Protected Yew Tree.Subsidence Claim. Please help my Grandma

Protected Yew Tree.Subsidence Claim. Please help my Grandma

Postby becky1971 » Sun Nov 06, 2011 9:50 pm

Hello GL users, Im new to this site and have found my way here trying to find a way to help my Grandma.

Grandma has a beautiful Protected Yew tree situated in her front garden and the neighbours have contacted there insurance company as they claim the tree is causing subsidence to their property due to the roots drying out their clay soil in turn causing subsidence.

The Insurance company has instructed a subsidence Mitigation Unit and aboricultutalist to get a report, in the report the aboricultutalist suggests that the above is actually correct and advise removal of the Yew tree. However I note that although a soil anaylsis has been taken no DNA has to prove its the tree itself causing the problem. In addition to this, they are wanting her to remove many trees that are situated quite away from their property and I must point out my Grandmas house does not have any subsidence, also their house is built on a raft.

I want to help my Grandma somehow as she is refusing to use her insurance company for fear of her premiums going up after (she lives on the bread line as it is). I have concerns that she is not using her insurance company for many reasons which I will list.
1. I heard once that a insurance company wont touch a claim if they was not involved from the very beginning?
2. As the paperwork that has been sent to her is very official I believe it is a aboricultralists report, but it is confusing as it refers to an expert engineer and I thought only surveyors were refered to as engineer's, and because i don't have any knowledge in this area I don't know if they HAVE to get a surveyors report or if the aborists report will suffice to force my grandma to do something.
3. The Tree is protected, My grandma has contacted the council and they have sent her a form as she will need permission to have anything done to the tree due to its protected status. She is adamant that she wants to forward the form to the neigbours as if they want the tree removing they will have to prove it all to the council. Will this invalidate her insurance? if i can get her to use her insurers?
4. She doesnt want the tree to go and wants to fight it without any legal help apart from entrusting me to find out what I can.
5. My mother got involved and drafted a letter to the mitigation department back in June, only days after getting their correspondence. She has not heard back specifically to the letter and they have sent another letter dated 18th October that states that Grandma is on notice of a nuisance in common law arising from the action of roots and has failed to take appropriate action to abate the nuisance. That the clients reserve the right to take legal action to recover costs. That the file has been closed and passed back to the insurers. Hence my worry that if Grandma does not instruct her insurers now, and tries to fight them via the protection order and getting the council to get involved that if she does need the insurers down the road that they wont take her case.??? I dont know.

Additional information to the case that may help. They went through all of this with her 20 years ago when her husband was alive. Same issue. The roots were pinned as far as I know, this I hear through a third party so may not be correct. But a issue did arise 20 years ago.
When they were all friendly the neigbours told my Grandma and grandad that other properties they had, whenever they wanted something doing, they found a way to blame the neighbours so they could claim on the insurance. As she has not forgotten this, she is loathe to contact her insurers.

I am seeking advice and help please. It will be very important that any advice I do get will be used to help my Grandma as she has tied our hands at the moment.

If you can advise on the above I will be most grateful and as soon as you possibly can. Phew.
becky1971
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby Treeman » Sun Nov 06, 2011 10:21 pm

Ok the first thing I need to know is what stage of the “dance” we are at. Here is how these things generally run.

The other side sends a strongly worded letter with lots of words and little substance, it’s all big words and sabre rattling.

The next would be for the other side to conduct investigations, establish fact and bring evidence, at that point you would have to act.

The fact that the trees are subject to statutory protection means that someone will need to gain consent for the works, if the LA don’t think a case has been made they wont give consent.
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby becky1971 » Sun Nov 06, 2011 11:28 pm

Hi Treeman :)

I was so hoping you would reply, Thank you.

Ok. The stage of dance I can figure from the paperwork is that, the Mitigation dept has been instructed by the other parties insurers. Two letters have been send as mentioned in the previous post, other than that I cant see anything apart from Mitigation dept saying in last letter they have closed the case and passed back to insurer's of the other party.

The other party's mitigation has instructed a aboricultralist and I have the report. I can give you specific details off it if you can tell me what you need. There is a lot of content and photographs.

Regarding the protection order, because my Grandma knows that the LA have to authorise any works and believe they will investigate it before granting anything, she wont involve her insurers. Her view point is that if the council say the tree has caused a problem then she will have it removed. However where I am worried about that is if the council did indeed say that it was her tree causing the subsidence and instruct removal, that the other party would have a case then to sue my grandma for repair to their property. If this was the case would it all be too late to then go to her insurers? (I think so)

My grandma is expecting me to put the LA form in the post to the neighbours tomorrow so that if they want the tree removed then they will have to fight the council on it. Is this wise to send the form to them?

Thanks for your help Treeman :D
becky1971
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby Treeman » Mon Nov 07, 2011 12:05 am

The arb report should mention test pits or bore holes, these should have the identification of any roots discovered, if it doesn’t have this we are still at stage 1 of the dance.

You don’t have to inform your insurers until the other side have provided empirical evidence, until then it’s all just allegations.

The council wont venture an opinion on the state of the tree, all they will do is assess any application lodged and decide if they can allow the works described.
Treeman
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby becky1971 » Mon Nov 07, 2011 12:22 am

The arb report mention exactly the following just so you can see and comment;

Technical investigations done: Soil analysis, drain report, foundation detail and barehole log.

also says, awaiting searches from LA and awaiting further instructions, a potential recovery action has been identified.

Then a list of recommendations.

So when would my Grandma consult her insurer without predudicing her claim?
becky1971
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby becky1971 » Mon Nov 07, 2011 12:50 am

For "Treeman"

Also what do you think about my grandma feeling it necessary to send the application (from the LA planning department) application for tree works: works to trees subject to a tree presevation order. To the neighbours with the dispute?
becky1971
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby Treeman » Mon Nov 07, 2011 9:57 am

From that they haven’t yet managed to implicate your trees with anything like the burden of proof required.

Submitting an application to fell the trees with the grounds “the neighbours say they have subsidence” (even including the sabre rattling letter they have sent you) will result in a refusal.

The LA will want more evidence, the other side will have to provide it.

If you aren’t particularly attached to the trees you could tell the other side that, while they have not yet provided empirical evidence implicating your trees, as a reasonable neighbour you are prepared to allow agreed works to the trees by a competent and suitably insured contractor at the expense of the other party.

Underwriting the tree works is often cheaper and quicker fix than scrapping with you over minutia and the insurers want a quick cheap fix.
Treeman
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby becky1971 » Mon Nov 07, 2011 10:26 am

My grandma does NOT want the tree gone.

She has a bee in her bonnet that she should give them the LA form and make them prove it. I feel she shouldnt even have to do this and just leave it completly until and if they prove it. I feel if they want it down they should contact the council and get forms.

What do you think?
becky1971
 
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Re: Protected Yew Tree.Subsidence Claim. Please help my Gran

Postby Treeman » Mon Nov 07, 2011 7:42 pm

As I said, until the other side bring empirical evidence you don’t have to do anything but I would advise responding advising them that the trees are subject to a TPO and they should seek consent for any proposed works from the L.A.
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