TPO's and compensation

[Adam M]

Hi, I'm unclear on how compensation in respect of refusals/conditions works.

 

Say a tree owner applies to fell a tree and they have proved that it's dangerous by providing a credible report and the LA have refused consent, and the tree then fails and causes damage, I would imagine that the LA would be liable for compensation.

 

If the tree owner applied to fell the tree with no report stating it was dangerous, perhaps for shading, overbearing, random reason and it was refused, then it were to fail, would the LA be liable for compensation?

 

Likewise, if a LA were to validate an app that alleged the tree dangerous or causing damage but with no supporting evidence, and the tree were to fail, would this then allow compensation?

 

I can appreciate why they would be liable if evidence was presented and they refused but can detect that applications could be made purely to trigger a refusal and subsequent year of indemnity.

 

I've looked at the regs and it would seem that compensation is relevant no matter what the circumstances. Does anyone have any experience in compensation?

[Adam M]

Hold on, I think I've answered my own question:

 

compensation is not payable for any:

 

loss or damage which was:

reasonably foreseeable by that person; and

attributable to that person’s failure to take reasonable steps to avert the loss or damage or mitigate its extent;

loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused or was granted subject to conditions

;

 

So what I understand from that is that the LA are not liable should evidence not be present/the incident not being reasonably foreseeable.

[ReubenHayes]

I would assume not many cases have gone through the compensation path yet as most LA's are now savvy on how to administer and refuse applications. The act says that compensation must be made within 12 months, that it must be above the amount of £500. The closest part I can see with regards to your question is Part 6 (4), © for loss or damage which, having regard to the application and the documents and particulars accompanying it, it was not reasonably foreseeable when consent was refused or was granted subject to conditions.

 

I read that as for instance:

 

A resident puts in an application to feel due to loss of light, size or dominance etc (but fails to notice a defect). If the Council goes out and refuses the application because of light, but then also fails to notice the defect they would be held liable. The reason for this is that it is foreseeable and the reason why LA's employ professional Tree Officers. They should always give a quick inspection of the tree (not to give information or guidance to the owner) so that as the last professional on site they are happy to walk off knowing that the tree is safe and the Council will not be liable for any compensation.

[Gary Prentice]

Seems reasonable.

 

The foreseeable part, as ever, being the crux of the matter.

[daltontrees]

I would assume not many cases have gone through the compensation path yet as most LA's are now savvy on how to administer and refuse applications. The act says that compensation must be made within 12 months, that it must be above the amount of £500. The closest part I can see with regards to your question is Part 6 (4), © for loss or damage which, having regard to the application and the documents and particulars accompanying it, it was not reasonably foreseeable when consent was refused or was granted subject to conditions.

 

I read that as for instance:

 

A resident puts in an application to feel due to loss of light, size or dominance etc (but fails to notice a defect). If the Council goes out and refuses the application because of light, but then also fails to notice the defect they would be held liable. The reason for this is that it is foreseeable and the reason why LA's employ professional Tree Officers. They should always give a quick inspection of the tree (not to give information or guidance to the owner) so that as the last professional on site they are happy to walk off knowing that the tree is safe and the Council will not be liable for any compensation.

 

Funnily enough, as I was rading the scenario I was thinking, that's a good example of how the regulations are worded so that the Council is not liable. The damage was not foreseen by the applicant, and was not put forward as a justification for removal. Therefore the Council would have no need to inspect the tree, if the Council thought the tree still provided amenity for the area it would be a straight refusal without any further justification based on condition.

 

Right regulation, completely opposite outcome. The Coujcilm is not obliged to foresee that the owner would not foresee damage. I think that's fair enough, if condition is not pointed out and made the reason for proposed removal, it would eb unfair to expect a Council to do free tree surveys for every free TPO app.

 

But I could be wrong, compensation is often threatened but I've never has a live case.

[Nimby]

Funnily enough, as I was rading the scenario I was thinking, that's a good example of how the regulations are worded so that the Council is not liable. The damage was not foreseen by the applicant, and was not put forward as a justification for removal. Therefore the Council would have no need to inspect the tree, if the Council thought the tree still provided amenity for the area it would be a straight refusal without any further justification based on condition.

 

Right regulation, completely opposite outcome. The Coujcilm is not obliged to foresee that the owner would not foresee damage. I think that's fair enough, if condition is not pointed out and made the reason for proposed removal, it would eb unfair to expect a Council to do free tree surveys for every free TPO app.

 

But I could be wrong, compensation is often threatened but I've never has a live case.

 

I agree with this, when a LA Tree Officer receives an application for felling a TPO tree it is not his/her duty to make sure the tree is safe before determining the application! If there is no accompanied evidence to support the removal it is not required to carry out an inspection of the tree.

 

That said, in most cases a TO will visit and inspect the tree.

 

In modern times you might have an application dealt with by a Planning Officer that will play a straight bat, so to speak, and not validate the application without that information?.

 

All LA's are different though.

[daltontrees]

All LA's are different though.

 

I suppose so, but they are all bound by the same primary legislation and there shouldn't be that much local variation.