TPO says tree is in a house's garden but isn't !

TPO says tree is in a house's garden but isn't !

Postby gps » Thu Oct 26, 2017 11:33 am

Hello and greetings to forum members.

I have an issue that I hope someone here has some experience with.

I am examining a house that has a charge against it when I performed the searches. The charge is a TPO. Now it appears that the tree mentioned in the TPO is not actually on the land that the house occupies. I have checked this with reference to the title from the land registry and site photos, and I am 95% confident from looking at where the borders are that the tree is not on land owned by the property but on the next door neighbors. I understand establishing accurate borders is not entirely trivial, but I am pretty sure I have got this one right. As far as I am aware, there is no reference to the tree in the deeds (ie no mention it forms the boundary).

The issue is every time a search is done on the property the TPO will come up, even if the tree isn't actually on land owned by the house. I understand the TPO doesn't define who owns the tree and the location is specified only to allow the tree to be reasonably located for preservation purposes, but to me it seems to the property owners detriment if a TPO turns up every time the searches are done for a tree they don't own. From viewing historical planning applications, it appears that the neighbor has always carried out work on the tree.

So I guess the question is, what if anything can be done about this ? Are the council likely to modify the TPO to truly reflect the position of the tree if requested ? And if they refuse can anything be done about it ?

Thanks in advance for any response.
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Re: TPO says tree is in a house's garden but isn't !

Postby TO » Thu Oct 26, 2017 6:08 pm

Hi.

None of the documents you mention are relevant to defining the location of the tree or the land charge. You need to look at the TPO plan.

If it shows the tree where it is meant to be you could ask the Council to remove the land charge from your property. If the tree is wrongly plotted you could ask the Council to put the map right, and remove the land charge from your property.

However, If the tree overhangs your property it is to the advantage of the owner to know that the tree is protected, otherwise they could end up with a hefty fine for undertaking work to it. No doubt they'd say they weren't aware as it didn't show on the land charges registry when they bought the house.
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Re: TPO says tree is in a house's garden but isn't !

Postby gps » Fri Oct 27, 2017 1:16 pm

Hello TO, and thanks for your response.

Maybe I did not make it quite clear. As far as I am aware the title plan at the land registry (which I have and in the absence of any further information in the deeds) best defines the boundaries of the property and thus the owner of the tree. Of course interpreting the actual boundaries from the title plan is an issue in itself (h/t user conveyancer), but for the purposes of this debate I think it is best assumed that I have interpreted them correctly (otherwise there is no question to answer) and the tree is not owned by the property (either in part or in whole).

Courtesy of the so far very helpful local council I do have a copy of the TPO plan. But as you might imagine, if the land registry plans can sometimes not be so accurate, TPO plans are somewhat worse ! In fact the TPO plan does not mark the property boundaries, or indeed the correct outbuildings that help define the boundaries. I think it does, however, unambiguously identify the location of the tree covered by the TPO (if not who owns it), so in that respect, it serves its purpose. Where I think the TPO is wrong is that it states in languauge that the tree is located in the gardens of property X and property Y, whereas in reality it is only located in the garden of property Y.

I suppose the interpretation of whether or not a TPO charge on your property for a tree you don't own is advantageous is subjective. I agree it is helpful in some respects (as per your comments). On the other hand it may put off a potential purchaser or cause other issues. I always try to interpret these arguments in terms of reductio ad absurdum (I had to paste that). In this case for example, if a TPO charge can be placed on a property that doesn't own the land, then theoretically any tree in England can appear as a charge on any property. Which doesn't make a whole lot of sense to me.

I suppose the general question I'm asking is that if locations of trees in TPO maps are stated incorrectly (say the TPO states the tree is in the garden of house X when it is actually in the garden of house Y), are there mechanisms by which the council can correct the TPO and are councils generally prepared to do this and does anyone have any experience of this happening or the process that actually occurred ?

Thanks.
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Re: TPO says tree is in a house's garden but isn't !

Postby Collaborate » Fri Oct 27, 2017 1:24 pm

You haven't said whether the tree overhangs your property. If it does, the tree is in your property and affects it.
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Re: TPO says tree is in a house's garden but isn't !

Postby gps » Fri Oct 27, 2017 2:49 pm

Collaborate wrote:You haven't said whether the tree overhangs your property. If it does, the tree is in your property and affects it.


I think at the moment considering that is a bit like running before you can walk and the consequences of overhang (whether on TPO or non TPO trees) are more about tree management than ownership and are probably done to death in other threads on this site from what I can see.

At the moment what I'm more interested in is establishing ownership, and that all publicly available documents unambiguously reflect which property owns the tree/where it is located. There are many reasons for wanting to do that, as ownership has consequences and responsibilities. As an aside I'm not particularly concerned with what status the tree finally has (owned by property X, Y or even Z) just so long as that status is known and is well defined.
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Re: TPO says tree is in a house's garden but isn't !

Postby arborlad » Fri Oct 27, 2017 3:08 pm

Collaborate wrote:You haven't said whether the tree overhangs your property. If it does, the tree is in your property and affects it.




Simple overhang is not sufficient to change ownership of a tree - the law is very clear on that matter.
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Re: TPO says tree is in a house's garden but isn't !

Postby Collaborate » Fri Oct 27, 2017 4:26 pm

arborlad wrote:
Collaborate wrote:You haven't said whether the tree overhangs your property. If it does, the tree is in your property and affects it.




Simple overhang is not sufficient to change ownership of a tree - the law is very clear on that matter.


I understand that. The point I'm making is that if there is an overhang then OP has the right to cut back. As there is a TPO in place that will be an offence. Perhaps that is why it is registered (wrongly) as a charge on OP's property.
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Re: TPO says tree is in a house's garden but isn't !

Postby APC » Fri Oct 27, 2017 5:51 pm

You've said that the plan shows the tree in the correct position however it appears the schedule specifies the location innaccurately. Where there is a discrepancy, the plan takes precedent. Boundaries and house numbers/names change, the position of trees don't.
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Re: TPO says tree is in a house's garden but isn't !

Postby arborlad » Fri Oct 27, 2017 6:10 pm

gps wrote:I suppose the general question I'm asking is that if locations of trees in TPO maps are stated incorrectly (say the TPO states the tree is in the garden of house X when it is actually in the garden of house Y), are there mechanisms by which the council can correct the TPO and are councils generally prepared to do this and does anyone have any experience of this happening or the process that actually occurred ?

Thanks.




What separates the two properties X & Y?
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Re: TPO says tree is in a house's garden but isn't !

Postby gps » Fri Oct 27, 2017 7:02 pm

APC wrote:You've said that the plan shows the tree in the correct position however it appears the schedule specifies the location innaccurately. Where there is a discrepancy, the plan takes precedent. Boundaries and house numbers/names change, the position of trees don't.


Ummm, not quite. At the risk of distracting (again) the point of what I'm trying to ask, the land title does not show the tree. It only allows you to interpret where the boundary is, and since the tree is on the other side of the boundary then it isn't owned by the property. Now I know you might say interpretation of the boundary can be non trivial, and I'm fully aware of that. But in this case I believe it is relatively striaghtforward. I'm not really that interested in a discussion about interpreting boundaries (that would be an issue for the boundaries sub forum). What I am interested in is assuming that the trees ownership wrt the boundary is not in question - it's where the tree is located in the tpo that is.

The question I ask (I hope) is a simple one. If the tpo is incorrect and says the tree is located on property x and property y when it is actually located only on property y, is there a mechanism for getting the tpo updated to reflect the real position of the tree and does anyone have any experience of doing this ?
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Re: TPO says tree is in a house's garden but isn't !

Postby gps » Fri Oct 27, 2017 7:07 pm

arborlad wrote:
gps wrote:I suppose the general question I'm asking is that if locations of trees in TPO maps are stated incorrectly (say the TPO states the tree is in the garden of house X when it is actually in the garden of house Y), are there mechanisms by which the council can correct the TPO and are councils generally prepared to do this and does anyone have any experience of this happening or the process that actually occurred ?

Thanks.




What separates the two properties X & Y?


At the risk of sounding facetious, the boundary ! There are "boundary features" but I don't want you to assume that I have assumed that because there is a fence/hedge there, it must define the boundary. This isn't necessarily true. As per the above response, the question I'm asking assumes the boundary is settled and the ownership of the tree is not in dispute with respect to the boundary, it is only incorrectly specified on the tpo.

Edit : I'm beginning to think that this problem is not exactly common. I suppose I should have guessed when the google came up with no response.
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Re: TPO says tree is in a house's garden but isn't !

Postby Collaborate » Fri Oct 27, 2017 7:26 pm

Your remedy is quite simple. You write to the LA and point out they've made a mistake, and can they please remove the reference on their records to the tree being on your property. There doesn't have to be a form and a prescribed procedure for everything.
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Re: TPO says tree is in a house's garden but isn't !

Postby APC » Fri Oct 27, 2017 8:15 pm

I wasn't talking about the title plan, I was referring to the TPO plan. You have already stated that the TPO plan is unambiguous and shows the correct location of the tree. You must be referring either to the schedule being incorrect or that the non-tree owner has the hump that it's coming up as a land charge against their property.

If you think the schedule is incorrect, as above, write to the LPA and explain the error/innaccuracy. Invite them to visit so that they can make a record and vary the TPO, if necessary.

If your property has a lawful, common law right to prune this tree i.e. it overhangs or its roots grow across the boundary, then it affects your property and is correct to be brought up in searches. This is not to anyone's disadvantage.
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