Appeal against refusal to fell - direct contact structural damage

[daltontrees]

Gary, will contact you again offline. We're in the realms of discussing strengths and weaknesses of a case in public.

[5 shires]

On 20/06/2019 at 08:04, Gary Prentice said:

I've a week/ten days to submit an appeal against a refusal to fell and I'm a little unsure about a couple of issues, so I'd appreciate some comments, advice, experiences, etc.

There's an elm situated between an asphalt drive and a division fence (picture below). To either side of the drive entrance are brick pillars. and from these a double skin brick wall (@1.2-1.4m high) continue forming the boundary with the highway. The wall from the SE pillar continues, offsite, forming the boundary wall of another property.

 

The SE pillar is leaning and damaged, the first 6-8 of the adjacent wall shows historic damage and repair, with a 2-3m length having previously been rebuilt. This length includes part of the wall belonging to the neighbour. It is obvious that the root(s) from the elm are growing in contact with the wall, a fact that the LA hasn't disputed in its refusal. 

So there is an actionable nuisance, because of the damage to that part of the wall belonging to the neighbour, as well as an indication that previous damage has been repaired but whatever was done is now failing and the conflict is continuing.

 

The LA's response is:

The reasons stated for felling the elm tree within the application were as follows;

 

1. The tree is growing in conflict with the brick boundary wall of both the applicants and the neighbouring property.
2. There is evidence of historic damage.
3. Future conflict and damage are expected.
4. Actionable nuisance is present/will occur involving a third party.
5. Brick pillar to the applicants driveway has been disturbed and is leaning.
6. Life expectancy is expected to be relatively short as it is a size which commonly gets infected by Dutch elm disease.

 

 

 In response to these points;

 

1. It is noted within the application that ‘the normal requirement is to seek an engineering solution rather than to remove a protected tree’ however there has not been shown within the application any evidence that an engineering solution to this issue has been investigated to ascertain whether or not this would be feasible in this instance.
2. Damage caused to hard landscaping is not usually judged to be sufficient reason to remove a protected tree if there is another solution to the issues claimed, such as an engineering solution as mentioned previously.
3. Future conflict and damage may be avoided with a sympathetic, well designed and forward-looking engineering solution.
4. As in 1,2 and 3.
5. As in 1,2 and 3.
6. At present, this tree is not showing any signs of Dutch elm disease. It is noted that elm trees of this age and size are susceptible to Dutch elm disease. Due to this fact, elm trees of this age and size are relatively rare. As such it is not reasonable to remove a protected elm tree that is of good health and vitality as a precaution for a disease it may get in the future.

 

I'm going on site this morning to have a dig around, as much as I can, in an attempt to gauge what's going on. One problem is that I can't be digging up next door and that the verge outside is in unknown ownership. 

 

I haven't got a photo of the gate pillar but it's got a fair lean and a number of cracks. I've a suspicion that to rebuild that would entail a foundation raft mostly above ground, which would then create issues with the drive levels - but that's a secondary issue at present. The real issue that I'm struggling with is the legal issue about the wall ownership. If this only involved the clients wall reconstruction/engineering solutions would be straight forward. But, with this involving the neighbours wall too it's seems more complicated. If there is an engineering solution it's obviously going to involve demolishing all of the clients wall and some length of the neighbours. Then there's the issue of who pays what?

 

I've met a builder (the clients) on site, to try to get estimates to rebuild with, and without, the tree present, with an idea that for the purpose of the appeal I'll try to show that he costs (with the tree retained) are such that retention creates an unreasonable burden on the owner. The builder is reluctant to even provide an estimate to provide an engineering solution because of the unknowns involved. 

 

I suspect that the TO is unsure of the legalities of the issue, as in a previous refusal involving damage to a third party he was hoping that PINs would clarify it. (They didn't address that, directly, but did overturn the refusal. 

 

Normally I'd be all for doing everything possible to retain the tree, but in the circumstances I'm thinking that the legal issues and the costs are going to outweigh doing so. 

 

Thoughts please!

 

Obviously the tree was there before the wall and if they do go for amity value which looks likely I would guess they would go for a complete wall rebuild and not a patch up job and with a concrete lintel at a specified hight,some may be laughing but have seen it done and have done it myself and it works under the correct circumstances.wall is insignificant aposed to the amity value of the tree.

[Gary Prentice]

11 hours ago, 5 shires said:

Obviously the tree was there before the wall and if they do go for amity value which looks likely I would guess they would go for a complete wall rebuild and not a patch up job and with a concrete lintel at a specified hight,some may be laughing but have seen it done and have done it myself and it works under the correct circumstances.wall is insignificant aposed to the amity value of the tree.

Looking at the brick type, of the original wall- not the engineering type used in the repairs, I'm not sure that the tree is older, or that much older, than the wall tbh. 

 

There's no chance of patching the length of wall within the owners property. It looks like any supporting pile/piers would have to be next door, simply because of the roots and root mass. In fact, foundation locations are looking to be the major issue. 

[Gary Prentice]

Due to a number of reasons I missed the appeal submission deadline, we (the client) hasn't been able to get the wall demolished to demonstrate the root locations etc, etc. 

 

Anyway, I looked in today and.... 

Half the crown is sans foliage and the rest is yellowing and browning. I pointed out a couple of yellow leaves to the TO at the last site meeting and suggested that they may have been due to DED . 

 

I've noticed a very rapid defoliation of a couple of other elms locally due to, I suspect, DED.  The spread of the defoliation is much more rapid than I remember from years ago, when some trees kept a live crown for a number of years before finally dying. Maybe drought stress is contributing to the decline? 

[kevinjohnsonmbe]

12 hours ago, Gary Prentice said:

Due to a number of reasons I missed the appeal submission deadline, we (the client) hasn't been able to get the wall demolished to demonstrate the root locations etc, etc. 

 

Anyway, I looked in today and.... 

Half the crown is sans foliage and the rest is yellowing and browning. I pointed out a couple of yellow leaves to the TO at the last site meeting and suggested that they may have been due to DED . 

 

I've noticed a very rapid defoliation of a couple of other elms locally due to, I suspect, DED.  The spread of the defoliation is much more rapid than I remember from years ago, when some trees kept a live crown for a number of years before finally dying. Maybe drought stress is contributing to the decline? 

If time permits then, and if no pragmatic compromise can be achieved, maybe just allow nature to take its course, reducing as hazard arises until there is no tree left. Then rebuild wall at leisure without the constraints and re-planting conditions...

[daltontrees]

20 hours ago, kevinjohnsonmbe said:

If time permits then, and if no pragmatic compromise can be achieved, maybe just allow nature to take its course, reducing as hazard arises until there is no tree left. Then rebuild wall at leisure without the constraints and re-planting conditions...

Even better, excise the infected parts,  ringbark or remove the whole tree right away or it will become a breeder and aid a local outbreak of DED. Or is this an area where there is no attempt made to protect elms? 

[Gary Prentice]

19 minutes ago, daltontrees said:

Even better, excise the infected parts,  ringbark or remove the whole tree right away or it will become a breeder and aid a local outbreak of DED. Or is this an area where there is no attempt made to protect elms? 

'no attempt to protect elms' , what elms? There's barely any around to protect. Off the top of my head I couldn't identify more than maybe ten within five miles of any size/ageclass - not even coppice or self seeded saplings.

 

 

20 hours ago, kevinjohnsonmbe said:

If time permits then, and if no pragmatic compromise can be achieved, maybe just allow nature to take its course, reducing as hazard arises until there is no tree left. Then rebuild wall at leisure without the constraints and re-planting conditions...

This came his morning.

A new application is required but due to the change in the trees circumstances as described, this time, the consent will be issued to fell.

Regards,

 

 

I'll resubmit to fell, hopefully get the paperwork through in a few weeks and the client can get on with what he needs to do promptly. Personally I have no problem with a replanting condition, two neighbouring ash, in adjoining properties, will soon go so replanting is important. The photo illustrates the extent of dieback of the canopy, 4-6 weeks back there was no real symptoms of infection.

 

 

I'm glad that this one is more or less put to bed, because I've a Dawn Redwood in a conservation area, with a TPO, situated between two adjacent driveways. The owners drive is cast-in-situ concrete which is all broken up and uplifted, the neighbours asphalt/tarmac drive has small cracks and slight distortion/uplifting. The canopy is <1m from the neighbours house, the owners house is a bit more distant.

 

In time the stem will begin to encroach over the neighbours drive, physically restricting its width.

 

It's a lovely prominently visual tree,  but a prime example of wrong tree/wrong place. It'll be an interesting case to pursue 

[Wonky]

I’ve seen this tree, go from a small part of a branch to this in a few wks (3ish) and it’s getting a lot worse.. I’ve sent this pic to the TO, I wonder how long it takes them to do somthing. Here they are actively taking down DED, they ring bark them first, this gives them some more time so it don’t spread through the tree roots in to the adjacent trees.
It’s this time of yr it’s very noticeable. I will see if I can get a pic of the tree down the road that’s been ringed

[Wonky]

Here is the other tree, ring barked, best pic I could get... sitting in my car [emoji23]

[Arborowen]

Where are these DED trees? Eastbourne? With regard to OP DED will likley finish the tree of in a summer or two. Looking at the extent of infection. If it's been ringed, it's for the chop. I've sent alerts to EBC a number of times of late with no reply and no action. I don't cut (professionally [emoji6]) anymore so no conflict of interest.