Chris at eden

Erm, you kind of can to an extent. That's the whole point of a higher court precedent. If your neighbours house gets subs damage and he carries out an investigation that shows, your tree roots near the damage, the soil is shrinkable, and movement is seasonal, and there are no other trees you are going to lose that one. Its enough on the balance of probabilities in my opinion. To be clear, this isn't legal advice, its tree advice. I'm not a solicitor. This chap doesn't Need legal advice at this point, he needs tree advice. If this chap calls his insurance company and tells them he is concerned they will just tell him to get a tree report and probably increase his premium. My advice at the start was get a mortgage tree report if you are concerned. It will cost somewhere between 200 and 400 quid depending on the consultant. Not exactly megabucks.

Subs is tricky no doubt. It depends how important the tree is to the owner and whether they want to spend all that money on underpinning. Underpinning is a pain as well, the residents may need to move out while its being done and then you are left with the issue of how the fact the house has been underpinned will affect its value. Let me ask you this. If you went to view a house you were thinking of buying and it had been underpinned and the tree was still in place, would you pay market value? I wouldn't, in fact I wouldn't buy it full stop. Underpinning doesn't always work and you can still get secondary settlement when it does in other areas. I would say choose your battles well and don't try to save everything, you will bankrupt the country if you do. That may not be a popular view but its a fact. As you have already done tech cert you should have the underpinning knowledge (no pun intended) for the AA courses go for it. Its a good day and you get Biddle's book thrown in which is a bonus. One final point. Mate of mine who is a TO asked a while ago about a subs claim. He had soils and mpi data that said shrinkable clay, root identification from the tree near the damage, and level monitoring that said seasonal. He was going to knock it back as there was no desiccation testing. That's not reasonable in my opinion. Remember its balance of probabilities not proof that is required. Always check the data closely. You'd be surprised how often the conclusions are not supported by the findings, or trees are further away than the report states. Hope this helps,

The first one I think is probably Charlton and Charlton vs Northern Structural Services. Not aware of the second but when I did the AA subs course with Biddle I got the impression he was suggesting that you can't be done for heave as its not your tree that causes the damage, its the natural recovery of the soil. Who you gonna claim against, the rain! I asked him about the Charlton case and he hadn't heard of it but when I explained he seemed to think that was about the lack of proper investigations. Makes sense I suppose but I'm not entirely convinced as the issue hasn't really been tested much as PSMD's are extremely rare. What I would think you would be liable for is if you don't identify it as an issue in a mortgage report or subsidence investigation. Would a resident be liable if he felled a tree and the result was heave, I'm not sure. Doesn't seem logical, what if the tree was hazardous? what do you think Jules? for anyone reading don't take this as legal advice as this hasn't been tested adequately in my view. The Charlton case is real but the other comments are just me speculating.

Hi Nick, The AA course is good but quite technical if you don't already have a decent understanding. There will 20+ people in there as well so not that interactive. May not be a good choice for your first attempt. The CAS course isn't a subsidence course, its a mortgage report writing course. I've done that also. There is a difference. Subs course will be about trying to determine the cause of existing damage. A mortgage course is about trying to predict whether it will happen. Subs investigation is based on assessing accurate data such as soils analysis and trial holes. Mortgage is based on assumed values like geological surveys maps to determine soil type, and NHBC guidance to determine foundation depth based on the age of the building. You will never be asked to do level monitoring for a mortgage report and I doubt you could win a subs case by using geo survey maps. Does that make sense? I have done subs investigations as an LA TO in the past and I now do mortgage reports and although some of the info overlaps they are not the same thing. If you want to do subs investigation do a subs course. Tree life do a one day subs workshop. I haven't done this but I did my tech cert and level 6 diploma with them and you cover subs in those and that was excellent. I also did tree life's mortgage course and I would highly recommend that also if you were looking at doing mortgage reports. An excellent workshop. You can't skimp on courses with things this technical. As you can see I have already done two mortgage courses and with info gained from both I am very confident in undertaking these reports but I will still do the Myerscough one at some point. What arb qualifications have you already done and where are you based?

Hi Jon, This is completely unrelated to this thread so apologies to all but your in box is full so I can't respond to your pm. If you sort it and let me know I will respond to your question. Cheers,

If only it worked like that. The foundations would have been built in accordance with NHBC and building regs from 30years ago. These have changed since and now recommend deeper. So no you can't get away with saying that. Here is the kicker though. Say your neighbour built a really naf conservatory with 100mm foundations. As these are exempt from building regs he could do that. Its his right to build with rubbish foundations if he wishes as long as not covered by building regs. If your tree roots then caused damage you would be liable. Its unlawful to allow anything to escape your boundary and cause damage. This is an established precedent that's been tested many times dating back to Rylands vs Fletcher 1868. This was about flooded mines but the principles are the same which has been accepted in dozens of root damage claims. May not seem fair but those are the facts.

Yes I have. What would you like to know.

That's the one.

There was a case last year i think, the title escapes me so sorry about that. the defendent said the same. How can i be expected to know that trees cause damage to buildings. The barrister clocked that she was reading the guardian i think and asked if she read it all the time. She said yes. He went through the archives and found that there had been something like 40 or 50 articles in that paper over the last couple of years which related to tree related subsidence. She lost the case based on that. Not that you should know about the mechanics of tree related subs but that you should at least be aware that it can happen. How many clients ask you to look at the tree as they are worried that the roots will cause damage. This post was started by a laymen who was obviously aware of it. Mortgage reports are a dark art and shouldn't be approached without appropriate training but i love doing them. They are my favorite type of report to do. Its a shame that all the subs investigations are locked out by the bigger companies as they are also good and in some ways easier than the damage prediction stuff carried out for mortgage approval.

The current NHBC chapter 4.2 which makes provision for foundations near trees is dated 2010. Older versions make different recommendations for foundation depth, water demand, zone of influence, etc. Therefore a building that is 30 years old would probably not have foundations to the current spec. If the guidance they had in those days was acceptable it would not have been changed. You could assume that the builders went overboard with the foundation spec 30 years ago as a belt and braces type approach but in reality this wouldn't happen. Concrete is expensive so builders will usually install foundations to the minimum dept to meet NHBC and building regs and to be fair you can't blame them. If the experts say this is ok then why not.

Now this is pedantic but its important so i'll say it anyway. Cases have been won and lost on appeal by the inappropriate use of the word 'proven' in this type of case. This type of case takes place in the civil area so there is no burden of proof as with criminal law. i.e. beyond resonable doubt. Civil litigation is based on the balance of probabilities. i.e. that there is more chance than not. for example, if there is a 51% or indeed a 50.01% chance that the damage was caused by the tree that is enough to win. This wouldn't come close in a criminal case such as TPO prosecution. Its a point worth remembering when advising clients.

All good comments Jules as always and I agree 99%. One small comment though. I think it was the Delaware mansions case down in London where they under pinned the whole building and not just the bit that was damaged. Reason was to prevent a continuing nuisance and proactively prevent future damage before it had occurred. It was way over the top but I think they won full costs on appeal. Spot on with the comment about foreseeable, I can't quite believe people still try to say they didn't know the trees could damage structures as a defence. Really?

This is an interesting point. I don't personally think the council can enforce a tpo on something that is clearly a hedge. But can you apply HH legislation to any row of evergreen trees? for example, an avenue of Douglas fir with connecting canopies. The wording is a row of two or more evergreen trees or shrubs as far as I am aware. What you think Jules?

The council enforcement officer wouldn't take this on as you have to exhaust every other avenue before getting them involved. You would basically be saying I can't come to an agreement with myself therefore can you mediate.

Hi, In theory you could be held liable for any damage caused by your tree to the neighbours property. I do subsidence prediction reports for mortgage approval as part of my business so I will clear up some of the other points already raised. The roots will pass way past the drip line and possibly up to 3x the tree height in extreme cases. As woodyguy said at least 30m but this isn't that relevant. What you need to consider is zone of influence, how far away your tree could be from a building and still extract enough moisture to cause subsidence. In the case of your tree you may be looking at around 17-18m according to NHBC guidance. So you are within the zone of influence for both yours and the neighbours property. 30 years old is not a modern building and may not have foundations to the depth of what is currently recommended by NHBC. So don't count on this. Granted probably deeper than a Victorian house, unless it has a cellar of course. You also need to look at soil type as only certain soils are shrinkable and prone to subsidence from trees. E.g. London clay is highly shrinkable, while Kidderminster sandstone isn't. These are types of bedrock and there are many others plus you also have to consider superficial deposits that could also be shrinkable. If you are really that worried you could always get tree report to assess the likelihood. Hope this helps,

High hedges if enforced on a row of evergreen trees would definitely supersede a TPO. The implementation of a high hedge notice in accordance with the ASB act would be a statutory requirement and that is a definite TPO exception/exemption. In England that is, not sure about north of the border. Are you still on the 2008 regs for TpO's?

I personally think this is straight forward. You submit an application to fell the hedge based on the fact it is not a tree. If refused appeal to the pins. The inspector wont dodge making a decision on this as he/she will have to consider the statement of reasons made by the applicant and the planning TO's response.

I don't think you would get too far with that one mate. The claims against the council which were prevented by article 5's were damages not maintenance. For example, if the council refused an application to fell a tree because it was damaging a wall the applicant could sue them for the cost of repair. The old a5 would effectively protect the council from this but as you say they have gone. I don't think you could apply this to maintenance though.

With regards to the other points you made. You need a tree survey and impact assessment irrespective of whether the trees are tpo'd. Trees are a material consideration and councils have a duty to protect them in the face of development. With regard to the planning app there are five elements you will need to provide information on as standard. Access, layout, scale, appearance, and landscape. The tree survey ties in with the latter so there shouldn't be any getting away with it. I wouldn't rely on the council using the word hedge in a consent as a suitable defence if you fell without permission. For one that wording probably came directly from the application and they just repeat it in the consent. TPO contravention is a criminal offence so you get a criminal record as well as a fine worst case scenario. Being in the criminal arena the magistrate would also look at mitigating and aggravating factors. The word hedge may well be a mitigating factor but the fact that the tree officer has been out and told you it is protected will be an aggravating factor and will most likely out weigh the word hedge. Your best option is to apply to fell as you do not believe it is worthy of a tpo due to it being a hedge if in fact it is. It may be worth getting something in writing from a tree professional to support the app. If it is refused you can appeal to the planning inspectorate. You would then get a definitive answer.

Photos would be helpful. Look at it objectively and think how you would describe it. The wording in the guidance to describe a tree is 'anything that you would normally consider to be a tree'. If it looks like a row of small trees they can probably get away with it. If its a neatly trimmed hedge with right angle corners then probably not.

I have the 308 estate with the 110hdi engine. Really good car with a huge boot and you can get with 7 seats. Does between 500 and 600 miles on a tank of fuel. 70 quid to fill from bone dry.

Read section 23 of the act carefully and run your thoughts by legal and remember the council are not the duty holder, the tree owner is. If the neighbour has an issue with the tree next door they could hire a consultant to inspect the tree themselves and get a solicitor to write and put them on notice if there is a problem identified by the arb consultant. As soon as you go and inspect you become duty holder at least in part. Consider also, how will you inspect properly without access. If you work in planning you may have right of access but these powers of access don't go down well with residents and you may end up calling the police so bit of a can of worms really. From the sound of things they haven't actually said there is anything wrong with the tree. Big is not necessarily dangerous so I think you would need more to go on. If they were to say the tree is a dead 80ft poplar with honey fungus at the base and it was stood next to a school playground that would be different but in reality, the powers are still discretionary and the duty holder is the tree owner. But in that latter instance it would be reasonable to look into the issue and unreasonable to not. With the case you have is it reasonable to expect the council to inspect a private tree when there are no real concerns? is that a good use of public funds? if yes then inspect but if not don't. As I said previously though always run these things through legal as they are the experts and different LA's will take a different view. These are just my views and experiences and should not be considered as expert legal advice but I hope this helps.

Just got rid of a freelander td4, good car but expensive to run as a family car. The petrol is under powered, unreliable, and very expensive to run from what I am told. The crv is supposed to have one of the best diesel engines around from what I have read. As previous posts have said, don't buy a modern diesel to drive short distances around town as you will get problems with the dpf. I have a 58 plate diesel 308sw with a dpf but I drive on the motorway several times a week so no probes at all and i get 600 miles out of a tank.

Yeah. Its a ridiculous bit of legislation which is usually ignored by the person it is served on. The LA then takes on the liability if they don't do the works. The powers are discretionary so if you can avoid it that isn't a bad idea. There are different requirements in each of the sub sections as well. For example, s23(1) requires the danger to be imminent yet others don't seem to. What is the exact situation? You should also run everything through legal before you send out.