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 !!

[Gary Prentice]

Paul you appear to be one of the few on this thread actually talking sense. Can't find the clapping emoticon unfortunately.

[Mark Bolam]

Things aren't looking good for the tree.

 

They will look even worse when the houses are built and the residents start saying 'I love trees but I just need some more light in my garden....'

 

As Ben said earlier, this matter needs sorting out when the developers are still around.

[Tom D]

The category of the tree as per 5837 is irrelevant as the tree was not owned by the developer. As is the presence of fungi, only an expert can determine whether the tree is safe or not, so the developer can not use the fungi as an excuse. The lack of tree protection measures for the duration of the building works is a clear contravention of the planning conditions, which should be available for all to see on the planning portal anyway.

[Jesse]

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!

 

I agree, or does it only become an offence if you remove off site the branches or roots ? and isn't the act of such an offence called' Conversion ' the digger driver should have given the roots back . and I know TPO law puts a different slant on this, my point has been lost a bit, it was probably not the digger drivers fault, nor the developers fault, to find out who should be blamed the author of this post, owner of the tree needs to go online with the Planing Application number and search through all the documents relating to the application , look closely at the 5837 Survey and at what T number the original Surveyor has given your tree, make a note of it and what recommendations were made , then see if the Tree Officer picks up on it in his document (Comments from the Landscape officer ) , he should have and then at this point its original TPO number should have been documented within the Application ( This was the first opportunity for negligence to occur) Note what was said about the tree and what action was to be taken, retention ? protection ? notification ? to the owner, of the intention to carry out work on the tree ? Conditional Approval , ( This was the second opportunity for negligence to occur ) It should have been referenced again clearly stating what action was to be taken. Notification again, ( Third opportunity for negligence to occur ) you living next to this development , with your TPO'd tree should have been written to by your L.P.A and at the very least asked if you had any objections to the development proposal ?, If everything so far along this chain is as it should be then any blame can now be directed to the Developer and his team. Its sometimes easier to go back to the start to find who is accountable than to stat at the end and work backwards .

[treequip]

My take on this situation

 

The LA has dropped the ball here, it happens all too often but chewing that over isn't going to lead to a solution.

 

So, the tree is in poor shape, it has internal decay and a compromised root structure. It sits on a boundary and is likely to cause shade and leaf issues with the owners of the new housing. It’s unfortunate that the houses are going where they are but the land owner is entitled to use the land as they see fit.

 

Where does that leave us? The prognosis for the tree is not good, the internal decay is a significant issue that will not improve over time and in all likelihood will further compromise the structural integrity. The root loss is also significant, it can cause instability and the loss of the resource can lead to a weakened tree which will compromise the trees ability to deal with the on going fungal infection and leave the tree vulnerable to further infections.

 

What to do next? The neighbouring land owner is entitled to use their land as they see fit and that includes cutting the roots (TPO notwithstanding). Legally they are responsible for their actions so if the actions kill the tree you can bring a case for compensation, but the burden of proof will be on you to bring evidence that will satisfy the courts that their actions killed the tree.

 

They may well defend their actions under their common law right to remove the trespass of the roots. They could also argue that the on-going fungal infection pre dates their activity and that would be hard to refute.

 

That leaves you in a civil case for damages, you can run that yourself but the evidence you will need is going to cost and the case is far from cut and dried.

 

The prognosis for the tree is not good, ultimately it may succumb to its injuries and need to be removed, if that is the case you have a decent chance of getting the developer to fund that or lesser works and that’s the option I would be going with.

[Alan Webster]

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

 

Permission in terms of the TPO.

They don't need permission to remove trespassing roots but could be liable for loss of tree or a failure if it was attributable to the work.

 

The developers would have a good defense if they have complied with all the LA requirements, and they would try to shift liability on to the LA

[Craig Johnson]

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!

:congrats:

 

 

it is for the owner of the tree to decide how they manage it based on their needs and it may be that a old tree is worth more to them than the damage it my cause if it fell over the boundary

[kevinjohnsonmbe]

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

 

Most replies "appear" to have missed the implication that the tree is stated as being ADJACENT to, not in the building area.and belongs to someone other than the developer. As you say, makes for a different set of consequences!

[Paul Barton]

I've been furnished with some details of the site now, enough to have a search through the planning documents. It's a complicated planning history, with numerous applications, an appeal and then permission with relaxed conditions.

 

In short, the latest planning decision notice that I can find is dated March 2012, and conditions 17 and 18 state:

 

17: A survey shall be undertaken of all trees, shrubs and hedges on the land, indicating which are to be retained as part of the development. The survey shall be submitted to and approved in writing by the LPA before the development hereby permitted commences. (bold emphasis my own)

 

I have highlighted in bold what I think are 2 relevant issues here - the condition makes no requirement to include adjacent trees (and does not references BS5837:2012 which recommends this as good practice). It also asks that the survey is submitted and approved before the development starts, but I can see no document on the planning pages that indicates that any tree survey was submitted.

 

18: The trees, shrubs or hedges indicated for retention shall be protected with chestnut pale fencing not less than 1.2m in height for the duration of the development and none of the trees shall be damaged, destroyed or uprooted without written permission of the LPA. Any trees removed without such consent, or dying or being severely damaged or becoming seriously diseased before the end of that period shall be replaced with trees of such size, species and positions as may be agreed in writing by the LPA.

 

This is an unfortunately weak condition...protection fencing (less robust that specified in the BS) is conditioned, but it does not state how the fencing should be positioned in order to actually protect the trees!

 

I would agree with treequip above - it looks like the LPA have dropped the ball on this one. The tree owner should document all this as at the very least so that the LPA cannot accuse them of damaging their own TPO'd tree. I would also recommend a valuation and then try and pursue the LPA an/or developer for some costs to cover replacement planting.

[biscuit156]

Thank you all for your input - must say I'm a bit confused (although you all seem to know your stuff!!) and have already resigned myself to the fact it's probably going to go. If I'm honest, I always thought it would as it's so clearly always been an issue for the development and as a few have hinted... by damaging the roots, he'll get a smack on the wrists, maybe a little fine (the Developer has been done for this before) and that'll be about it. That said, I won't let it go lightly and will pursue - whether we'll get compensated is another matter I guess. Would much prefer our tree than a little pay off though! I just don't understand the point of TPO's though!!

 

Paul - thanks for your private message and I have been in contact with planning already re the Clauses you mentioned and will let you know how I get on!