TPO application refusal - liability

[Marc Lewis]

In general I would say "NO" as all the ownership / 'duty of care' responsibilities remain with the landowner / tree owner. Hence the 5-day notice situation etc.

 

However, albeit I can't immediate recall any instances of such, the LPA may, potentially, be held responsible if their actions were found to be unreasonable in certain circumstances. (Nonetheless, in the event of an accident / incident the tree owner should ensure they have suitable insurance protection in place as I think they would still be responsible in the first instance and they would then seek to recover the cost of the claim etc from the LPA.)

 

This is my opinion, not a statement of fact...please don't test it unnecessarily

 

Cheers..

Paul

 

Thanks AA, thats pretty much as i thought and what i have told customers in the past.

 

We had a case in the past, where a hotel owned a large mature ash which had advanced stages of merip and was clearly unsafe. Below was grassed area where weddings and other functions took place. It was also a cut through for school kids, so a well used area. The tree had a tpo and so we applied to take down to a monolith. The la refused, we never appealed. We applied again approx 12 months later and again we were refused. Approx 2 months after this a large bough snapped out and landed across grassed area. Only then did the la give consent for our works.

 

Could the la be held at fault in these type of circumstances?

[daltontrees]

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?

 

On te first point, I didn't mean that one would set out to prove irrecoverable statutory loss, I was trying to anticipate the situation where a claimant hadn't made the case for removing a tree on the grounds of foreseeable damage or loss. I was thinking of a raw negligence claim or a claim where the Council had refused an application and had unilaterally stated that there were no grounds for approving the application. But then, as I have already said, I can't imagine a case for negligence. If someone can, please spell out the circumstances where a Counmcil could be found liable in negligence.

 

On the second point, there might be other reasons for pursuing an appeal, but yes it seems clear enough that if an application was refused because the Council stated that it recognised the potential for damage or loss but decided to refuse becasue it value the tree more highly than the liability for damage or loss. Indeed, in such a case an appeal would probably get nowhere because an Inspector would have no locus to interfere with such a decision.

 

On the third point, yes.

[daltontrees]

No, at least from what you've posted. You applied to fell the tree because of the Meripilus. It wasn't the failure of the whole tree, and being a large limb probably wasn't caused by the Meripilus.

 

If you'd applied to remove the large limb because it had, for arguments sake, Innonotus, then maybe yes.

 

If you apply for one thing and something else happens, the something else is not as a result of the refusal. What you are claiming for has to be as a result of the refusal.

 

Of course, had the whole tree failed as a result of the Meripilus, then again that might be a yes.

 

Ed

 

You make a very important distinction, thanks. One could also add that there was no loss, so no claim. There is too I think a £500 de minimus on claims.

 

And some smarty-pants might argue the limb failed because of loss of vitality because of the Meripilus. It'd be a messy case.

[kevinjohnsonmbe]

No, at least from what you've posted. You applied to fell the tree because of the Meripilus. It wasn't the failure of the whole tree, and being a large limb probably wasn't caused by the Meripilus.

 

 

 

If you'd applied to remove the large limb because it had, for arguments sake, Innonotus, then maybe yes.

 

 

 

If you apply for one thing and something else happens, the something else is not as a result of the refusal. What you are claiming for has to be as a result of the refusal.

 

 

 

Of course, had the whole tree failed as a result of the Meripilus, then again that might be a yes.

 

 

 

Ed

 

 

That sounds an accurate summary (of the stated circumstances.)

[Marc Lewis]

Thanks for the replies. To clear a couple of things up, i meant, could the la be held at fault if someone been injured or similar. And, how is it so that the failure of the branch could not be down to merip, does it not degrade the wood in such a way? I ask fro someone who does not know.

 

Also, i am not trying to find someone to blame i.e the la, just interested in how the law applies in such circumstances.

[Marc Lewis]

Hi

 

Possibly, but only if the injury was as a result of the refusal. So if you applied to fell the whole tree because of the Meripilus but the branch failed due to Inonotus probably not.

 

Meripilusis a root decaying fungi. It is very unlikely to be found up the tree. Inonotus on the other hand is a stem and large branch decaying fungus, and very likely to be found up the tree, and is a common cause of branch failure in ash.

 

Meripilus can do a lot of root decaying before signs of it are seen in the crown. I've seen trees blown over due to loss of structural roots, but the crown is perfectly healthy. On close inspection it was evident that there were an awful lot of fibrous roots very close to the trunk. So the tree had responded to the Meripilus by growing new fibrous roots from its base. These may have, given time, grown and become structural roots, and so eventually replaced the decayed structural roots and stabilised the tree. Unfortunately time wasn't on the trees side.

 

That's for the Courts to decide.

 

Julian, it's funny you mention the £500 threshold. I'd included a reference to it along the lines you mention, ie loss must be greater than £500, but for some reason deleted it before posting. That was yesterday and now so far in the past I can't remember why.

 

 

Ed

 

Does meripilus not decay/degrade wood above ground? Thanks all

[Luckyleaf]

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.

 

 

I recently (last year) submitted an appeal against a refusal on the grounds of safety. I felt that I was justified in asking for 2 trees to be removed on a site that we manage, which the appointed TO unfortunately did not !. Ok appeals can take some time, but 10 months later the appointed inspector over turned the TO's decision and allowed the felling of the trees. The inspectors report shared my views, choosing condition of trees over amenity.....Sense sometimes prevails

[kevinjohnsonmbe]

It's a deviation from the original question, and a separate scenario, but still involving TPO and potential liability....

 

Appreciate some collective opinions / wisdom if anyone has encountered similar circumstances previously, or just opinions without previous experience.

 

Scenario:

 

- Recently new owners of a house within a group TPO area.

- No observable defects or hazards from which to base an application to fell.

- Tree was included in a fairly large group TPO March 2009.

- Tree stands almost directly on top of the soil pipe junctions for homeowner and neighbour who's soil pipe runs across homeowners plot.

- History of blocked / collapsed soil pipes due to root damage.

- Telephone and elec lines run through the canopy which will require cutting back (with the best will in the world, utility arbs are not renowned for their attention to detail considering aesthetics / crown symmetry when doing line clearance - and they don't need LA approval.)

- Application to fell was presented on the basis that it may, in hindsight, have been wiser not to include this particular tree in the group TPO because of the potential for future conflict (location, size, proximity to existing buildings, utilities above and below ground.)

- Very limited 'public amenity' due to location of tree and screening from public view.

- Homeowner was advised that application would be a long-shot since there were no defects / hazards.

- Application refused by LA with acknowledgement that it was penned in such a way as not to try and justify felling through spurious defects but rather simply on the basis that it might not be the "right tree in the right place" and that removal of this tree now might provide opportunity to increase / improve diversity and age class with additional trees in a more suitable location for a full, unhindered life cycle.

 

Couple of pictures to give some perspective.

 

It was always going to be a long shot for approval and the homeowner was advised accordingly at the outset.

 

I expect there'll be the "which came first the tree or the homeowner" brigade, and that's a fair enough question for those that feel that way. I don't fully subscribe to that view since it's always going to be human nature, wether right or wrong, to seek to alter and adjust our environment and we are where we are, I don't think even the collective will of Arbtalk could sway human nature.

 

So the question -

 

LA have refused application to fell on the basis of amenity. I don't consider that to be an unreasonable position, I suspect the homeowner may not agree and may be minded to appeal - we may part company in that case. Soil pipes later collapse due to root incursion. Homeowner incurs cost of reinstating drainage - their own and the neighbours.

 

Would there be a viable claim for costs against LA?

 

I'll start wading through the Mynors to try and get a grip but greatly appreciate any thoughts from the wise..... (humour / abuse from the not so wise is also welcome!)

[Luckyleaf]

Was the direct damage to the drains/services the main reason in the application to fell ?

[kevinjohnsonmbe]

Was the direct damage to the drains/services the main reason in the application to fell ?

 

 

It's the basis of the "concern" from the current homeowner but the historical damage pre-dates their ownership.

 

Is that Chris? Did we meet at the AAAC workshop at Kingsley Village, Fraddon??