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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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hi - i have a development site in London and planning has been

Resolved Question:

hi - i have a development site in London and planning has been refused due to the potenail impact on an OFF Site tree. the tree does not have a TPO on it and the specialist reports says it is damaged and diseased and is unlikely to live long. It is an ash tree so could also be affected by ash die back.

in the light that I can legally cut the roots and branches back to the boundary (under the nuisance legislation) can the planners / tree officer use impact on the roots as a reason to turn down planning?
thanks rob
Submitted: 4 years ago.
Category: Property Law
Expert:  wingrovebuyer replied 4 years ago.

wingrovebuyer : Hello. Yes, even if there isn't a TPO on the tree, the planners can refuse permission on the grounds that the development could harm trees of amenity value. However, an appeal may have legs, if you can demonstrate that the tree has no amenity value or is already dying.
Customer:

the tree report, by a specialist clearly says it is dying and diseased. it is also in another 3rd parties back graden and has no ammenity value but to them.

Customer:

i have suggested in my planning application that i will do all that i can to reduce impact on the tree - positioning the building outside the Root protection area as much as i can; using piles; suspended floor slabs etc - thereofre i am doing all i can to protect the tree. and as i see it the planners are not being pragmatic. Alternatively under the nuisance legislation i could remove all the roots from my site and put in another application which clearly says that no roots are evident on my site and therefore i cant harm them.... therefore can they still refuse planning on causing harm ... as nothing exists on my side of the site to cuase harm?

wingrovebuyer : I'm not sure removing the roots is the best idea, as if the tree then dies and falls, you might be liable for the damage, if any. I suggest you appeal the decision on the grounds that their assessment of the amenity value of the tree is incorrect and not pragmatic. I think you stead a very good chance of convincing a planning inspector of your case.
Customer:

the trouble with the appeal is that it will take a long time - you also get only one chance at appealing for a site - so it should and needs to be completly the end of the road. conversley putting in another planning application has a defined time period. if i remove the overhanging branches as well i will be removing the diseased elements as well but in essence my site will only have about 1/4 of the roots as in theory roots go out from a tree in equal directions. if i only remove the roots at the end of the Root protection zone that will be impacted by my development the majority of the roots will remian and i will only have effected the edge of the root zone. if the tree fell over the next day i could understand being held liable for the damage as there would be a direct link... if it fell over 1 month; 6 months or 12 months later - how could and would it be linked back to my actions. i would argue by removing the branches i was reducing the overall weight of the tree taking away the disease and the action i took to the root zone were minimal - therefore the tree falling over was due to age; bad management and disease... not me...

wingrovebuyer : An appeal would not take that long, and I doubt it would sterilise your site if the PI upheld the refusal, because it old be made clear that it was solely on the grounds of the tree, which if it then died completely would be taken out of the picture. If you new application is refused on the same grounds, despite your works to the tree, it would arguably have the same result as a failed appeal. However, your suggestion is also valid, and it may be a good idea to do the works to th tree before anyone applies for a TPO on it. You of course have every right to remove roots and branches on your property, but even if the tree dies a year later, and falls down, it is not impossible to establish a causal link and for you to be held liable. However, I'd say that such worries are possibly never going to materialise and so it may be worth the risk.
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