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 !!

[Bren.]

Surely this tree was on the development site, and should have been included in the survey.

[skyhuck]

Surely this tree was on the development site, and should have been included in the survey.

 

Its not on the site, its next door.

[felixthelogchopper]

Its not on the site, its next door.

 

But it is reasonably foreseeable that the roots would encroach on the development site itself, surely?

[skyhuck]

But it is reasonably foreseeable that the roots would encroach on the development site itself, surely?

 

Yes of cause, but its not on the site, I was just clarifying things

[felixthelogchopper]

Yes of cause, but its not on the site, I was just clarifying things

 

My point is that when given the job of surveying the site, the surveyor (knowing that the survey is being done for development purposes) should take into account any trees which could be easily foreseen as encroaching on the survey site, whether above or below ground, as they would be likely to be affected by the works on site.

[Bren.]

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.

[Alan Webster]

Although the situation might not seem fair just as long as the developer has complied with the planning conditions and the excavation was required to carry out his approved plans the TPO is irrelevant.

The roots were encroaching into the developers site and he has abated the nuisance (also an exemption to the TPO it can be argued). He could in theory make a claim against the OP to reimburse his costs in doing this.

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

If the tree is now unstable due to the excavation costs to remove it can possibly be recovered from the developer.

The roots that were removed were technically stolen if not offered back to the OP, but what is the worth of a few roots. I doubt that the police would be interested in charging the developer with theft. (think of the CPS tests).

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

Civil law is decided at court and is not cut and dried as it is decided on the judges interpretation of case law.

[Gary Prentice]

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.

 

I'm struggling with an answer due to lack of knowledge. Does a detailed planning application actually include details of service runs and finished site levels?

 

Works necessary to implement planning consent are straightforward enough, if a tree is in the middle of the proposed kitchen, its obvious that it has to go. If a service run encroached on an on-site tree and no condition, as to the methodology of its installation, had been included in the planning consent, then the loss/damage to that tree would be on the planners doorstep.

 

Once the tree is off-site I still believe its a different ball game.Was the developer meant to check for TPOs outside his land. No Why not? I don't see any absolution here. Why would the developer no longer have a responsibility of a duty of care?

 

I think that the civil law must take precedence. I don't think that the planning department could legally give permission to damage a third parties property. This is working under the assumption that the trenching and grade changes will have sufficient impact as to necessitate removal (which they appear to do)

 

Lets imagine that the planning consent has reduced the trees status, ie the developer can do what is necessary to implement the consent. The roots are now simply encroaching with no TPO protection. How far does the common law allow you to go? You can't legally remove sufficient roots of your neighbours tree as to make it unstable or to kill it. This is why the high hedges legislation is written as it is. The formulae used to decide on the height may be over-ridden so as to prevent the loss of the hedge and hence the owners retention of his property, although at a lower level.

 

I think, due to the LA's wording of the condition to survey on site trees only, this can only go forward as a civil matter now. Attempting to pursue either the authority or developer under the T&C act would be delving into muddy waters. The claim now needs to be on a civil level, dis-regarding the implied or given consents etc.

 

There may be arguments as to the pre-development condition of the tree but by and large I think that's irrelevant. The owner had an option to reduce the tree to a lower level to compensate for the decay present. This option has now largely been removed due to the root loss. Foliar loss now would only hammer its energy reserves and ability to produce energy. So, based on the pictures, removal has become the only option, ergo the developer has deprived the owner of his tree/property by his actions, a civil claim.

[Craig Johnson]

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.

 

what if it had been a 100ft cedar planted by the duke of wellington (for example) 2M from the boundary with a TPO on, and you missed it off the survey, then the developer does a grade change ' sorry its on our plan'

[daltontrees]

what if it had been a 100ft cedar planted by the duke of wellington (for example) 2M from the boundary with a TPO on, and you missed it off the survey, then the developer does a grade change ' sorry its on our plan'

 

I wasn't condoning the omission of off-site trees. The BS is pretty clear that these should be recorded ina survey. But we are all assuming the surveyor was instructed, on behalf of the developer, and following stipulations from Planning, to do a BS5837 survey. All I was suggesting was that if Plannign didn't stipulate it and therefore the developer didn't instruct it, the surveyor wouldn't and SHOULDN'T record off-site trees.

 

I did a survey for a developer a few weeks ago. I gave a fixed price for the estimated number of trees on the site but when my instruction was confirmed it was to do a 5837 survey. So instead of recording 120 trees I recorded 156 trees because the specification implied off-site trees too. Thankfully the client was understanding enough to increase my fee pro rata. Otherwise I would have done half a day's survey work for nothing.