Subsidence Related Tree Work Applications and Compensation Claims - Appendix

CABINET 12/12/2010 FOR INFORMATION

BOROUGH OF POOLE

ECONOMY OVERVIEW AND SCRUTINY COMMITTEE

2 SEPTEMBER 2010

SUBSIDENCE RELATED TREE WORK APPLICATIONS AND COMPENSATION CLAIMS: REPORT OF THE SENIOR ARBORICULTURAL OFFICER

PART OF THE PUBLISHED FORWARD PLAN NO

STATUS (Service Delivery Information)

1.  PURPOSE

1.1  The key purpose of this report is to advise Economy and Overview Scrutiny of the current situation regarding tree work applications to fell protected trees alleged to be implicated in subsidence damage to properties on shrinkable clay soils and to agree a policy on how to determine such applications.

2.  DECISION REQUIRED

2.1 To set policy where if a tree is considered not to have ‘special’ or ‘outstanding’ amenity value worthy of serving an Article 5 certificate then notwithstanding the normal arboricultural assessment criteria the LPA will not refuse applications to fell trees where there are implications regarding subsidence related damage.

3.  TREE PRESERVATION ORDER LEGISLATION

3.1  The power to make a TPO is exercised by the LPA and may be carried out if it appears ‘expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area’.

3.2  The law on TPOs is enshrined within the Town and Country Planning Act 1990, in the Planning and Compensation Act 1991 the Planning and Compensation Act 1991 and the Town and Country Planning (Trees) Regulations 1999.

4.  ARTICLE 5 CERTIFICATES AND COMPENSATION

4.1  When refusing consent or granting consent subject to conditions under a tree preservation order (TPO) which was made before 2nd August 1999 the LPA may issue, in relation to any tree to which the refusal of consent (or conditions) relate, a certificate under Article 5 of that TPO. Certificates cannot be issued in relation to a TPO made on or after 2nd August 1999.

4.2  Government guidance in the form of the DETR publication Tree Preservation Orders – A Guide To The Law and Good Practice (The Blue Book) provides useful advice in relation to Article 5 certificates and states:

An Article 5 certificate may be issued if the LPA are satisfied:

1.  that their decision is in the interests of good forestry, or

2.  that the trees, groups of trees or woodlands to which the certificate relates have an “outstanding” or “special” amenity value.

4.3  In simple terms the effect of an Article 5 certificate is to remove the LPA’s liability under the TPO to pay compensation for loss or damage caused or incurred as a result of their decision.

4.4  The Blue Book advises LPA’s to use Article 5 certificates with discretion and not as a means of avoiding the potential liability of compensation. The LPA should consider each case on its merits and be satisfied that their decision to issue a certificate complies with either requirements in 4.2 (1) or 4.2 (2) above.

4.5  The Blue Book advises that as a matter of good practice the LPA should:

1.  leave the applicant in no doubt that a certificate has actually been issued,

2.  explain their reasons for issuing the certificate,

3.  explain the effect of the certificate, and

4.  explain the applicant’s right of appeal.

4.6 The Blue Book provides a model Article 5 certificate that provides a useful template on which LPA’s can base their own certificates.

4.7 Article 9 of the TPO explains s.203 of the Planning Act in that compensation can be paid by the LPA for loss or damage caused or incurred as a result of:

·  The refusal of any consent under the TPO,

·  The grant of consent subject to conditions.

4.8 No claim may be made if:

·  More than 12 months have elapsed since the date of the LPA decision or, where such a decision is the subject of an appeal,

·  The amount of the claim is less than £500.

4.9 Rights to Appeal

·  Each appeal against a ‘special’ or ‘outstanding’ certificate is treated by the Secretary of State on its own individual merits. The Secretary of State will decide whether the tree holds sufficient amenity to warrant a TPO and beyond with regards to its suitability of an Article 5 Certificate.

5.  TREE RELATED SUBSIDENCE CLAIMS

5.1 In light of the above legislation and issue surrounding potential Article 5 certificates, this raises a particular difficulty for the LPA.

5.2 Applications to the LPA to prune or remove protected trees on shrinkable clay soils is not a new phenomenon. Historically, applications were refused where it was considered that the health and amenity contribution of the tree outweighed the reasons for the proposed works. Sometimes the applicant would appeal against the decision but the LPA were not subjected to any further actions to recover costs of repairs to damaged structures. At this time it was not normal practice to serve Article 5 certificates. as the risks were considered to be small

5.3 Following a High Court case (Delaware Mansions Ltd v Westminster City Council [2001]) the House of Lords unanimously concluded that a plaintiff may recover in nuisance for pre-ownership damage to its interest so long as the damages awarded are reasonably necessary to abate a continuing nuisance.

5.4 This provided sufficient weight for insurance companies to seek costs of repairs to structures located in shrinkable clay soils where LPA’s had refused consent for tree work to trees protected by tree preservation orders.

5.5 The LPA have been successful in that the majority of appeals have been dismissed on the grounds that the trees are healthy and important in amenity terms. Furthermore, Planning Inspectors have highlighted the deficiencies in the information provided with the application relating to engineer’s reports, soil analysis and monitoring data etc. This demonstrated that the LPA were making the right decisions in accordance with Government guidance. However, in one particular case whilst the Planning Inspector dismissed the appeal, therefore agreeing the position of the LPA, he did not uphold the serving of the Article 5 certificate, thus leaving the authority exposed, without any liability on the part of the inspectorate

5.6 Therefore, despite the LPA’s decision being supported at appeal, due to the fact that there is no Article 5 Certificate the Borough has received a claim relating to costs of repairs for alleged damage caused by protected tree in the vicinity of a building.

5.7 The LPA therefore have to evaluate the risk and liability that could occur as a result of a refusal notice to fell a tree protected by a TPO where the tree is located in shrinkable clays and there is potential for damage to occur to a nearby building.

5.8 In these circumstances, whilst a normal arboricultural assessment is undertaken, a further assessment will be required to evaluate whether the tree can be considered to be of ‘special’ or ‘outstanding’ amenity value, and therefore worthy of the serving of an Article 5 Certificate. Where it cannot and to refuse the application to fell would be likely to expose the Authority to risk of a claim then the business decision should be to allow the tree to be felled.

6.  FINANCIAL AND RISK IMPLICATIONS

6.1  The LPA are not keen to issue Article 5 certificates and prefer to rely on the strength of the tree preservation order in the majority of cases. However, alleged subsidence claims have the potential to expose the LPA to claims for significant compensation.

Where the Authority is minded to refuse an application, the opinion of a structural engineer as to the validity of the alleged damage to structures can be obtained. Where advice is given that the submitted evidence does not conclusively demonstrate that the trees are the primary cause then refusal of the application is likely. In most cases, there will be an indication of the likely costs to repair buildings and to resolve the alleged subsidence issues.

6.2 Financial Services have advised that the Authority cannot purchase subsidence cover for damage of third party property for non-Council owned trees as we do not have an insurable interest in them.

7.  EQUALITIES IMPLICATIONS

None

8. LEGAL IMPLICATIONS

8.1 Subsidence related damage to a person’s property can be disconcerting for the owners and council officers are well aware of impact that this can have on them. However, applications to remove trees citing damage caused by subsidence are generally submitted by the owner’s insurance companies, or agent acting on their behalf, in an attempt to resolve the issue without incurring significant expense. Insurance companies view trees as an easy target and often do not take proper account of other factors that could be responsible for the damage such as insufficient foundation depth or poor construction of the building.

8.2 Where sufficient evidence is submitted to demonstrate that trees are the principal cause of subsidence or where they are considered to be of insufficient amenity value to warrant the serving of an Article 5 certificate, the LPA will grant consent for their removal. This discharges the LPA’s liability and resultant claims would not be valid. The tree owner’s insurers usually pay the cost of necessary tree works.

10. PROCEDURE FOR DEALING WITH SUBSIDENCE RELATED APPLICATIONS

10.1 A flowchart is attached as Appendix A.

11. CONCLUSIONS

11.1 In order to protect the LPA against potential significant claims a policy needs to be agreed and implemented so that subsidence related tree work applications can be dealt with in a clear and consistent manner.

11.2 The Authority cannot purchase insurance cover for subsidence related damage to third party property for non-Council owned trees.

11.3 In such cases the overriding concern for the arboricultural officer dealing with the application is whether the tree has ‘special’ or ‘outstanding’ amenity value. Where the tree is considered not to have either of these attributes the application will be recommended for approval and an Article 5 certificate will not be served. This is purely a business decision as the likely cost of the claim would, in most cases, be significantly more than the amenity value of the tree in monetary terms and greater than the environmental impact.

Report Author:

Russ Fisher – Senior Arboricultural Officer

Acknowledgement:

Andy Luddington – Arboricultural Officer

Background Papers:

Town and Country Planning Act 1990

Town and Country Planning (Trees) Regulations 1999

Tree Preservation Orders – A Guide to the Law and Good Practice

Appendix A