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Can't cut dangerous trees due to TPO - whose liability?

(16 Posts)
filka Mon 14-Oct-19 21:15:59

I own a house which is in an area covered by a Tree Preservation Order. The house is rented out to tenants and I live abroad.

There are two extremely large ash trees at the front which absolutely tower over the house. One of these is mine, one belongs to a neighbour. These trees were there when the TPO was issued in 1965 so they were probably quite large even then. People always ask for a diagram, so it's already attached, a 3D view from Google Earth!

About 3 years back I got consent to have them both cut back (including the neighbour's tree at my expense), but when I came back to the UK to look I felt that I could barely notice the difference. I believe that the tree surgeon did as much as he was allowed to do under the TPO consent, just that in my book it wasn't nearly enough.

Back in the early 1990s there was a storm and a tree in nearly the same position as No.5 fell. It ripped out my fence and left a hole 1m deep and about 2-3m wide immediately outside my back door. So there is "previous" on trees falling nearby in bad weather.

Given the number of major storms we get these days, my big concern is that one of the trees, probably my neighbour's tree, could fall on my house, if it fell in the same direction as the 1990s one. The top of my house at the front is timber framed with flat roof. So not very substantial compared to the weight and size of a falling tree.

I'm concerned that if my tenant was sleeping in that room when the neighbour's tree fell, there would be a real risk to life. Worse, it's not the main bedroom but would probably be used by kids.

But I'm really not sure what I can do about it, given that (a) the tree doesn't belong to me and (b) the council refused to allow it to be cut to a level that I believe would minimise the risk. Generally, my local and parish councils are absolutely fixated on trees and there are a lot of TPOs around here.

Apart from hoping that the trees catch Ash dieback disease (which is in our area) what can I do? I don't even know if my neighbour who owns the tree has any insurance, or what that would cover if someone was killed. But my main issue is that the council is putting me in this position by not allowing the tree to be trimmed enough. It really wants pollarding, not crown reducing. But TBH I would prefer to take it down completely.

Thoughts? If the neighbour's tree fell, and my tenant was injured or killed, who is liable to whom, for what?

drspouse Mon 14-Oct-19 21:20:43

Our old neighbour successfully argued against a TPO which the council wanted to place on two dangerous trees but they were evergreen (so constantly clogging our gutters/causing damp) and branches were falling off over some car parking spaces (cars are expensive but their occupants are irreplaceable).
You could try this but I'm not sure "a tree fell down 20 years ago" will be enough.

RB68 Mon 14-Oct-19 21:22:06

If neighbours tree fell and a) damaged your property - he is liable but you may claim on your insurance who would then pursue his insurance or him if no insurance and b) hurt tenants again he is liable but you may claim on your insurance etc

It is complicated by the applications to maintain the trees - if the council deny you the right to prune tree to reasonable levels for safety reasons then technically they have to accept some liability and that could end up with a complex legal case. I would suggest appealing decision on maintenance of trees - I think you need a professional risk assessment of the trees and use that in the request to prune, top out or whatever you want to do. This may be something you have to do every three to 5 years, you may also need to mitigate by planting more trees....

RB68 Mon 14-Oct-19 21:23:23

I should say the point of a TPO is to preserve where possible not preserve whatever the cost.

EntirelyAnonymised Mon 14-Oct-19 21:28:22

I have two very large, mature trees with TPOs on in my garden (I own the house). I have the trees professionally maintained by a licensed and insured trees surgeon every other year. I am allowed to perform standard maintenance without permission (I’m not in a conservation area).

If you live in a conservation area you may have to apply for planning permission to touch them at all, even for a tidy up. Anything drastic will require planning permission from the council, so you’ll need to apply to the tree officer at your local office. Get a decent tree surgeon in to do a survey of the tree/s and write a report so you can submit it to the council for PP.

trilbydoll Mon 14-Oct-19 21:30:14

We looked on the local council records and found previous applications for work under TPO and used the same company as others who had successfully applied for trees to be removed. They filed the application for us. A new tree was planted in the front garden in exchange.

If you look at other applications you might get an idea of what will and won't be successful.

EntirelyAnonymised Mon 14-Oct-19 21:31:10

Have you spoken to the neighbour about their tree?

filka Tue 15-Oct-19 10:16:44

My neighbour is very difficult to deal with and is virtually in denial that it is her tree at all. For example, one time I cleared the trunk of ivy, later she complained to me that the branches of "my tree" were snagging her telephone line and would I do something about it!

Last time I only cut the branches that were overhanging my boundary because I didn't need her permission for that. It at least took a lot of weight off that side of the tree but I still feel it's dangerous.

@trilbydoll I didn't know you could search TPO applications, I'll have a look at that. I'd be very happy to plant a new 2m tree to replace one that's probably about 15m high. It wouldn't become a problem in my lifetime!

blackteaplease Tue 15-Oct-19 10:27:21

I would get an arboriculturalist to do a condition assessment of the trees and then put an application in to the LPA for works to the tree for the recommendations in the report.

You are very unlikely to be given permission to replace a mature tree with a 2m high tree.

yellowallpaper Tue 15-Oct-19 11:07:20

Both trees need to be declared on the home insurance. Contents and house. Not much else you can do.

LIZS Tue 15-Oct-19 11:15:11

I would speak to the council tree officer. Many are changing policy on ash trees due to this. Ash dieback makes them more vulnerable to wind and trees near public paths and parks are being felled to reduce risk. It may be easier now to apply to fell those with a tpo,

titchy Tue 15-Oct-19 16:57:36

Can't you just apply for planning permission to have the tree pollarded or even removed?

filka Tue 15-Oct-19 17:42:45

@LIZS Many are changing policy on ash trees due to this. ... It may be easier now to apply to fell those with a tpo,

That sounds promising!

@titchy yes I can and will, just that (a) last time they didn't let me go nearly far enough and (b) one of the trees doesn't belong to me. But I think that the council is the bigger stumbling block

blackteaplease Tue 15-Oct-19 19:56:49

That's why I was recommending an arboricultural survey. They will identify if the tree is in poor condition/ a danger to your house and recommend how much should be removed. That forms the basis of your planning application and the council are less likely to reject it.

You can ask for a meeting with the tree officer but most councils now charge for pre-app advice.

trilbydoll Tue 15-Oct-19 20:15:00

We have tpo on silver birch trees round here which is bonkers because they only live about 100 years. They're all reaching the end of their life, one went down across the front of a house recently and demolished their porch. I totally understand the reason for them and it's lovely having lots of trees but councils need to appreciate that the 3m tree that had the top put on it decades ago is now quite a bit bigger!

hairtoss Wed 16-Oct-19 14:06:00

Ash trees are particularly good at losing boughs randomly, I remember we had one in my back garden when I was a child, one day it was fine, next day had split in 2 and narrowly missed the house (no storm/winds)

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