommend that proper advice is taken but do not state any disclaimer on behalf of members about reliance on members' advice.

 

I will mull it over, but as it stands I can see no reason why I or anyone should try to be helpful to punters (or fellow Arbtalkers) in my free time for no reward if there is the slightest suggestion that my advice might be held against me. I shan't labour the point, but if I conclude the worst I will of course have to quit my contributions, withdraw all previous ones and make any new ones with a lengthy and tiresome generalised disclaimer attached.