any Tpo legal eagles about

[Topcat]

A client has a Chestnut with Bleed Canker(BC). The neighbour gets some advice about reducing the tree, 4/5 metre reduction and the consultant puts in a TPO app. The LPA officer visits see's the BC and goes and tells the owner (who knows nothing about the application) to fell the tree ASAP or he will and send her the bill. She gets a cpl of quotes to fell around £2k. Myself and another company believe the tree to be safe and agree with the neighbours guy that a reduction would make the tree safer, monitor and may need further prunning every 3/4 yrs. The tree is in full leaf, very minor dw,some bleed spots.

 

The LPA officer sends a decision notice telling the client to fell the tree and lists the symptoms of BC that would make your toes curl if it was your tree.

 

I speak to the LPA team leader explaining that 3 opinions believe this mature tree could be made safe by prunning,he's quite happy and as the tree is exempt (by the TO's letter) they can do what they want.

 

A contractor does a 25% reduction and while working a branch hits a nearby TPO'd silver birch. The contractor goes up SB and tidies break and re balance tree(very minor works)

 

The neighbour thought it was great that he did not have to pay for the job and he was getting the tree felled. He's now on the phone to the TO asking why the tree has not been felled. I should point out that my client asked for the TPO's some years back when new houses were planned and wants to retain the HC at all cost.

 

After a quick site visit the TO is not a happy bunny and puts pen to paper. Client gets a letter saying that the Chestnut is now more dangerous than it was and must be made safe and removed.The SB should not have been touched and he wanted to know the contractors involved and encloses a few par's on TPO legs and £20k fine etc.The client who I guess to be in her late 60's rings me in panic..court... £20k fine etc.

 

After speaking with peer's throughout the Arb ind,the DETR (blue book people) and local planning officers, the following became apparent.

 

The LPA should have realised that the tree was exempt, notified the applicant

and should not purport to "decide" the application. (Blue book 6.44). Care of duty would have been carried out because they notified the exemption to the applicant and it would be a civil matter.

 

The LPA could have used Misc artilcle to remove the tree if the owners did not act to make the tree safe.However the works now done make the tree safer.

 

The LPA should not have issued any decision, they have substantially altered the work applied for (blue book 6.50).

 

So did the council, by deciding the felling also decide the tree was exempt and was the prunning to make safe (less work) exempt also?

 

If the client is now advised that the tree is safe (subject to further monitoring,etc,) and having met her legal responsibility,do the council still have the right to fell the tree and charge her.? They believe it should be further pruned to fence height so no limbs or crown could fall into neighbours garden.

 

Do the council go around felling every HC in their area that shows very minor infections of BC with out monitoring.

 

And then there is the SB that had a small amout of work to correct an accident while making safe the HC. Will the council proceed to court?

 

Lots of interesting points have been raised today but apart from the mal-admin of the application by the LPA, no one including solicitors could give any clear answers, apart from the obvious, do a deal and fell the tree kind. It would appear that no one knows of such a case precident and even the guys at DETR (blue book) are very interested because they are at this time re writing it.

 

Any views.

[Khriss]

I'm lost now.................is the TO a bit of a twart?

 

K

 

Bleeding Canker will not be / or may not be the only issue of risk with a tree, no tree just 'suddenly fell over' whilst you looked at it and saw it had BC. I would not have made a spot judgement like that.

Edited August 11, 2009 by Khriss

[Andy Collins]

IMO common sense should prevail. If the case went to court re silver birch, and it was proven that only the necessary work to sort out the damage that was done, that should be ok, unless the tree was seriously damaged and rectifying this was detrimental to the tree.

Re Horse Chestnut, the TPO should be removed as it is now diseased, the works carried out to "give it a chance", and as such the contractor has basically accepted responsibility for its future safety. Personally I wouldnt wish to accept that responsibilty, and may have taken the opportunity to fell/replace the tree within tpo guidelines. But this isnt a legal point of view, just my humble opinion.

[gibbon]

IMO I would say if the TO gave notification in writing the tre tree was ddd then he has no grounds to prosecute.

 

On the other hand I have never recommended pruning a bleeding Chestnut free of other defects . I would assume that pruning may hasten the grip of the canker irespective of type of BC.

 

Interested to hear Tony S's take on this as he seems clued up on TPO law and is a TO

[Paul Barton]

I don't understand why the TO is getting all antsy about it? Surely he/she should have advised the owner that the tree was exempt (or revoked the order) and then left it up to the owner to carry out their duty of care as they see fit? The LPA can't be liable for damages incurred if they do this can they?

 

Very odd.

[Paul Barton]

and as such the contractor has basically accepted responsibility for its future safety. Personally I wouldnt wish to accept that responsibilty, and may have taken the opportunity to fell/replace the tree within tpo guidelines. But this isnt a legal point of view, just my humble opinion.

 

I don't see how the contractor has accepted responsibility? Surely he has done what he has been instructed by the client - unless he has written a supporting report as well?

[Khriss]

This wouldnt hapn to be Wakefield area by any chance , Eric Waterworth TO ?

 

K

[Topcat]

Andy...common sense should prevail..I wish. This is the unusal because people are usually over the moon to remove a mature tree,in this case the client wants it kept.

 

Gibbon.... Forest research recs say the same, don't prune unless there is a need for safety, The TO says he'll fell it, what do you do, Prune to remove weight from lats and to reduce wind sail effect ?

[Topcat]

I don't understand why the TO is getting all antsy about it? Surely he/she should have advised the owner that the tree was exempt (or revoked the order) and then left it up to the owner to carry out their duty of care as they see fit? The LPA can't be liable for damages incurred if they do this can they?

 

Very odd.

 

Five hrs on the phone and you sum it up in 5 mins on here. It appears that some contractors know a little more than what others would credit them for.

[Paul Barton]

Ha - cheers fella! I recently started working on a TPO review for a LPA so my interest in this subject has gone up. Sounds like a right ball-ache!