any Tpo legal eagles about

[Amelanchier]

Going back to beginning, I'd summarise the following points as I see it:

 

• The application was to reduce the tree for appropriate reasons.
   
  
• An invalid decision was given to fell it - invalid because it was not in the scope of the determining powers of the LPA.
   
  
• The tree was considered exempt because the TO had issued a decision to fell - this seems to have been agreed with another LPA officer (within his/her remit?)
   
  
• Works to the silver birch should have been minimal - i.e., removing damaged branch but perhaps not 'rebalancing' (I have a dislike of that term/practice but thats not really relevant). The damage and pruning are offences. It seems unlikely that the LPA will take action - it would be more appropriate to issue a warning.
   
  
• The TO sent a letter to the owner informing them that the tree must be felled as it was more dangerous than before - presumably this did not invoke the Misc Prov and inform the owner of the LPAs powers in this respect. Of dubious validity.
   
  
• As for the liability, I would suggest that that remains with the owner. The LPA would only be liable for compensation if their actions have impeded the owner in preventing damage occuring. The owner might, if found liable for future failure, seek to retrieve costs from the contractor that advised him/her.
  

 

All in all, a right mess! Seems like a bit overreaction to a bit of bleeding canker!!

Edited August 12, 2009 by Amelanchier
making sense

[Andy Clark]

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.

 

O.k, first few points:

 

Why did the consultant submit reduction app, and not push for fell under DDD exemption in the first instance??

 

I understand that the property owner wanted to retain the tree, however whilst there remains no cure for 'BC' "Remove and re-plant" should have been the more pragmatic approach (and advised the customer as such), as opposed to submitting the owner to the continued financial constraints of 4/5 yearly pruning, of a tree that is going to inevitably die.

 

Is it really the best approach to prune (therefore cause further shock) a tree already in decline??

 

Was the consultant REALLY acting in the customers best interests??

 

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.

 

O.k, so why was the customer not aware of the app??

 

Again, any consultant worth his salt, should be acting on the best interests of his/her client, and should therefore keep them posted every step of the way.

 

Also, why was he LPA TO "discussing" felling?? Hardly a professional approach to verbally "put the frighteners" on the tree owner.

 

As the consultant made the app "for and on behalf of" the client, the LPA TO should just have responded directly to that app, and therefore dealt directly with the consultant.

 

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.

 

Decision notice?? In relation to the app for the reduction work??

 

That notice should've contained nothing more than a "yes/no" answer, solely based on (and in relation to) the current TPO status of the tree as a direct response to the corresponding app. Nothing more!

 

The LPA notice/insistence to fell the tree comes under their powers to exercise the Local Government (Miscellaneous Provisions) Act 1976, thereby exercising their right/authority to intervene in matters of concern over public health and safety.

 

In the instance of a tree, it is common practice (expected) to supply supporting evidence to substantiate their claims (i.e a tree report), HOWEVER is this evidence/report based on the condition of the tree THEN (prior to reduction) or NOW (post reduction)??

 

The LPA also has to submit a time limit (notice period), and it is usually common place for tree owners to seek an independent report during this time, and therefore appeal to the councils decision.

 

Either way, the two things are VERY different, and SHOULD NOT have been "lumped together" under the guise of a decision notice.

 

Also, why was the tree owner not already made aware of the signs/'symptoms'/outcomes of 'BC', by the consultant in the first instance??

 

Surely if he/she has carried out a professional PAID FOR tree report and made subsequent recommendations, all the aspects pertaining to 'BC' should've been submitted to the client in the report, as the basis of the decision for the resulting recommendations??

 

Possibly also even been included in the app as supporting evidence.

 

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.

 

'Do what they want' in relation to the app and resulting exemption, or in relation to the Misc Prov notice??

 

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.

 

So is it just a "snotty" letter, or is he serving official notice??

 

Again, if he's exercising Misc Prov on the basis of safety, this has to be served formally, and subsequently supported with evidence.

 

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.

 

RUBBISH!!!

 

If it went to court, it'd get laughed out again!!

 

TPO prosecution ONLY comes from the basis of lawfull/unlawful disregard for said TPO. For a prosecution to stand, the LPA would have to prove either malicious intent or acting without regard, and as the works were carried out to solely repair and alleviate accidental damage, this would be nigh on impossible!

 

If anything, the works carried out have been done so WITH regard to the TPO, and in theory, to leave the tree damaged or to fell the tree would've been acting WITHOUT regard, and IMO a good case lawyer would turn the prosecution around based on that fact alone.

 

Not only that, i'm guessing the contractor was acting under their own initiative when carrying out the repair work?

 

If so, it would be the contractor that ran the risk of prosecution, and not the tree owner. Unless of course the contractor claimed they were acting under instruction from the tree owner, but even then, this would be hard to prove, and ultimately still leave the contractor in that "You should've known better" position, which if anything would back up the standpoint of prosecuting the contractor on grounds of INTENT.

 

Either way, the tree owner shouldn't be worried!!

 

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.

 

Not entirely true as again, the TPO/Misc Prov points are being confused.

 

The first point to consider is the work applied for (reduction) in relation to the TPO status of the tree. I mean, you use the words 'tree was exempt', but exempt in relation to what??

 

Was it exempt in the point of having the reduction carried out under DDD EXEMPTION, or was the TPO LIFTED thereby allowing the tree to be felled??

 

Put it another way... consider a large broken branch within the crown of a TPO'd Oak..... this branch could be removed under DDD exemption, but that doesn't go as far as to allow the tree to be felled, now does it??

 

What the LPA should've done, is again ONLY act in correspondance to the application submitted..... either notify a decision to allow the requested reduction to be carried out under DDD exemption, OR notify that the TPO had been removed.

 

The duty of care bit, would and SHOULD only come into play in relation to alleviating the Misc Prov notice.

 

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.

 

Most of this i've already covered in other areas, but as for the 'further pruned to fence height' bit.....

 

THE LPA DO NOT HAVE A LEG TO STAND ON IN INSISTING THIS ACTION!

 

Either the tree has been made safe, or it hasn't!! PERIOD!!

 

Surely the reduction has helped reduce the possibility of branch failure, compared to the trees original condition??

 

Not only that, but if it wasn't safe in the first place, why have they not previously acted and pursued a misc prov notice?

 

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.

 

Yeah, two.....

 

1) The consultant wants shooting.

2) The LPA T.O should be sacked.

[Andy Clark]

Failing that, both should at least both go and look up the word "Professionalism" in the dictionary!

 

[Topcat]

Andy you have hit the nail on the regarding most points. Several emails went to the LPA this am outlining the same things you have plus, mentioned a judicial review should the LPA insist on felling. Within 1/2 hr a call came through and a meeting has been arranged

for tommorrow without the TO

 

One point to clarify, the consultant was working for the neighbour and it was them that

submitted the app. Hence the consultant had no further contact with his client,the LPA or my client,the tree owner.So he has add little involvement apart from a work spec to reduce and make safe.

[Andy Clark]

Andy you have hit the nail on the regarding most points. Several emails went to the LPA this am outlining the same things you have plus, mentioned a judicial review should the LPA insist on felling. Within 1/2 hr a call came through and a meeting has been arranged

for tommorrow without the TO

 

One point to clarify, the consultant was working for the neighbour and it was them that

submitted the app. Hence the consultant had no further contact with his client,the LPA or my client,the tree owner.So he has add little involvement apart from a work spec to reduce and make safe.

 

 

Judicial review's perhaps a bit harsh at this stage..... maybe further on down the line in order to pick apart the legalities concerning the maladministration of the relevant statutes, (as you say) SHOULD the LPA insist on felling..... but IMO you DEFINATELY have cause to start making a few noises with the Local Govt. Ombudsman, with regards to the manor in which the TO has acted.

 

It may also be worth a look at the NATO website Membership | National Association of Tree Officers to see if the LPA is a member, then having a word about filing a complaint with them regarding the operations of one of its members.

 

But hey, if the JR threat worked.... i'm not knocking it!

 

 

As for the consultant...... far do's.... that explains a bit more.... but i still maintain that his/her actions should been with a bit more regard to the tree owner, regardless of who's paying the bill.

[Amelanchier]

Further to your excellent post Andy (you must have had a bit more time than me!) I would add that TPOs don't need to be lifted (or revoked to use the jargon) for trees to be felled - as a land charge the TPO still stands whether there is a tree present or not. In fact, in my limited experience, its fairly uncommon to revoke an Order to allow a tree to be felled as you loose the opportunity for a replacement.

[Topcat]

just checked my emails..Enclosed please find copy of decision notice that was sent to the applicant and copied to your client. Chestnut dealt with by previous emergency decision, Silver birch,refused 2m reduction,instead 6m crown lift (never applied for) and dated 21/7...what a surprise I was stood next to the tree owner when she rang them on the 27/7 and was told it still had to be decided. EEErrrrr

[Amelanchier]

Additionally, the way the legislation works is to make certain works exempt from the need to apply for consent but that the Order remains. A dead TPO tree is still subject to the Order and is not exempt - it is the works that are. "...No such order shall apply - a) to the cutting down, uprooting..." etc.

 

 

So you can fell a dead TPO tree but there is a duty to replant and that "...the relevant tree preservation order shall apply as it applied to the original tree."

 

Just wanted to clarify that!

[Andy Clark]

Further to your excellent post Andy (you must have had a bit more time than me!) I would add that TPOs don't need to be lifted (or revoked to use the jargon) for trees to be felled - as a land charge the TPO still stands whether there is a tree present or not. In fact, in my limited experience, its fairly uncommon to revoke an Order to allow a tree to be felled as you loose the opportunity for a replacement.

 

Stop nit-picking! Pesky tree officers. lol..... Believe it or not, I was trying to keep it simple.

 

Joking aside though, agreed, they don't 'need' to be lifted in order to facilitate felling....

 

HOWEVER.. (sorry Tony, there's always one )... I do know of instances (remember the other point in this thread regarding the H&S claim and possible subsequent Misc Prov notice) whereby orders have been revoked so as to mitigate the council against H&S liability as a result of said order.

 

Basic point of pros v cons.... revoke the order or grant works and serve Article 5 cert.

 

And yes Tony, before you say it, I know article 5 certs shouldn't be used in order to avoid section 203 claims, but you know as well as I do that it happens.

 

 

[Johny Walker]

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

 

K

 

unfortunatley eric the viking is in my area bradastan what !!!!! he is :mad1:your thinking of steve waterson he,s now @ leeds or was ?

Edited August 12, 2009 by Johny Walker