Root protected zone

[sangmish]

I have an Oak tree which has a tpo . The tree is just outside my fence . I have 2 queries:

Firstly the lawn area within my fence which is in the root protection , I want to park my guests cars there. Just wanted to know how can i convert that area in a parking area and do I need to apply for planning permission for that.

Secondly my fence needs changing as it is on wooden posts and is rotting as they have never been changed in the last 30 years. I want to know can I cahnge my fence with like for like or can I have concrete posts and bases.

[Paul Jenks]

I'm guessing that the area would be occasional use? If so then use a membrane and cellweb solution. This will minimise the compaction whilst retaining the porosity of the ground to allow the roots to breath and moisture to percolate.

 

[ame]

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If you can use the same holes for the fence then there should be no need to damage the existing root structure.

[sangmish]

Thank you very much for your advice. But do we need to apply for a planning permission with the council to do cellweb root protection system.

[Arborist]

If the tree is subject to a preservation order or within a conservation area you would.

[Gary Prentice]

If the tree is subject to a preservation order or within a conservation area you would.

 

Are you sure?

 

Putting the requirement to get planning consent for a drive itself aside, would you need to submit a tree works application or Section 211 Notice?

 

I'm asking because I'm not sure. No-ones pruning roots, the actions aren't intended to willfully damage or kill the tree, so would there be a contravention?

 

I'll wait for some-one better educated than me to explain what case a legal department would put before a judge. I think it would be difficult to say that cell-web (or similar) when installed according to the manufacturers instructions would damage tree roots.

[Arborist]

to many ciders and fires off a answer.

If say then you could build something under permitted development within the RPA of a top tree using specialist engineering methods I would have thought you would need permission, I will find out! If I can't find out I'll ask Mr Dowson on Monday when I see him.

[kevinjohnsonmbe]

This might end up taking a tangent (and potentially getting a bit heated) but it could also throw up some interesting thoughts / opinions which may give sangmish some food for thought as to how it might be taken forward...... (hopefully)

 

So, if the roots of the tree encroach into your boundary causing an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property then it might be considered an actionable nuisance (What is ACTIONABLE NUISANCE? definition of ACTIONABLE NUISANCE (Black's Law Dictionary) and RE: define actionable nuisance)

 

From the 2015 Mynors seminar at Barcham, it was suggested (much to the horror of some of the LA representatives (+/- 60% of the audience)) that, a TPO cannot overrule a persons right to enjoy their property and that no permission might need to be sought in the case of an actionable nuisance even where a TPO tree is concerned.

 

There was a thread after the seminar which re-visited many of the topics that were discussed, including this issue: http://arbtalk.co.uk/forum/training-education/87782-barcham-seminar-charles-mynors-trees-law.html

 

What I wouldn't be clear on in this instance is wether planning permission might need to be sought for the installation of the parking area (I'm guessing that would very much depend upon the nature and extent of the works necessary to install the parking) and, if planning consent WAS required, it might not be approved BECAUSE of the incursion into the RPA.

 

If planning permission WAS NOT required (subject to the nature of the works), it might be the case that the known (or assumed) presence of the roots is presenting an actionable nuisance by preventing the free use of privately owned property - ergo, an actionable nuisance.

 

I'm not suggesting any of this should be relied upon, it's more of an open question that I have yet to resolve in my mind (or test in court - although we did recently come close!) and I'm hoping that some more experienced and qualified comment may follow.....

[Gary Prentice]

None of which helps the opening poster!

 

A good TO, a short site meeting and a clear methodology would/could make this a simple issue.

 

Probably end up being asked for a consultant's report, written method statements, the works.

[aspenarb]

There`s a bit about this in here http://arbtalk.co.uk/forum/landscaping/103578-forest-track.html

 

Bob

[kevinjohnsonmbe]

You will need planning permission for a change of use for the car parking. You may need planning permission for the fence but that is unlikely. E.g. if increasing the height of the fence if it's adjacent the highway. If you need to prune the tree, including the roots, to install the fence then a TPO application will be needed.

 

 

 

The best thing to do is speak to a planner at your LPA.

 

 

 

Regards actionable nuisance. This has never been tested in the High Court. Sun Timber is the best we have. I'd suggest sticking to that rather than risking a prosecution and a journey through the Court system which will be very expensive and you might loose. After all, the purpose of a TPO is to protect the amenity the tree provides. If you could just abate a nuisance, that would make the TPO, in part, ineffective and therefore not reflect the will of Parliament.

 

 

 

Ed

 

 

Change of use for parking....?

 

https://www.planningportal.co.uk/info/200130/common_projects/44/patio_and_driveway/2

 

Planning app for replacing a fence....?

 

https://www.planningportal.co.uk/info/200130/common_projects/20/fences_gates_and_garden_walls

 

There isn't enough info in the initial post to make such bold claims!

 

TPO application.....?

 

Not at all a forgone conclusion.....

 

Unless the homeowner specifically chooses to subjugate them self to the

"Interpretation" of the statutory requirements by a low level employee of local government.

 

Are you suggesting "the will of Parliament" is to usurp individual freedoms as protected by the Human Rights Act 1998 1998 c. 42 schedule 1 part I Article 8 Paragraph 2:

 

"...There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others...."

 

Agreed, it would be wise to consult a PO at your LPA, but perhaps not, if they choose your approach, to take too much heed of it...

 

"Never been tested" does not readily equate to legal precedent.

 

It might be, and we can only guess, that the OP has sufficient financial capital, access to representation and will to press the test button?

 

I mentioned in an earlier post that I had previously come close where the landowner I was working for had experienced such ridiculous and sustained long term obstruction from planning and tree departments that he was quite literally at the point of ignoring all the petty constraints and restrictions and taking the matter through the courts - he certainly had the means and the temperament to do so.

 

So a simple yes/no question for you Ed.

 

Abating a nuisance from a TPOd tree - application required or not (if yes, a reference to support.)

[oslac]

Providing the property is outside of a Conservation Area, it is likely that Permitted Development Rights will allow you to construct a fence (1.0metre to front and 2.0mtere to resr is usual although there are some oddities with this).

 

PD will probably allow you to construct a car parking area. So far so good and no planning is required and no communication with the LPA or TO is required.

 

The only concern here is damage to a TPO tree but if you employ a good arb consultant, there will be a range of methodology available so as not cause damage.

 

My view would be to involve a good consultant, have them, inspect the tree if they agree, ask them to prepare a methoology for the car parking and fence.

 

Follow the methodology to the letter and everything should be ok. No need to involve the LPA or TO but you have the paperwork if anyone comes calling.l