TPO application refusal - liability

[kevinjohnsonmbe]

Following a recent SW news article after tree failure, where the tree owner has a record of requests for TPO approval being refused, then the tree fails causing damage that may not have occurred had TPO approval and remedial work been undertaken, if I understand correctly (depending upon the date of the original order), some element of liability may be assumed by LA.

 

Not having seen the original TPO, nor the quality/standard of the previous application(s) so not able to comment on how realistic the request might be.

 

It got me thinking, where a tree owner and a LA are unable to agree the nature, requirement and or extent of potential work to a TPO tree (not an uncommon situation), what's to stop a tree owner submitting annual TPO work requests (in the anticipation that refusal will follow) in an attempt to transfer liability for potential future damage to the LA?

 

I don't think it would be unfair or inaccurate to suggest tree owners and TOs can, and often do, have opposing opinions of tree risk v worth, I'd be interested to know if the views remained so far apart if the person empowered to make the decision was also liable for the financial / moral consequences of what might (by the tree owner) be considered as an overly conservative approach (mindful that they may not suffer any consequence of such a decision?)

[Swampster]

For what it's worth, when we have applied for permission to do work in order to mitigate risk and been refused, we have asked for written acceptance of liability (on behalf of the tree owner).

If this isn't forthcoming, permission normally is. This is not a tool for leverage but a mechanism employed when there is genuine risk present. If the refusal stands then the legacy lies with the client /tree owner and LA to negotiate.

We've done our bit, not shirking responsibility but unless your being paid specifically to pursue these things why invest your time?

[Gray git]

I'm going to follow this and opinions on it with interest as I have had a few refused recently for what in my opinion are necessary works on safety grounds but in the opinion of the council planning representative who hold only basic at best tree hazard qualifications are unnecessary.

[Swampster]

....an example: (old skool) 20% reduction, lift and thin refused in favour of a 5% reduction (reduce growth points by no more than 1m to leave lateral canopy spread if 7m) and nothing else.

This was a previously hammered birch, with 5m regrowth from decayed previous pruning/topping (hacking) points.

[Swampster]

..in a private, domestic garden. Family with children in occupancy.

[Luckyleaf]

A comprehensive application followed by LA refusal..........wouldn't you rather go straight to PINS for appeal, instead of multiple applications, you will usually find their inspectors are highly experienced and qualified.

[Chris at eden]

Why would the date it was served matter Kevin?

 

The 2012 regs brought all existing TPOs under the same set of rules and dispensed with A5 certificates. So liable is liable.

 

They would only be liable if their decision is wrong though I would think.

[Gary Prentice]

Following a recent SW news article after tree failure, where the tree owner has a record of requests for TPO approval being refused, then the tree fails causing damage that may not have occurred had TPO approval and remedial work been undertaken, if I understand correctly (depending upon the date of the original order), some element of liability may be assumed by LA.

 

Not having seen the original TPO, nor the quality/standard of the previous application(s) so not able to comment on how realistic the request might be.

 

It got me thinking, where a tree owner and a LA are unable to agree the nature, requirement and or extent of potential work to a TPO tree (not an uncommon situation), what's to stop a tree owner submitting annual TPO work requests (in the anticipation that refusal will follow) in an attempt to transfer liability for potential future damage to the LA?

 

I don't think it would be unfair or inaccurate to suggest tree owners and TOs can, and often do, have opposing opinions of tree risk v worth, I'd be interested to know if the views remained so far apart if the person empowered to make the decision was also liable for the financial / moral consequences of what might (by the tree owner) be considered as an overly conservative approach (mindful that they may not suffer any consequence of such a decision?)

 

Are you asking if the individual officer assumes the liability or the authority as an organization?

 

The compensation component is fairly straight forward - more so now that article 5 certificates are no more. As I understand it compensation is claimable where a refusal of consent leads to an foreseeable economic loss.

 

I don't think the LA would become liable unless it was actually negligent, refusing the application for reasons that were so outside of generally accepted practice that they were off the reservation. So much involving trees is down to personal opinion, that there is no clear-cut black or white.

 

At the end of the day, isn't it only the judiciary who decide, for each particular incident, what the actual law is?

 

 

For the poster who questions the LA officers knowledge/experience/qualifications. In the event of an incident, the authority would be questioned about that officers ability to make the decision - would they be deemed negligent by employing that person in that role?

[Gary Prentice]

....an example: (old skool) 20% reduction, lift and thin refused in favour of a 5% reduction (reduce growth points by no more than 1m to leave lateral canopy spread if 7m) and nothing else.

This was a previously hammered birch, with 5m regrowth from decayed previous pruning/topping (hacking) points.

 

..in a private, domestic garden. Family with children in occupancy.

 

Not being argumentative, but that's a very low level of occupation compared with a roadside tree, for example. Quantifying the risk may allow a 'more dangerous' tree to remain in those circumstances.

[Gary Prentice]

I'm going to follow this and opinions on it with interest as I have had a few refused recently for what in my opinion are necessary works on safety grounds but in the opinion of the council planning representative who hold only basic at best tree hazard qualifications are unnecessary.

 

I've served a five day notice when agreement hasn't been reached with the LA and done the works.

 

This was after the appeals inspector had stated that a large limb would fail and then completely ignored it in the rest of his report. I figured that if the council were so adamant it was unnecessary, they could take me to court. But based on the written evidence of the inspector they would struggle to prove the risk wasn't imminent, immediately necessary and the minimum necessary. (and therefore exempt)

 

I'm not suggesting that you break the law necessarily, but if you feel so strongly you can force their hand.