Council leader calls for reform to tree felling legislation to curb costly subsidence claims

The leader of Fareham Borough Council has called on the Government to fundamentally review how requests to fell trees protected by tree preservation orders and involved in subsidence claims are handled.

In a letter to the Secretary of State for Housing, Communities & Local Government, Angela Rayner, Cllr Simon Martin set out four changes he would like to see made to tree legislation, including a reform that would require applications to fell trees implicated in subsidence to include a report demonstrating all alternatives to felling had been considered.

According to Cllr Martin, Fareham is facing increasing numbers of requests to fell trees that are involved in subsidence cases.

When trees are implicated as the cause of subsidence, insurance companies often seek the removal of the tree.

Insurance firms will ask the tree owner to remove the tree in the first instance. If the tree is subject to a tree preservation order, consent is then sought from the council to fell the tree.

Where the felling of such a tree is refused, councils can be exposed to substantial compensation claims.

Cllr Martin's letter said: "When applications are made to the council to fell a tree the council is essentially faced with a binary choice: it can grant consent for the felling or refuse consent.

"If the council refuses consent, it becomes immediately liable to potential compensation claims from the owner of the property affected by subsidence (by virtue of Regulation 24 of The Town and Country  Planning (Tree Preservation) (England) Regulations 2012)."

The letter called for the following four reforms:

1. In making decisions on applications seeking to fell protected trees, decision makers should be required to give considerable weight to all the benefits arising from trees, not just the amenity benefit. "It would be appropriate that where an application is made to fell a tree for reasons of subsidence, that the application is accompanied by a completed assessment such as [Capital Asset Value for Amenity Trees (CAVAT)], so that the value of the tree in question can be established at an early stage. The greater the value of the tree, the greater the weight which should be attached to its retention in decision making."
2. All opportunities for retaining protected trees must first be explored, with felling being the last resort rather than the starting point. "Such opportunities could include managing/reducing the size of an implicated tree; installing automated soil watering systems to address soil conditions in times of drought; installing root barriers; and implementing remedial works which address the subsidence whilst enabling the retention of the tree."
3. Applications to fell trees implicated in subsidence, must be accompanied by a report demonstrating that all alternatives to felling have been explored, and that the felling of the tree is the only viable option. "If a viable structural solution can be implemented, the expectation is that such a solution would be implemented rather than a tree felled."
4. The compensation provisions of the Regulations would need to be far more limited than they are at present. "As they presently stand, local authorities have a very limited defence against compensation claims when refusing consent for felling protected trees. Potential compensation claims should be limited to situations such as those where it has been demonstrated that there is no viable alternative to felling a tree, and the local authority still refuses consent."

Cllr Martin added: "This council would urge that very careful consideration be given to amending the existing legislation and procedures in line with 1)-4) above, in turn giving far more weight to the broader benefits of trees and their retention in decision making."

Adam Carey