Tree issue with neighbours

[AlfieLeChat]

Hi everyone, I wonder if anyone has had a similar issue to mine, as I am getting tangled up in a situation with my neighbour’s insurance company with respect to a tree that is in my garden.
In brief, the timeline is as follows:

- About 10 years ago I applied for pruning of a tree in our garden to the local council. I felt the tree was too big (it is about the height of a 4 storey block). However, I live in a conservation area and the application was refused plus a tree preservation order was placed on the tree. So, I left it at that, but the important point here is that the tree was now registered as protected.

- Last year, out of the blue I received notification by a subsidence specialist company acting on behalf of my neighbours and including an arbocultural report claiming that the tree was the cause of subsidence on their property. I do not seem to have such a problem on my property, however, I suppose this is not too relevant. The report was quite extensive running into tens of pages, with what looked like a sophisticated analysis of soil and roots implicating in part the tree in question. It essentially said that we should remove the tree to prevent any future damage – a request which I thought was reasonable.

- I notified my insurers who did not seem that interested.

- I therefore made a fresh application to our council with the full report included. The council once more refused to allow removal of the tree. I then updated our neighbours’ insurers.

- Now I just received a claim by our neighbour’s insurance for subsidence damage, which brings us up to date.

So, I are not that sure what the best way to proceed is here, and if I am liable for any of the above. I seem to be stuck in between two parties. On the one hand it seems reasonable to remove the tree, which I am happy to do, however, the council will not allow me to do so. Is the council now liable for any further damage on the neighbour’s property or am I? Has anyone had a similar experience with such an issue?

[atticus]

You say you have received a claim. Do you mean a court claim?

Whatever the answer, notify your insurer.

[des8]

Does your own household insurance cover your public liability.?
If so inform them immediately of the situation, and they should deal with it on your behqalf

[AlfieLeChat]

You say you have received a claim. Do you mean a court claim?

Whatever the answer, notify your insurer.

Thank you for your advice.

The notification reads verbatim:

In compliance with Civil Procedure Rules, General Pre-Action Protocol (Practice Direction), we have set out our allegations and enclose supporting evidence for your consideration and comment.".

So i assume it is a pre-action protocol, before starting court proceedings?

[AlfieLeChat]

Does your own household insurance cover your public liability.?
If so inform them immediately of the situation, and they should deal with it on your behqalf

Thanks for taking the time to respond.

Yes it covers public liability up to 5 million.

Do you think there is any merit in also informing the local council of the situation?

I understand that my insurer will be dealing with this and I am not worried about it as I am adequately covered

However I want to educate myself as I would like to follow how this pans out. I wondered who is liable here:
Is it me, who owns the tree, or the council who has not allowed me to address the problem with the tree, despite me pointing out what the problem was?!

[des8]

It is a criminal offence to carry out works to a tree protected by a TPO without consent of LPA (although formal consent may not be required if the work is to prevent or abate a nuisance).

It is your tree, and so it will probably be deemed that liability lies with you.
Altho' the LPA refused you permission to prune to lower the height, you did not request permission to root prune (which may have prevented the subsidence problem).
To have obtained permission you would probably have needed a specialist arborist report anyway.

At least that is how I see the situation

I would not advise talking to the council or dealing with the matter in any way at all.
You have subrogated all your rights to your insurers and you should not get involved.

[atticus]

Yes, that appears to be a letter written under a pre-action protocol.

Notify your insurer on Monday.

[AlfieLeChat]

It is a criminal offence to carry out works to a tree protected by a TPO without consent of LPA (although formal consent may not be required if the work is to prevent or abate a nuisance).
It is your tree, and so it will probably be deemed that liability lies with you.
Altho' the LPA refused you permission to prune to lower the height, you did not request permission to root prune (which may have prevented the subsidence problem).
To have obtained permission you would probably have needed a specialist arborist report anyway.
At least that is how I see the situation
I would not advise talking to the council or dealing with the matter in any way at all.
You have subrogated all your rights to your insurers and you should not get involved.

When I submitted the application it was with a full arboricultural report, implicating the roots. The arbo report clearly recommended getting rid of the whole tree, which is what I applied for and got rejected.

So the way I see it, the council refused permission to cut a tree in full knowledge that the tree had caused (and continues to cause) damage, backed up by a detailed report and recommendation. Does that still make me liable?

[des8]

The owner of a tree is normally responsible for its safety
However to make a successful claim against the owner the claimant has to demonstrate negligence on the part of the owner.

It could be that your insurers (when in possession of the background) decide on a commercial basis to meet the claim, without admitting liability as you were prevented by law from dealing with the problem

[echat11]

Even if the tree is in protected area, it can be removed with permission of the Council. You kind of have to be determined when dealing with Councils.

Your Council will have a PDF on their policy regards TPO. If the claim is being passed on to your insurance company, you should see if your insurers can make a claim against the Council.

[AlfieLeChat]

Even if the tree is in protected area, it can be removed with permission of the Council. You kind of have to be determined when dealing with Councils.

Your Council will have a PDF on their policy regards TPO. If the claim is being passed on to your insurance company, you should see if your insurers can make a claim against the Council.

When you say determined, what else can one do? I do not have any further information to provide, is there a more valid level of evidence than that provided (a full arbocultural appraisal report for investigation of subsidence damage)?

Yes the council has a policy regarding TPOs which I followed, hence we went through the formal process for applying to have the tree removed.

[echat11]

When you say determined, what else can one do? I do not have any further information to provide, is there a more valid level of evidence than that provided (a full arbocultural appraisal report for investigation of subsidence damage)?

Yes the council has a policy regarding TPOs which I followed, hence we went through the formal process for applying to have the tree removed.

By 'determined', I mean, you made application to the Council, they say it's a TPO so can't be removed, then you need to lodge a formal complaint (appeal decision too) and follow that through their complaints procedure, it's a 'ridiculous' decision because it's causing 'subsidence' damage to your neighbour's property.

Even though you think that your property is fine, tree roots grow to 'ridiculous' lengths.

https://assets.publishing.service.go.../tposguide.pdf

[AlfieLeChat]

I have passed this on to my insurance. I will update as things move along, in case others are in a similar situation.

I started by contacting the insurance, who asked me to contact the insurance broker who then sent me back to the insurance.
As it stands they said they will be taking on the next steps.