Another 'hypothetical' legal question.

[Gary Prentice]

Does a TPO application have to determined on the reasons given in the application only? Ignoring other factors that may be relevant but omitted in the application. 

 

For example, it a tree owner has, say, raised the soil level around the tree by two or three metres and the LA is threatening prosecution for a contravention, but the tree was in such poor condition/dying (before the hypothetical said grade change) that an application to remove it would have to be consented - is the LA forced to consider it's condition only? 

 

All purely hypothetical of course.

 

 

Edited June 23, 2018 by Gary Prentice

[daltontrees]

The Guidance says that

 

When considering an application the authority is advised to:

• assess the amenity value of the tree or woodland and the likely impact of the proposal on the amenity of the area;
• consider, in the light of this assessment, whether or not the proposal is justified, having regard to the reasons and additional information put forward in support of it;
• consider whether any loss or damage is likely to arise if consent is refused or granted subject to conditions;
• consider whether any requirements apply in regard to protected species;
• consider other material considerations, including development plan policies where relevant; and
• ensure that appropriate expertise informs its decision.

So I suppose it matters a little what reason has been given for removal. But not much.

 

And one has to bear in mind that removal of a dying tree would give rise to a replanting requirement. Allowing removal in the knowledge that replating will follow would I suspect be a persuasive consideration for a Council.

 

The broad answer is that the Council must and can take a lot of other things into consideration than the reasons given for the application. The term 'material considerations' is used in a relatively narrow sense in Planning law, but if its meaning extends outwith planning law here, it means anything that's relevant and important enough to be important, and could be anything at all that meets that vague test.

 

A prosecution for pre-application damage or destruction of the tree due to root burial would not die with the tree. Quite the opposite, probably. Such a  prosecution could be under indictment for 'wilful' damage or destruction. And there would have to be a public interest in prosecuting. If there was a record of poor condition of the tree before burial and if its natural demise was inevitable, and/or the proof of wilfulness is going to be problematic, the Council could do a lot worse than consent and require replanting, because prosecution would be pointless.

 

If you're hinting that the Council's consideration of the application might be swayed by its wariness of capitulating to loss of the tree, it shouldn't be. The damage (if any) caused burial can't be undone. As long as the Council has evidence of condition prior to consenting to removal, prosecution and replanting are two separately pursuable matters. It seems to me the Council shouldn't take into account the threat of prosecution when considering the application. I'd go as far as to say it's not a 'material' consideration. I rather think it's an immaterial one.

[Gary Prentice]

14 hours ago, EdwardC said:

From one visit how can anyone assess a tree as declining or dying. Maybe the tree had low vitality, and is still showing the evidence of that, but is now improving and has good vitality

Sorry Edward,  I didn't make it clear, but I've a long history with the site, ten years or more.

 

Plenty of food for thought, thankyou

 

[daltontrees]

On 23/06/2018 at 17:23, EdwardC said:

No. The LPA should assess the amenity of the tree and determine if the reasons put forward to support the application outweigh the loss of amenity.

 

As noted above, and in Jules reply, the LPA has to weigh the amenity value of the tree, against it's condition/reasons put forward to support the application. Which is different from just considering the reasons put forward to support the application. If all an LPA had to consider were the reasons put forward to support the application every application would be approved.

 

The trees poor/dying condtition is your assessment. The LPA or entitled to come to a different view, and must consider the loss of amenity. 

 

What's dying, or come to that, declining.

 

There is no exception anymore for dying, so it doesn't follow the tree must be felled.

 

How many times do you see a report which says tree so and so is declinig/dying. Dying/declining is a physiological function over time. From one visit how can anyone assess a tree as declining or dying. Maybe the tree had low vitality, and is still showing the evidence of that, but is now improving and has good vitality. The exact opposite of dying/declinig.

 

Has anyone done even the most basic of assessments of vitality on the application tree.

 

Understanding how trees live, and die, is fundamental to arboricuture, but is not understood, or taken into consideration, by the vast majority of practitioners.

 

So here's something off-topic to ponder. Trees are immortal if their environment is unchanging. The only thing that kills them is a change in their environment leading to an imbalance, i.e. decline, in existing energy reserves against immediate need, resluting in a spiral of reducing vitality, and eventually death. Discuss.

 

Also to ponder; what do you get if, after a change in a trees environment, maybe several changes, it can rebalance it's energy reserves to meet its needs

Agreed on the sentiments, but the thing that kills trees around here is people. With chainsaws. A few of them couldn't spell TPO, nevermind advise on the implications of one.

[Jon Heuch]

On ‎23‎/‎06‎/‎2018 at 17:23, EdwardC said:

The trees poor/dying condtition is your assessment. The LPA or entitled to come to a different view, and must consider the loss of amenity. What's dying, or come to that, declining. There is no exception anymore for dying, so it doesn't follow the tree must be felled.

 

How many times do you see a report which says tree so and so is declinig/dying. Dying/declining is a physiological function over time. From one visit how can anyone assess a tree as declining or dying. Maybe the tree had low vitality, and is still showing the evidence of that, but is now improving and has good vitality. The exact opposite of dying/declining. Has anyone done even the most basic of assessments of vitality on the application tree.

 

Trees are immortal if their environment is unchanging. The only thing that kills them is a change in their environment leading to an imbalance, i.e. decline, in existing energy reserves against immediate need, resluting in a spiral of reducing vitality, and eventually death. Discuss.

 

>> Well you did raise a red rag to a bull......

 

What can one tell from a single visit to a tree......probably a lot less than if one has had the benefit of two or more visits with seasons and time intervening, but we are often asked for our opinions and decisions may need to be taken, rightly or wrongly, from individual visits.

 

I don't need to list observations that may suggest a tree is in decline. Dieback from Chalara is an obvious topical one. Dieback doesn't mean it is going to die but it is reasonable, based on current evidence, that more than 50% may die (i.e. more likely than not)…..but it's probably better to wait and see now.

Weeping stem wounds on a sickly horse chestnut...….well how long a list do you want?

I doubt whether you can justify your statement that trees are immortal....we have very few really old trees and, using your argument, because the environment is constantly changing - whether it be wind, drought, flooding, competition, insects and disease etc. Those old trees that we do have are only a few hundred years old with very very raw exceptions.

 

[daltontrees]

29 minutes ago, Jon Heuch said:

I doubt whether you can justify your statement that trees are immortal....we have very few really old trees and, using your argument, because the environment is constantly changing - whether it be wind, drought, flooding, competition, insects and disease etc. Those old trees that we do have are only a few hundred years old with very very raw exceptions.

 

I don't think it's a hypothesis, more a debating point. But I'd say many trees would live much longer if we didn't mess them about. They're all individuals, though, with minor genetic variations that sort the weak from the strong, and those that can adapt to changing environments from those that can't.

 

And trees die of old age when they can't maintain themselves by an ever-thinning annual increment.

 

If a naturally occurring compression fork doesn't finish them off first

[Gary Prentice]

20 hours ago, daltontrees said:

Agreed on the sentiments, but the thing that kills trees around here is people. With chainsaws. A few of them couldn't spell TPO, nevermind advise on the implications of one.

Chainsaws don't kill trees. People with chainsaws kill trees.....  Chainsaws just get a bad press! 

 

 

[Jon Heuch]

12 hours ago, EdwardC said:

Maybe I should have defined immortal a little more tightly. So, for immortal, read biologically immortal.

Do they. Don't confuse chronological aging with senescence, that is biological aging.

If you think you have clarified what you meant, it hasn't come clearly across!

 

What do you mean?

 

Immortal (biological or otherwise) means "living forever; never dying or decaying". Well, we know trees decay whilst still remaining alive so that is one weakness. Trees don't live forever - can you point me in the direction of single tree that is an example? There are of course some very long lived trees about - some single stem specimens (red woods that are large & have lots of rings). No doubt they are very resilient. There are groves of trees where vegetative regeneration has led to new shoots, whilst the older shoots have decayed. The organism has effectively stayed alive even though older parts have died. Not very common though. Most trees however accumulate dysfunctional tissue. Most of the trees we know in the UK have to generate new tissue for conduction every spring - the older xylem becomes dysfunctional due to embolism. An obvious feature in our countryside is the die back of oak. Quite what causes it is a matter for discussion but the tree cannot support its mass of leaves from the conducting tissue and roots available. I am sure most of us have found completely dead oak trees around. There may be many reasons for death......

[daltontrees]

14 hours ago, EdwardC said:

Do they. Don't confuse chronological aging with senescence, that is biological aging.

No confusion. They do. Quoting from "Trees: Their Natural History"

 

"As a tree grows it gets to a point where the canopy reaches a maximum size. The tree cannot get taller, owing
primarily to water needs (Chapter 6), and the side branches cannot grow longer because they become too expensive to support. So the number of leaves a tree can hold becomes more or less fixed, which means that the tree’s food production also becomes fixed. But each year the tree needs to add a new layer of wood under the bark, and as the tree gets bigger the amount of wood needed to coat the whole tree goes up each year, just like putting together a set of Russian dolls where each new doll on the outside has to be bigger. Moreover, as the tree gets bigger the amount of food needed for running the tree (respiration) increases, rising to two thirds of the sugary income in a mature tree. The tree then becomes like a bank balance where the income (food) is fixed but the outgoings (respiration and new wood) keep rising. The tree compensates for a time by producing narrower and narrower rings of wood but there comes a point where they cannot get any narrower. Something has to give, which usually means the loss of the topmost branches, which are under most water stress. The result is a stag-headed tree, so named for the antler-like dead branches sticking out of the top of the canopy. This is the start of the end because losing branches means fewer leaves and so less new wood, and the beginning of a downward spiral."