TPO application refusal - liability

[kevinjohnsonmbe]

Just had a look at the background applications:

 

1 refusal in 2013 - woefully inadequate case presented for felling

1 refusal in 2016 - see above!

 

 

Error

 

Link comes up as "Error" but I think it does work?

 

The TO decision appears on paper to be wholly defensible, except that the tree thought otherwise shortly after the last decision was made.....

 

That's life....

 

I think the link I posted earlier (if anyone wanted to look at the previous applications) may have been a duff one.

 

If there really is anyone out there interested/sad* enough to want to look it up (I'm firmly in the second bracket) I think this may work:

 

http://planning.cornwall.gov.uk/online-applications/simpleSearchResults.do?action=firstPage

 

It's a Mar 13 (Ref. No: PA13/01846 ) and a Feb 16 (Ref. No: PA16/01454)

 

(*delete as appropriate)

 

The TO appears to have put a good deal more effort and professionalism into the assessment and decision notices than the person that submitted them....



[daltontrees]

I'm coming late to this one but I feel I have to comment anyway. The question of negligence by a Council is irrelevant to the compensation liability. If the Council makes a decision to refuse, and foreseeable damage occurs, the Council is liable for compensation whether it made the decision to refuse competently or negligently. councils can and do decided to take the risk of compensation in the interest of keeping the amenity provided by the tree.

 

If you think the refusal is negligent, appeal it. If you think the risk is imminent and serious, proceed to reduce it under exemption. But if it's just in the middle somewhere, don't appeal, don't use the exemption and don't worry about it.

[Gary Prentice]

The reality is that if an incident did occur in these circumstances a claim against the Council's insurers would be made......unless the Council was self-insuring. Evidence would need to be collected.....a few years may pass....and then the evidence would be weighed by both sides.

 

It is possible that a claim would be decided before a judge or a court ever saw anything - one side would blink and make an assessment of their chances of winning and the costs of loosing. Only where both sides think they have a reasonable chance of winning will a judge be given the chance to give a judgment.........so whilst the "law" of negligence may be clear many claims will be decided before the Courts are mobilised.

 

If someone (individually, collectively or corporately) has been negligent and can be shown to have been negligent - with aspects of duty of care etc as part of this - some liability may accrue to the Council........but if a tree surgeon made a shoddy tree work application without appropriate evidence and investigation then the tree surgeon might also be at risk of being pursued. Whether they are, or not, may depend on whether they have the appropriate insurance, qualifications and put pen to paper with a view to providing professional advice ......it all becomes very fact-dependent.

 

A far better answer than mine

[oslac]

When it comes to approving the felling of a TPO tree, the TO is often between a rock and a hard place. On the one hand, the TO wants what's best for the tree and safety but has to balance this with Amenity Value and the opinion of the LPA's elected Members (who originally approved the TPO) and also public opinion.

 

Many TO lack the ability and possibly skill to identify hazards in trees and to determine the risk of failure. Arb Consultants, who hopefully have the skill, knowledge and experience, provide reports to the TO of their expert opinion but sadly, many TO's do not trust the opinion of the Consultant.

 

I have had feedback from TO's that I have not provided sufficient evidence that the tree is hazardous in some way. To me, this is often a cop out. The TO has received a report from and expert but still wants more. This often results with the requirement for a picus or resistograph inspection. All good so far until the bill is sent to the hapless tree owner. The bill is now hitting £800-£1000 with no guarantee that the tree or tree part will be removed.

 

I can now see where the tree owner is coming from when the owners liability could be moved to the LPA on refusal of tree works. As some great once said "the tree you see this year is not the tree you saw last year" which means that the tree is constantly changing and as such, any Consultants report is only valid for a period of time. This period is normally set out within the tree report. Note to folks, limit how long your report is valid for.

 

As far as council liability is concerned, I would be surprised that the council would be liable except in cases of gross negligence (what ever that is). The council will rely on their reasons for refusal and the classic reason is . . . insufficient evidence has been provided to allow the council to determine the application (this is the cop out clause).

[Gary Prentice]

More work for pins then?

[AA Teccie (Paul)]

The council will rely on their reasons for refusal and the classic reason is . . . insufficient evidence has been provided to allow the council to determine the application (this is the cop out clause).

 

NOT suggesting speculatively by any means, given its the public purse that funds this, but there's always the option of testing it at appeal...assuming the LPA has registered and determined / refused the application of course.

 

Paul

[oslac]

NOT suggesting speculatively by any means, given its the public purse that funds this, but there's always the option of testing it at appeal...assuming the LPA has registered and determined / refused the application of course.

 

Paul

 

An appeal decision does not form a precedent which can later be relied on by another Inspector. All appeals are judged on their individual merit and many Inspectors start from the status quo. The tree exists, it is there, it is protected by a TPO and the TO has refused permission. Now what is the owner/Agent/Consultant bringing to the table which will make the Inspector reverse the decision of the LPA.

 

My view is that it is usually very difficult to persuade the Inspector to go against the decision of the council unless a lot of money is thrown at the appeal for additional surveys etc in which case, the sufficient evidence reason is, by default, no longer valid.

 

When I was a TO, I never lost an appeal and now as a consultant, I hardly ever win one . . strange but true. It seems that the Inspector, with great wisdom can see things which I am unable to see. I have had Inspectors who have stated within their reason for supporting the LPA's decision, that a back garden is a public place because a sufficient number of neighbour's can see a tree growing there. Another Inspector agreed with the TO, that a row of leylandii's were in fact a group of trees and were legitimately protected by a TPO. Not sure where any of that sits in law but the great wisdom of the Inspector is like the great wisdom of the TO . . beyond my understanding.

[Jon Heuch]

The question of negligence by a Council is irrelevant to the compensation liability. If the Council makes a decision to refuse, and foreseeable damage occurs, the Council is liable for compensation whether it made the decision to refuse competently or negligently.

If you think the refusal is negligent, appeal it. If you think the risk is imminent and serious, proceed to reduce it under exemption. But if it's just in the middle somewhere, don't appeal, don't use the exemption and don't worry about it.

 

not quite irrelevant.....a claim for statutory compensation requires establishing the foreseeable "loss or damage" in consequence of a refusal which may be easier than establishing both a duty of care and breach of it as well the foreseeability of consequences ....which may be hard.

 

However, the tree work compensation may need to spell out what that loss or damage might be and its magnitude - that is what is normally done in tree work applications where the reason for removal is property damage i.e. subsidence. A claim for negligence may not require such detail - I will leave it to a lawyer to guide on the similarities and differences between statutory and civil claims.

[daltontrees]

not quite irrelevant.....a claim for statutory compensation requires establishing the foreseeable "loss or damage" in consequence of a refusal which may be easier than establishing both a duty of care and breach of it as well the foreseeability of consequences ....which may be hard.

 

However, the tree work compensation may need to spell out what that loss or damage might be and its magnitude - that is what is normally done in tree work applications where the reason for removal is property damage i.e. subsidence. A claim for negligence may not require such detail - I will leave it to a lawyer to guide on the similarities and differences between statutory and civil claims.

 

I should have been clearer, I was only referring to statutory compensation. Civil compensation is I expect even more complex than you outlined, not least of all because the TO and the Council have no direct duty of care to the applicant or to his neighbours. I am inclined to think that the first recourse for someone thinking that a refusal was unjust, exposing him to irrecoverable losses through the statutory compensation route, would be a planning appeal. And if the injustice was perpetuated by a dismissal, the next step would be judicial review.

 

The OP's question has been asked before, namely could an applicant apply and get a refusal every year, just to be covered by the compensation rules. And the answer has to be yes as long as on each and every application the foreseeability of loss or damage is demonstrated.

 

And it all comes down to that word 'foreseeable'. The courts have clarified that it does not mean imaginable, nor does it have to mean inevitable. It is easy to find tree situations where damage is foreseeable and for that foreseeability to remain for many years without incident.

[Jon Heuch]

I am inclined to think that the first recourse for someone thinking that a refusal was unjust, exposing him to irrecoverable losses through the statutory compensation route, would be a planning appeal. And if the injustice was perpetuated by a dismissal, the next step would be judicial review.

 

So to establish that a loss is irrecoverable surely a claim would have had to be wholly or partially refused by the Council and for the Land Tribunal (aka Upper Tribunal (Lands Chamber) to also judge in that manner.......long after any window for appealing the tree work decision itself would have closed?

 

As far as I am aware there is no merit in appealing the tree work decision if you are anticipating a compensation claim? And if your appeal is successful to the point of removing the potential for loss or damage then you have no compensation claim?