A hypothetical question.

[Gary Prentice]

Thanks Jon, when I get time I'll try to search that.

[Chris at eden]

It has happened before and gone to court - Sevenoaks. A surveyed tree fell and killed someone. The HA has the right but not the duty, if I remember correctly. The responsibility lies with the tree owner (but I'm not sure in that case what happened to the tree owner - the issue focused on whether the HA was responsible, and they were not).

 

Jon

 

 

The powers that the council have to serve either a highways or LGMP notice are discretionary and in my experience (working as a tree officer) they will try to avoid it. The duty of care sits with the tree owner but once the council start serving notices they cannot simply ignore it if the owner doesn't respond. Guidance I always had from LG solicitors was that there would then be a potential for liability or at least criticism. That's not to say that the tree owner is off the hook though.

[Gary Prentice]

So damned if they do and damned if they don't.

 

I suspect that a Judge hearing tales of poverty by the tree owner on one hand and looking at the resources of the LA may not have too many problems in reaching a decision. I assume that if the owner really can't pay, a charge on the property could be made.

[Marc Lewis]

We have in the past applied to carry out work on what we believed to be a dangerous tree (tree had tpo) and the tree officer refusing the application as they deemed it not as dangerous as we. Anyhow, tree fails several months later (no one hurt thank goodness). In these cases, if someone or something had been damaged, the council are not accountable even though they have refused permission to make the tree safe. So I am sure they would not be responsible in your hypothetical case Gary.

[Marc Lewis]

Hi

 

http://www.legislation.gov.uk/uksi/2012/605/regulation/24/made

 

Ed

 

Cheers Ed

[AA Teccie (Paul)]

If a householder is served a notice by the highways authority to remove a tree, within a period of time (14-28 days), and fails to do so, where does the liability end?

 

As the standard threat:biggrin: is 'do it or we will', if the owner doesn't and the authority hasn't, who could be pursued in the event of damage or injury?

 

This thought came to mind after passing a dead tree I quoted to remove six weeks ago under these circumstances. My thoughts are that ultimately the owner has been negligent, but the highways authority have stated they will do the work and then haven't after the period has expired - are they also negligent in their duty?

 

Your thoughts gentlemen?

 

Hi Gary, "my thoughts"

 

The HA cannot serve a 'Sect. 154' notice saying to remove a tree only to remove a danger (or an obstruction / encroachment)...which of course may be one and the same. The liability remains with the land owner, I believe.

 

In terms of liability for damage after the notice has expired and not complied with = the landowner, but the HA could be implicated.

 

I have to clarify here that this is 'my' view and not a statement of law/fact given the potential implications of the case.

 

Cheers..

Paul

[AA Teccie (Paul)]

So damned if they do and damned if they don't.

 

I suspect that a Judge hearing tales of poverty by the tree owner on one hand and looking at the resources of the LA may not have too many problems in reaching a decision. I assume that if the owner really can't pay, a charge on the property could be made.

 

I was previously advised by the Council's solicitor, in a previous LA TO life, that you cannot levy a land-charge for this particular purpose.

[Chris at eden]

I was previously advised by the Council's solicitor, in a previous LA TO life, that you cannot levy a land-charge for this particular purpose.

 

Hi Paul

 

Not disagreeing with you but I used to work as TO at Dudley a few years ago and we did this on several occasions. Tree that was an imminent danger felled by the council's in house team. Funds recovered in one of two ways.

 

1. The tree owner paid back in instalments.

2. If option 1 not possible due to lack of funds then a charge was placed against the property to be settled on sale of said property.

 

We did this on several occasions all through legal. No problems. Funny how solicitors opinions differ.

 

I believe the TPO case in Poole a couple of years ago took the same approach. The offender could not settle the full fine (circa. £150k) and so a charge was placed on the property to be settled upon sale.

 

Another LA I worked for as TO wouldn't even look at private trees. Their view is they are private and so not our responsibility. The powers are discretionary and we do not wish to or have the resources to take on liability by looking and serving notices.

 

Cheers

[Chris at eden]

We have in the past applied to carry out work on what we believed to be a dangerous tree (tree had tpo) and the tree officer refusing the application as they deemed it not as dangerous as we. Anyhow, tree fails several months later (no one hurt thank goodness). In these cases, if someone or something had been damaged, the council are not accountable even though they have refused permission to make the tree safe. So I am sure they would not be responsible in your hypothetical case Gary.

 

Although the TPO does not transfer liability it could in that situation due to the LPA refusing consent.

 

Slightly different but there was a case a few years back where a resident submitted an application to fell a tree due to subsidence. The LPA refused the application due to a lack of supporting evidence. From what I remember they had skipped some of the investigation and just got root ID and level monitoring, maybe soils, not sure now. Anyway instead of appealing the decision the tree owner put a claim in for the damage. The council had to fund all repairs as the court felt that the upward movement on the level monitoring was enough to implicate the tree on the balance of probabilities. Probably fair, what else is likely to make buildings move up. The LA tried to rely on the fact that the applicant could appeal to the PINS but the judge was having none of it.

 

Cheers

[AA Teccie (Paul)]

Hi Paul

 

Not disagreeing with you but I used to work as TO at Dudley a few years ago and we did this on several occasions. Tree that was an imminent danger felled by the council's in house team. Funds recovered in one of two ways.

 

1. The tree owner paid back in instalments.

2. If option 1 not possible due to lack of funds then a charge was placed against the property to be settled on sale of said property.

 

We did this on several occasions all through legal. No problems. Funny how solicitors opinions differ.

 

I believe the TPO case in Poole a couple of years ago took the same approach. The offender could not settle the full fine (circa. £150k) and so a charge was placed on the property to be settled upon sale.

 

Another LA I worked for as TO wouldn't even look at private trees. Their view is they are private and so not our responsibility. The powers are discretionary and we do not wish to or have the resources to take on liability by looking and serving notices.

 

Cheers

 

Hi Chris, not a problem to disagree based on your experience which differs to mine...neither of which were 'our' decisions.

 

As with, for instance, Misc. Provisions Act, LA's do have both discretionary options AND their own 'legal depts.' interpretations which can result in differing, n dare I say inconsistent, approaches.

 

I think the Poole case is maybe different in that is was recovery of a fine rather than the Council's time n resources...perhaps.

 

Anyhow's as this fantastic forum, and fantastic forum contributors , allows us all so to do we share our experiences n knowledge n allows others to 'take or leave' it...thank you.

 

Cheers..

Paul