Tree Removal - Restrictive Covenant

DTR91

Hello,

I am looking for some advice regarding the removal of a tree in our front garden in order to extend our driveway. This is on a Persimmon house built in 2015.

I initially enquired to the council regarding the removal of the tree as there is a TPO for the area of the whole estate (not individual trees). The council arboricultural officer confirmed that this TPO only applies to existing trees in the area at the time that it was issued. As the TPO was issued in 2004 before the estate was built in 2015 this new tree would not be protected. 

However, we have since noticed that there is also a restrictive covenant in our deeds as follows:

'Not to cut down, damage or remove any existing tree or hedge on the property or any other plant planted pursuant to the requirements of the public authority'

I have emailed Persimmon customer service to enquire what can be done about this covenant. Their response was that I need to contact my local authority to request permission (which I have already done as above).

I am not sure on my next step, as I feel o am going round in circles -  would I be ok to proceed with removing the tree? I am concerned that we are looking to sell the house in a few years and would not want this to affect a future sale.

Thanks.

silvercar

Pursuant to the requirements of the public authority, sounds like you have done all that is required of you.
Once it is gone and 5 years down the line, I can't see any house buyer knowing about a tree that isn't subject to a TPO having disappeared.

sevenhills

DTR91 said:

This is on a Persimmon house built in 2015.

I initially enquired to the council regarding the removal of the tree as there is a TPO for the area of the whole estate (not individual trees). The council arboricultural officer confirmed that this TPO only applies to existing trees in the area at the time that it was issued. As the TPO was issued in 2004 before the estate was built in 2015 this new tree would not be protected. However, we have since noticed that there is also a restrictive covenant in our deeds as follows:

'Not to cut down, damage or remove any existing tree or hedge on the property or any other plant planted pursuant to the requirements of the public authority'

So the tree was newly planted in 2015, and not of interest to the council. Sounds like its ok to cut down, sounds like a small tree with very little impact on nature.

Perhaps yould could plant another tree in a better location to keep the neighbours happy?

princeofpounds

Sounds like Persimmon don't care. They rarely do when they've finished on site; the covenants are really only there to preserve the look whilst they are selling. It's a bit of a structural legal problem in my mind, where developers insert perpetual covenants into title deeds with no actual intention of enforcing them down the line, which just leaves everyone in an unsatisfying limbo. Unfortunately nothing is ever really done about it, so the practice becomes normalised.

I would just get on and remove the tree. 99.99% you will have no problem.

Plus, with their response to you Persimmon have probably lost their right to object through estoppel.

Ganga

We bought a Bellway house 30 years ago ,it states in the deeds that " you must not cut down /remove any trees planted by the builders unless they die ,any trees must be replaced if removed through aboral or perishing " 2 large trees at the bottom of our garden are now gone but have been replaced by 2 small cherry trees , job done. 

Ectophile

You may have got the wrong answer from the council because you asked the wrong question.

The TPO applied only to trees that were there before the estate was built.  But the covenant is referring to trees planted to meet the council's requirements as part of the planning process.  Different trees.  If the original plans for the estate showed your tree, and that was part of the planning application, then the tree would be covered by the covenant.

What the consequences of cutting the tree down would be is another matter.  It depends if anyone cares enough to do anything about it.  There are plenty of old covenants on properties that nobody is interested in enforcing any more.

FreeBear

Out of interest, what sort of tree is it ?

DTR91

Many thanks for all your responses.

Yes, the tree was on the original plan for the estate so I agree it is the covenant and not the TPO directly that is the issue. 

The only concern really is whether it would cause an issue when selling in a few years if a solicitor notices the covenant and it complicates the sale. It is unlikely that anyone on the estate would care or complain about it and Persimmon handed over the estate years ago.