TPO Replacement trees

[oslac]

A bit of a conundrum:

 

Permission has been granted to fell a TPO tree with the condition that a replacement tree is planted prior to the TPO tree being felled. All sounds normal and above board:

 

If the replacement tree is planted before the TPO tree has been removed, does the replacement tree carry the TPO? If so, then we have the situation when two trees are protected by the same TPO (no revocation of TPO on existing tree and the Order only refers to one tree). This is further complicated because, if I then decide not to fell the TPO tree, we have a legal limbo.

 

In addition,, if the so called replacement tree has been planted before the TPO tree is removed, how would it be legal to transfer the TPO from the existing TPO tree to the new tree without serving a new TPO on the replacement tree. The replacement tree would now be an existing tree as it existed prior to the removal of the TPO tree.

 

My thought is that, firstly the condition is not enforceable, secondly the LPA cannot transfer the TPO from the existing tree to the replacement tree and thirdly, the council are therefore required to serve a new TPO on the replacement trees.

 

Does anyone have an opinion?

[kevinjohnsonmbe]

Just seems odd, and possibly an attempt at an administrative short cut without realising the potential consequences?

 

Wouldn't it be "normal" to expect the condition to specify that the replacement tree should be planted as close as is reasonably practicable to the preceding tree? Not possible or practical if existing TPO tree still retains it's position and the act of felling / processing may be a threat to newly planted tree.

 

Either the felling is justifiable on arb / risk terms and the application is approved or it isn't. Surely the condition follows permission not the other way around??

[Chris at eden]

Trees planted pursuant of a condition are not automatically protected by the original order. The LPA would either have to vary the order or serve a new one.

 

Trees are only protected by the original order if they were, felled in contravention, felled because they were dead, or felled due to an immediate risk of serious harm (i.e. they were exempt due to condition).

 

I'm not convinced they can condition that you replant before felling either although I'm not sure about this. I would appeal the condition just to see what happens.

 

Regards

[Roz]

A council can place any condition on a DN...it would be normal to place a condition on that the replacement is planted within the next growing season and state the season...eg. 2016-2017. Also as you are not allowed to create a 'new animal' in terms of the TPO the replacement usually goes within the same vicinity of the one being felled therefore it is highly likely to be in the way and make the job of felling harder....no common sense there.

 

Chris is right the replacement is not automatically covered the TPO needs to be varied to reflect the new tree.

[Thesnarlingbadger]

Just out of curiosity why does a tree have to be planted prior to the one being felled? Surely it would make sense to remove the original then replant as close as possible after? Meaning your not putting a new tree near to a work zone where it may get damaged.

I may be ignorant here but whenever I have had to replant due to a TPO being removed it's always been original down then replant ASAP (sometimes on the same day).

 

 

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[Chris at eden]

Just out of curiosity why does a tree have to be planted prior to the one being felled? Surely it would make sense to remove the original then replant as close as possible after? Meaning your not putting a new tree near to a work zone where it may get damaged.

I may be ignorant here but whenever I have had to replant due to a TPO being removed it's always been original down then replant ASAP (sometimes on the same day).

 

 

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Asking for the replant on the same day is over the top in my opinion. Remember you have the option to appeal the condition or any resulting TRN at which point the PINS turnaround is 27 weeks I think. They are supposed to give a reasonable amount of time for replanting which is why I think the condition to replace before felling is inappropriate.

 

Cheers

[Thesnarlingbadger]

Asking for the replant on the same day is over the top in my opinion. Remember you have the option to appeal the condition or any resulting TRN at which point the PINS turnaround is 27 weeks I think. They are supposed to give a reasonable amount of time for replanting which is why I think the condition to replace before felling is inappropriate.

 

 

 

Cheers

 

 

That's what I thought. I've never been asked to replant before removal. Weather or not the replanting the same day was due to time of year and they wanted it done and not left to long. It's only happened once and was several years ago now, for a company I previously worked for. Cheers for the reply.

 

 

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[Chris at eden]

A council can place any condition on a DN...it would be normal to place a condition on that the replacement is planted within the next growing season and state the season...eg. 2016-2017. Also as you are not allowed to create a 'new animal' in terms of the TPO the replacement usually goes within the same vicinity of the one being felled therefore it is highly likely to be in the way and make the job of felling harder....no common sense there.

 

Chris is right the replacement is not automatically covered the TPO needs to be varied to reflect the new tree.

 

They can use any condition as long as it passes the six tests. This is why I think planting prior to felling is a no no, I don't think it passes test 1 and 6, i.e. necessary and reasonable in all other aspects.

 

I spoke with a PINS inspector about the positioning a couple of years ago. What the regs say is at the same location, not in the same location which to me means the same address not the same spot. He seemed to think it was a reasonable approach.

 

Cheers

[Chris at eden]

That's what I thought. I've never been asked to replant before removal. Weather or not the replanting the same day was due to time of year and they wanted it done and not left to long. It's only happened once and was several years ago now, for a company I previously worked for. Cheers for the reply.

 

 

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From the LPAs perspective they want them in and signed off. Its a pain when you have to start chasing them up at a later date.

[oslac]

The original TPO tree (two trees in fact) have been given approval for removal to facilitate a proposed development. One of the trees is in in such poor condition that it has been given a U category (BS).

 

The replacement trees do not need to be in the same spot as the trees approved for removal but can be planted near by. In this case, nearby means a few metres away.

 

So if the replacement tree does not carry the TPO (can anyone point me towards the legislation on this point), what is the purpose of the condition to replace a tree unless the council have it in mind to then serve a new Order on the two newly planted trees.