Works on TPO tree

[Gary Prentice]

10 bears,

 

IIRC, Giles Biddle said at a seminar that one case of heave he was aware of, was still ongoing after 25 years.

[FatherJack]

My opinion....................

Do not rely on your insurance company or any of their 'experts'. Their objectives may (will) not be aligned with yours.

I would suggest that you get your own independent advice (arboricultural, engineering and legal, etc.). I know that it will cost money. But it's your home, which is presently being blighted by inaction by your insurers and the local authority.

[kevinjohnsonmbe]

Slightly at a tangent, and hoping the OP doesn't mind (it may be relevant / useful later?)

 

A question for 10 Bears (and other esteemed boffins!)

 

Hi 10 Bears,

 

reading with interest a part of one of your detailed responses got me to thinking.

 

Your comment:

 

"Legally standing, should you prune the roots back to your boundary thereby destabilising the tree, and this leads to a catastrophic failure of the tree at some point in the future, you would potentially be liable. There would of course have to be a connecting series of events ie the roots are severed, storm winds at the exact angle, passing motorist at the precise time of tree fall etc. however, if the tree failure could be attributed to the loss of the roots - then yes, the fault for this unfortunate event would lie at your door. "

 

I'd take that as the presumed wisdom and a fairly well trodden path but it made me think - what if all of the above does happen, BUT, by exercising their right to abate the nuisance (severing the roots) the home owner informs the LA of the action they have undertaken AND informs the council that the actions they have taken may destabilise the tree.

 

Wouldn't it be the case then that the tree owner would be responsible for any additional safety inspections or remedial works mindful that the tree has potentially been compromised?

 

It seems "odd" that by exercising a right to abate a nuisance that liability for structural degradation would be transferred to the aggrieved party?

[Gary Prentice]

I think the thought is more that the person doing the cutting has been negligent and a failure due to their actions was foreseeable.

 

I had a light structure damage- a drive, due to a TPO'd tree. The application was along the lines of the exercising of common law rights to abate the nuisance would be such that stability became questionable. It was refused, I was told unofficially due to no proof that an alternative engineering option was impossible or disproportionate in cost.

 

That went to appeal and become one of my rare victories.

 

Getting back to your question Kevin, I'm not sure that you can cut roots then expect the owner to have suffer the cost of inspection or other remedial action. I assume that it is all about reasonableness.

 

In the opening posters position, I don't think anyone has pointed out the option of a County Court action to force the LA to prevent their roots encroaching and causing damage. It's an admitted actionable nuisance, the authority have admitted liability for subsidence historically so don't have much in the way of a defence. They may propose a root-barrier as an alternative solution but if the tree is only 9m from the property, there doesn't sound to be much room for installation.

[kevinjohnsonmbe]

 

Getting back to your question Kevin, I'm not sure that you can cut roots then expect the owner to have suffer the cost of inspection or other remedial action. I assume that it is all about reasonableness.

 

.

 

 

That's what's troubling me Gary.

 

Person A is "entitled" not to be encroached or suffer harm from person B, but in abating that encroachment person A becomes partially liable for person B's property?

 

Just doesn't seem to sit right??

[Gary Prentice]

That's what's troubling me Gary.

 

Person A is "entitled" not to be encroached or suffer harm from person B, but in abating that encroachment person A becomes partially liable for person B's property?

 

Just doesn't seem to sit right??

 

Lots of legal things don't. Much of the law seems to boil down to what is reasonable.

 

We had a differing of opinions, the TO and myself, about the situation I mentioned in my last post. I think that the TO actually proposed that by appealing a precedent could be set for the authority to look to in future similar scenarios. Unfortunately, the inspector didn't attempt to address the legalities of the position - maybe rightly so. Sometimes there doesn't appear to be definitive answers, so maybe each and every situation should be judged on its own merits. Don't ask me - I'm an arboriculturalist not a barrister.

 

Might be worth posting this on UKTC for (hopefully) Dr Mynor!

[10 Bears]

10 bears,

 

IIRC, Giles Biddle said at a seminar that one case of heave he was aware of, was still ongoing after 25 years.

 

That is staggering really!

[Gary Prentice]

That is staggering really!

 

There may be a reference in his book. If there is I'll scan, copy or take a pic.

[Nimby]

Although TPO's are not designed for council trees there is no reason why they cannot be protected by one. The tree could have been under threat from local residents for example.

 

Additionally, if your council is split between district and county it is likely that the county would manage the tree, and district would administer TPO's. So the owner would be applying to a different authority to do works. Highways departments are not always that tree friendly as they see them as a drain on resources with the damage they cause to footways. This can sometimes force districts into a position where they feel they have to protect the trees.

 

I arranged a training session a few years ago for a highways department at a council I worked for as TO. It was Dave Dowson delivering engineering solutions for footway repair. Real top level training. No one turned up from the highways management team, they were not interested, all they wanted to do was fell the trees. Its easier. Not saying all authorities are like this but some certainly are. Hence, highway trees get TPO'd

 

Cheers Chris, as a TO myself I know all of this. The question was to the OP, is he sure that there is a TPO in place? and what was the reason for it being served? i.e, is it related to the subsidence issue.

 

Interesting thread though.

[10 Bears]

That's what's troubling me Gary.

 

Person A is "entitled" not to be encroached or suffer harm from person B, but in abating that encroachment person A becomes partially liable for person B's property?

 

Just doesn't seem to sit right??

 

Hello Kevin,

 

Sorry, I missed your earlier question about this as I just skimmed over the replies. I notice you had an exchange with Gary which as ever, was also full of useful information so in part at least, I hope you got the answer you were looking for.

 

I totally understand your view as you have written above - yes it just doesn't seem to sit right, so herein comes the fallback position, it is not entirely clear about what the outcome of a situation like this would be if it was tried in court. This is simply why each case is judged in individual merit, circumstances and the benefits of prior judgements in earlier cases. In short, it is up to the judiciary to weigh up the individual significance of the different parts of the case and come to a unique, but informed, decision.

 

In your example person A does exercise their rights to remove the encroachment, but as Gary describes, the actions need to be that of a 'reasonable man' and therefore, not affect the rights of the tree owner to retain their tree in its current location with an upright habit! This is even the case where there is an actionable nuisance. Again the nuisance can of course be abated, but if this goes to the point that there is unreasonable suffering or loss on the side of person B, then there is cause for recompense. What that would entail again would be down to the judgement on the individual merits of the case.

 

With regard to the liability to A because B's tree failed, another element in the story would be to establish the intent of A in the process of removing the roots, ie did A intend to make the tree unstable as he wanted it to fail/be removed? If that could be proved, and its surprising what people admit to for their motivations, then yes liability would be passed. There is also another tenet to consider here, simply that of 'knowledge'. What I mean is, it is no legal defence for A to say, 'Sorry I did not know that if I removed the roots from the tree that it would fall over'. Ignorance is no defence in law.

 

The basis that you can abate nuisance back to the boundary is from the judgement of Lemon vs Web (1894), and I believe the principle issues of person A being responsible for subsequent damages caused by person B's tree were judged in both Loftus-Brigham and Another v London Borough of Ealing (2003) and Holtby v Brigham and Cowan (2000), where the tests of proportional liability or in legal terms, the "principle of apportionment between tortfeasors", was applied in both a tree and non-tree related case. Essentially, these recent cases established the principle that if person A takes a particular course of action, even if this is on person B's tree, then it can follow that they could be found to be proportionally liable for any negative outcomes.

 

So, I hope that helps clear up a few points for you but let me know if you have any queries.