UKTC Archive

RE: Liability For Damage Caused By Development

Subject: RE: Liability For Damage Caused By Development
From: Wright, Matthew
Date: Oct 26 2001 13:25:04
As I understand it the liability for any damage to the tree would rest with
whoever causes the damage (i.e. the developer in this instance). I have
dealt with similar problems in the past by including an informative on the
planning permission to the effect that the permitted development is likely
to cause significant damage to a tree on land outside the applicant's
ownership and that the applicant should therefore ensure that the tree owner
is consulted/advised of the issue prior to development commencing. The
lawyers representing each party then rake in a shedload of cash as they
argue the legal niceties of the situation but the planning department has
done its bit and is no longer involved.

It is also probably also worthwhile including in your report to the planners
that you have considered the relevant sections of the Human Rights Act in
coming to your decision.

Hope this helps.

Matthew
  
Matthew Wright
Landscape & Tree Officer
Planning Services, Exeter City Council, Civic Centre, Paris Street,  
Exeter  EX1 1NN

Ph: 01392 XXXXXX   
Fax: 01392 XXXXXX  
E-mail: matt.wright@xxxxxxx.gov.uk
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----------
From:         Jones, Andy[SMTP:andrew.jones@xxxxxxxxxxxx.gov.uk]
Reply To:     UK Tree Care
Sent:         26 October 2001 13:45
To:   UK Tree Care
Subject:      Liability For Damage Caused By Development

<<File: ATT03244.txt>>
Here's a nice Friday afternoon question for those of you involved with
trees
and development.

A Large Ash tree is situated in a private garden on the boundary to a
proposed development(infill- just enough room for a smallish house.) The
tree is large ~ 200m square canopy area when viewed from road side ~ small
residential cul-de-sac with four properties.

The planners want advice on tree/development conflict after objection from
the owners of the tree who say the development will destroy their lovely
tree.

'Helliwell' evaluation carried out on tree - Scores 10 at present and is
likely to score 5 post development - (The tree is situated 2.5 m away from
the conservatory of the persons objecting to development, who have lopped
off pretty much everything overhanging their conservatory leaving the tree
looking a very sad specimen ~ Makes you wonder why their so keen to
preserve
this tree now its threatened by development!!! ~ The rest of this very
large
tree overhangs the proposed development site.

The tree is certainly not a good candidate for retention and no way
warrants
protection via a TPO (as requested by the owner) but if development goes
ahead I can't see any way of this happening without damage to the trees
roots - and the first thing I would do if I was to develop the site would
be
cut the tree back to the boundary as it overhangs 50% of the plot!

So my advice to the planners is the tree is of low amenity value, not a
good
candidate for retention. However if development goes ahead it is likely to
cause significant damage to the trees rooting area, and result in the
developer/or new occupier to carrying out extensive pruning. Ball swiftly
back into the planners court to make a decision/recommendation and I can
continue sorting out my winter planting programme.

So what I would like to know is who would be liable for any damage caused
to
the tree if consent is granted? It isn't reasonable to attach a condition
requiring protection of the tree as this would make development virtually
impossible.

Is the LPA or the developer liable for allowing / causing damage to roots?
Or is their no fault, the owner should not have allowed roots to trespass?

The issue has come up before but damage to the adjacent tree was
insignificant, the planners took the line that it would be for the
developer
/ tree owner to slug it out in court ~ A helpful community friendly
approach.


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