Insurers and Councils: stopping the conflict over TPOs

TPOs are by the far the area of tree law that I get asked about the most.  They are emotive, political and complex.  There is considerable uncertainly and disagreement about how the law applies and, in particular, how it applies to tree root subsidence issues.

Disclaimer – what I will say in this section are my observations.  They are made on a high level basis. What I say is not to be construed of as legal advice as cases vary considerably based on their particular facts.

The scenario we are dealing with here is where a domestic property has suffered from tree root subsidence damage and a protected tree is implicated as the primary cause of that damage.

The homeowner will notify their insurers of a claim and the insurers will carry out investigations to determine the cause of the damage and to determine if insurance cover is accepted for the event or not.

Site investigations

Site investigation evidence will be gathered showing a causal link between the tree and the damage. As part of the Arboricultural assessment, the insurance company’s arbos will carry out an assessment into whether any implicated trees might be protected by statutory protection, TPO or conservation area.  Presuming that evidence links the tree to the damage and there is a TPO in place, that evidence will be submitted to the planning authority with a request for consent to fell the tree to stop the ongoing subsidence movement.  Once the application is validated (as having all the relevant evidence accompanying it) the LPA have 8 weeks to issue the decision on whether to consent to fell or whether to refuse.

Note that anyone can make an application to fell a TPO protected tree.  It doesn’t need to be the tree owner.

The request is generally made to fell the tree with the technical evidence in support and with a figure given for the likely cost of repair works to the property is the tree is felled versus the cost of the required substructure works if the tree is not felled.

The planning authority have 3 options in response to the application:

1. Consent to the felling
2. Consent with conditions
3. Refuse

If the planning authority decide to retain the tree (in line with their internal policies and targets) then they will issue a Notice of Refusal, meaning that the tree cannot be felled and the more expensive repair works need to go ahead in conclusion of the insurance claim.

Legal Claim

At this point, despite not being the tree owner, the planning authority then face the risk of a claim for compensation against them for their decision to refuse the application.  This compensation is payable pursuant to section 202E of the Town and Country Planning Act and s24 of the 2012 Regulations.

The compensation is for the cost which had to be incurred to repair the property in the absence of tree removal, i.e., the costs incurred as a direct result of the refusal.

In terms of how much the compensation claim is for, it is only for those costs incurred as a direct result of the refusal so will not include the cost spend in the investigation works, crack repair and redecoration.

However these costs can be expensive so planning authorities can be concerned about the risk of facing a sizable compensation claim and can feel under pressure to consent to tree felling in order to avoid the risk of a compensation claim. To hand the decision about tree removal or not to the tree owner.

Whilst planning authorities might have insurance cover to provide them with an indemnity in civil claims for damage where one of their own trees have caused subsidence damage, this insurance cover might not apply in this sort of claim.  The planning authority may therefore face a claim for compensation with the risk of that compensation money needing to come from an already very tight budget.

So if the LPA decide to consent to tree removal they pass that decision back into the hands of the tree owner.

However, these questions involving TPO protected trees and subsidence damage can attract a lot of attention.  By the very nature of a TPO protected tree, it will be of high amenity value meaning that consenting to remove it is not going to be without challenge from local residents and other parts of the Council.  Whilst the Duty to Consult of the EA does not apply to this situation, the LPA will still be accountable for its decision in other ways.  Those unhappy with a planning decision have the right to appeal the decision to the Planning Inspector, judicially review the decision or make a complaint to the LG Ombudsman.  Also holding an LPA to account through press attention.

These claims bring in issues of public policy which is why they are flagged to politicians and reform of the TPO laws are regularly requested.

Issues that I have observed:

Matters can be made worse by the particular factual scenario in play. Which show the competing interests of the parties.  Things Ive seen occur:

1. The tree might be equally distant to other properties of similar age and the planning committee might feel that, even if removal can be avoided from this claim, they will face another request in the future
2. CAVAT might have been used as a calculation of the value of the tree and its value might come out as equal to, or lower, than the worst case scenario for the repair works.
3. Carbon calculations might be referenced in the application setting out that, whilst tree removal is sad, the environmental implication of removing the tree is not as bad in terms of carbon than the carbon intensive alternative repair works. These are inaccurate carbon calculations.  Eg, 5 tonnes for concrete underpinning but a tree only removes xkg of carbon from the atmosphere per year (not measuring like with like).
4. Robust legal correspondence about the strength of the legal claim that the insurance company has leaving the planning authority in no doubt that a legal claim will follow.
5. Robust language on the prospects of success in a compensation claim meaning that the planning authority might not be able to carry out an accurate assessment of the risk that they face from the claim. Just because a claimant is telling you they have a legal claim and that they will secure compensation doesn’t mean that is what will happen.  TPO compensation claims are not easy to pursue.  They are claims brought before the Lands Tribunal and they are not very frequent.  There isn’t a wealth of LT claims to follow by way of precedent.
6. Further, there is no automatic entitlement to costs in the LT claims so the risk that the insurers of the Claimant face in these claims is that:
   1. Claims are smaller than normal claim for damages as they are only for the additional costs incurred as a result of the refusal
   2. There is no guarantee a costs award will be made so, even if the claim is successful, they may not walk away with a net recovery of money
7. Planning authorities can have a limited understanding of what the alternative to tree removal is with a limited understanding to question what’s being offered in terms of alternative repair scheme options.
8. The LPA might not have direct communication with all concerned which makes bringing everyone to the table for a mediation discussion to explore alternative solutions can be difficult.
9. The FOS’s guidance of policyholders being entitled to a lasting repair can push insurers to seek tree removal rather than exploring maintained tree reduction works to abate the nuisance.

Nuisance exemption

A curious thing about TPOs is that the person with most rights in relation to the tree can seem to be the neighbour.  Interesting that the nuisance exemption is sought to be removed in the update to the TPO legislation in Wales which was released for consultation in November 24.  It will be interesting to see if this goes live with the planning changes in Wales and then whether England will follow suit.

What about the exemption?

There are exemptions to the protection of the TPO in the TCPA, one of which applies to some subsidence cases.  That is the nuisance exemption which says that:

The LPAs consent is not required for cutting down or carrying out work on trees so far as may be necessary to prevent or abate a nuisance (s198(6)(b)).

This allows neighbours to take action to cut encroaching branches and roots where they are found to be an actionable nuisance, i.e., where they are doing more than just purely encroaching.

Why isn’t this exemption used more?

• Because reduction isn’t thought of as enough
• Home owner wants a lasting conclusion to the damage
• It needs to be an actionable nuisance and something is only a ‘nuisance’ once a Judge says it is
• Sanctions are criminal if this is done and the LPA do not agree with what’s been done

The nuisance exemption cannot apply where the tree is in the householder’s own garden as you can’t cause a nuisance to yourself.  There is talk about a protocol agreeing with LPAs that reasonable works can  be carried out to roots and branches of a protected tree to see if this can stop movement.

Refusal

If the decision is made to refuse the application it is KEY that the reasons for refusal are put into the Notice.  Do not just write about amenity value, write in detail the reasons that the refusal was made.

For a compensation claim to be brought against the LPA, the LPA need to be formally notified within 12 months of the notice of refusal that a claim is being brought.  Often solicitors do not understand this and the 12 month notice can be missed.  If it’s missed then there will be no claim.