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 !!

[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.

If you choose this route send a letter in to you L.A first detailing everything you intend to do and include photographs and explain what you intend to do , and give them 14 days to respond, send it recorded delivery.

[Jesse]

If you choose this route send a letter in to you L.A first detailing everything you intend to do and include photographs and explain what you intend to do , and give them 14 days to respond, send it recorded delivery.

 

Sorry, should have said reasons for the claim. The L.P.A failed in there duty to enforce adequate tree protection during the construction phase of the development or advised the need accordingly and as a result a L.A protected tree, tree Tree Preservation Order Number .... was illegally damaged .

[daltontrees]

I wish it were that simple. The Small Claims Court is for recovering money owed, not for proving that money is owed.

[Jesse]

I wish it were that simple. The Small Claims Court is for recovering money owed, not for proving that money is owed.

 

I do try to simplify things, shame hes not go a good local tree man as a friend, But saying that, small claims court is for money owed / and losses , the £1000 could be argued as a loss and he could be invoiced in advance of the tree being removed and often I will ask for fees in advance of Consultancy work as the outcome can not be predetermined. It may not be what the Client want's to be told. The first step is to write to the L.PA telling them you intend to claim compensation, no need to say at this point how, but tell them for how much and give them a timescale to respond, I still think the £80 small claims would/ could work or at least really upset the L.P.A especially if your local news paper got wind of whats happened, and after all the L.P.A would only then try and recover there costs from the developer. For the sake of loosing £80 its worth a crack. Its not about the wining its about the taking part

[Jesse]

After all can he really loose this one ??? I don't think so, Think of the Precedent it would set for future TPO'd trees and the Law regarding trees as we know it.

[Amelanchier]

Sorry, should have said...

 

Slow down man. Just write it all in one post. Once.

 

The OP is going to take a look at his thread, get all excited that it has thirty new replies, open it up and see that it just has one spread over thirty posts.

[Craig Johnson]

go back a few steps, surely the tree should have been included in the site survey as its 'scope of influence' was within the development. the person who did the survey missed the tree, this lead the tree to be damaged?

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

[Inoff the Red]

I wish it were that simple. The Small Claims Court is for recovering money owed, not for proving that money is owed.

 

Not sure I totally agree with this.

If the claim for the damage to the tree can be quantified, notwithstanding any action the council may take for breach of the TPO, the householder can send a claim to the developer for his loss.

If the developer doesn't pay or disputes the claim, the matter can be referred to the small claims court. The court will send a copy of the claim to the developer who then has the right to submit a defence a copy of which gets sent to the plaintiff.

The small claims court will invite both sides to attend a hearing to discuss the matter and then give a judgement.

[fagus]

[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.

[daltontrees]

Not sure I totally agree with this.

If the claim for the damage to the tree can be quantified, notwithstanding any action the council may take for breach of the TPO, the householder can send a claim to the developer for his loss.

If the developer doesn't pay or disputes the claim, the matter can be referred to the small claims court. The court will send a copy of the claim to the developer who then has the right to submit a defence a copy of which gets sent to the plaintiff.

The small claims court will invite both sides to attend a hearing to discuss the matter and then give a judgement.

 

What I meant was that if an application was made to Small Claims without firstly pursuing a quantified (ascertained) amount the Court wouldn't look at it. If a claim is made to the developer for a specific amount and the claim is disputed by the developer a claim could then be made to the Small Claims court. But, and it's a big but, the judge is very very likely to refer a matter of such complexity and possibly judicial precedent to another court. A well-heeled developer might run rings around a poorly prepared and poorly argued self-representation by the owner. And once lost the case can't be re-opened. So that all adds up to gettting a decent lawyer from day 1. And that will cost more than £80 unless it's a dodgy no-win-no-fee merchant. It might seem unfair, but that's the way of the world.