TPO application refusal - liability

[Swampster]

Hi Gary, I agree entirely with your point about the trees location. However I do think that regardless of this, once a potential for failure has been acknowledged then it should be dealt with or responsibility taken up somewhere.

[kevinjohnsonmbe]

Why would the date it was served matter Kevin?

 

I'd only had a quick look at Mynors (where he starts talking about dates of original orders and anticipated changes etc) didn't get any further, distracted by something more interesting...

 

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

 

Understood!

 

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

 

 

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

 

Interesting question Gary, I originally meant the organisation rather than the individual - where individuals sometimes make decisions that they may never be personally held to account for, however, it perhaps could be both the individual and the organisation.

 

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.

 

Only from what was available on social media, it was the tree owner's assertion that the council had not conducted a climbing inspection so were not in a position to make a comprehensive assessment of the application. Not having seen the (alleged) previous applications, it might be that they were inadequate to demonstrate the potential risk and justify remedial action. I'm thinking, it's the tree owners responsibility to demonstrate to the LA the need for remedial work so LA may not consider a climbing inspection necessary in all cases. If, however, the tree owner had shown photos of defects only visible from above (an example pic below from one of my previous jobs which was a successful TPO app) then it might be argued that that had demonstrated the need for the work.

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

 

Yes agreed,

 

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?

 

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?

 

It's a sensible approach I think. Would be nice to see those making decisions have the conviction in their own decision to put their corporate reputation and finance behind the decision they make.

 

Had a similar circumstance a while back. Landowner was concerned about potential liability from a tree. TO didn't have sufficient agreement to approve remedial work. Network rail supported perception of risk to rail network. Land owner visits again this month so TPO app may follow in the anticipation of a refusal (based on previous conversations.)

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.

 

 

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.

 

It's an option for sure - and may well result in a subsequent approval. But with the approval comes the cost of having the work done.

 

I've had a circumstance where the tree owner wants neither the liability nor the cost of the remedial work (nothing stranger than folk!) in which case, they don't really want to try too hard to get the approval, since they prefer the refusal....

 

No accounting for some people.....

 

Here's the link to BBC Cornwall news article:

 

 

I've got the post code so might have a look at any recorded previous applications.

[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....

[AA Teccie (Paul)]

IMHO, and indeed IME, subsequent to a tree failure, in part or as a whole, it is very easy to say "told you so", i.e. the benefit of hindsight, BUT was that really the case, i.e. was it foreseeable? If it was the legislation, in essence, allows for removal either via the application process or 5-day notice or immediate with imminent danger does it not?

 

When I was an LA TO we go many spurious applications claiming the tree to be dangerous, often perceived danger coz blows around excessively in the wind etc. ect. Hence the now required further evidence / arb report when alleging danger.

 

Re-compensation, I think there's a £500 threshold, i.e. has to be above that AND the damage foreseeable/proven AND the LA negligent.

 

Cheers..

Paul

[kevinjohnsonmbe]

IMHO, and indeed IME, subsequent to a tree failure, in part or as a whole, it is very easy to say "told you so", i.e. the benefit of hindsight, BUT was that really the case, i.e. was it foreseeable? If it was the legislation, in essence, allows for removal either via the application process or 5-day notice or immediate with imminent danger does it not?

 

When I was an LA TO we go many spurious applications claiming the tree to be dangerous, often perceived danger coz blows around excessively in the wind etc. ect. Hence the now required further evidence / arb report when alleging danger.

 

Re-compensation, I think there's a £500 threshold, i.e. has to be above that AND the damage foreseeable/proven AND the LA negligent.

 

Cheers..

Paul

 

I'm with you on that Paul.... Having now read the original submissions, the supporting evidence of need, in this case, appears to have been completely absent / inadequate and the onus for providing it rests with the applicant not the LA.

[Marc Lewis]

So in answer to the ops question, can the LA be held responsible/at fault,in certain circumstances?

[AA Teccie (Paul)]

So in answer to the ops question, can the LA be held responsible/at fault,in certain circumstances?

 

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

[kevinjohnsonmbe]

I think "no" in this particular case.

 

But more generally, If there had been an appropriate inspection and detail presented in the application, and the LPA still refused or restricted, and there was subsequent damage / injury - subsequent to the aspect that had been refused, then potentially yes.

[Jon Heuch]

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

 

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.

[kevinjohnsonmbe]

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.

 

That all sounds like a dose of reality in a crazy world.