TPO work permission granted but with a "note"

[Andrew L]

Dear experienced colleagues,

Just had a TPO letter of approval arrive by email from my local council with an additional note, which I think is confusing.

Cut n pasted below, all identifying names etc deleted.

 

 

"Proposed works: Cherry tree ~remove any deadwood and crossing branches, and reduce the crown height by 1-2m.

Mountain ash - deadwood and remove minor crossing branches only to maintain shape and tree form.

 

Following consideration of your application, XXXXXXXX District Council, as the District Planning Authority, pursuant to powers in the above legislation, raises no objection to the above proposal as follows: Consent is granted to carry out a crown clean to one Cherry tree located within the front garden and reduce it in height by up to 2 metres. Consent is also given to remove the dead wood and crossing branches to one nearby Mountain Ash, which is all as applied for.

 

This decision is subject to any informatives shown below: (1) Works hereby permitted should be carried out in accordance with the provisions of the current edition of BS 3998 by a competent person. (2) The tree works hereby approved shall be completed within two years of the date of this decision notice.

 

Please note Neighbours may abate the nuisance of overhanging branches by cutting back to, but not beyond the boundary without necessarily having the permission of the tree’s owner. However, it would be polite to discuss the matter before starting work and you should offer back what you cut. If you are proposing to carry out any other work to a tree that is not on your own land, you should seek permission from the landowner before starting work."

 

 

In my opinion, the note after the TPO appears to imply that council permission is not required if a neighbour's tree has annoying branches and so there's apparently no need to even find out if the tree in question is subject to a TPO?!  Which to my current understanding is absolutely wrong.

 

Be grateful, as ever, for your thoughts on this

 

Andrew

[Peter 1955]

13 minutes ago, Andrew L said:

 

In my opinion, the note after the TPO appears to imply that council permission is not required if a neighbour's tree has annoying branches and so there's apparently no need to even find out if the tree in question is subject to a TPO?!  Which to my current understanding is absolutely wrong.

 

Be grateful, as ever, for your thoughts on this

 

Andrew

Unless I'm missing something, surely this is just the age old right to cut back branches which invade your " airspace" over the boundary, with the duty to offer them back to the rightful owner. Or am I being too simplistic? 

 

EDIT: Reread it. " Other work". Could be anything, hanging christmas lights for instance. Couldn't it? 

Edited January 14, 2021 by Peter 1955

[AA Teccie (Paul)]

Down to legal definitions, and interpretations to some extent..."Mr Mynors anyone" 

 

It is my understanding if a branch, or root, encroaches a boundary AND causes an actionable nuisance, e.g. impacts on the roof tiles, then LPA consent is not necessary to 'abate' said nuisance (but you can only undertake the minimum work necessary and I would recommend informing the LPA of your intentions.)

 

However, I don't think this is the OP's point, I think the "permission" the LPA refer to here is to do with landowners/tree owners permission, i.e. not LPA consent.

 

Lastly, as I understand it, 'informatives' are different to 'conditions' and perhaps they have mixed the two up (a common informative being about protected species / nesting birds.)

 

Just my "ten-penneth"..

 

Cheers 

Paul 

[Andrew L]

8 minutes ago, Peter 1955 said:

Unless I'm missing something, surely this is just the age old right to cut back branches which invade your " airspace" over the boundary, with the duty to offer them back to the rightful owner. Or am I being too simplistic? 

 

EDIT: Reread it. " Other work". Could be anything, hanging christmas lights for instance. Couldn't it? 

 

Absolutely, but my point is that when this note is tacked onto the end of a TPO permission of work, it implies that the TPO is not required: which is exactly what the householder tried to tell me when I first went to the property.

 

Andrew

 

 

[Michael h]

Yes it's just an explanation of the standard overhanging branches rule. i guess they put it in as standard to encourage people to talk to their neighbours before doing work but it's inclusion in a TPO app letter is, i agree, unnecessarily confusing.

You're right that a TPO overrules this right to cut back to boundary

 

[benedmonds]

4 minutes ago, Michael h said:

You're right that a TPO overrules this right to cut back to boundary

 

There is debate, some say the opposite is true and that the right to cut back to boundary over rules the TPO. 

[Paddy1000111]

12 minutes ago, benedmonds said:

There is debate, some say the opposite is true and that the right to cut back to boundary over rules the TPO. 

I never got to the end with those debates. Seems like it's down to the council you fall under as to what they allow. Eaststaffs council (The only easily accessible PDF info) says:

 

The following types of work are exempt from the need for consent:

1. Cutting down trees in accordance with one of the Forestry Commission’s grant schemes, or where the Commission has granted a felling license;
2. Cutting down or pruning a tree:

• which presents an urgent and serious safety risk – however you must give written notice (by letter or email) of the proposed work to the Local Planning Authority as soon as practicable after the work becomes necessary;
• which is dead – however you must give at least five working days written notice (by letter or email of the proposed work to the local planning authority;
• which is directly in the way of development that is about to start for which detailed planning permission has been granted.
• in a commercial orchard, or pruning fruit trees in accordance with good horticultural practice;
• to prevent or control a legal nuisance (you may find it helpful to check first with a solicitor);
• in line with an obligation under an Act of Parliament;
• by or at the request of certain organisations listed in the regulations.

3. Removing dead branches from a living tree

What do they mean by controlling a legal nuisance? 

[Andrew L]

13 minutes ago, benedmonds said:

There is debate, some say the opposite is true and that the right to cut back to boundary over rules the TPO. 

OK

Just sent this to my local council,,,

 

"Dear Sir

Many thanks for your recent email giving permissions to work on the 2 TPO trees identified.

 

I note that the email with these permissions also gives advice in relation to branches from neighbouring trees whose branches overhang boundaries "Neighbours may abate the nuisance of overhanging branches by cutting back to, but not beyond the boundary without necessarily having the permission of the tree’s owner."

 

Given that this note is added to a TPO grant of works, it would appear to indicate that an overhanging tree branch may be pruned back to the boundary even if a TPO applies to that tree ie that council permission is not required.  Could I please ask if this is what is intended by this note's inclusion to the TPO permission?

 

My understanding was that a tree with a current TPO in situ could only be worked on without prior permission from the local authority if:

1 It was immediately dangerous to person's or property

2 The removal of deadwood and ivy was all that was being undertaken

 

I would be very grateful if you would please clarify."

 

Let's see what they say.

 

A

 

 

[Spideylj]

Where a TPO'd tree grows over a boundary of a property, the neighbour of the tree owner has a right to apply to carry out work to the tree.  However, the landowner's consent will be needed to go onto their land to carry out the work.

 

The list that Paddy posted are a re-worded version of those that can be found in the Government guidance notes (see below) that pertain to the exemptions.  In other words when you can carry out work to protected trees without the need for LA approval.

 

My advice would be that unless there is an immediate risk of the tree failing and causing damage or harm that in all cases that you apply to carry out work.    If you think an exemption applies then make sure you document everything and photograph it.

 

The term nuisance applies in its legal sense and really means damage (although there can be other types).  As correctly said above, only work to alleviate the nuisance should be carried out and it should be demonstrated that other solutions were explored beforehand.

 

A condition is an instruction associated with the consent.  If you fail to fulfill a condition of the consent (generally called a breach) then your consent is void and you have carried out the work illegally and the LA can enforce.

 

An Informative is for information only.  A common one is for birds and bats.  This just highlights legislation.  It something to be aware of but it is not something that the LA can enforce.  For instance, if you destroy a birds nest then it would be down to the police to enforce and not the LA.

 

Tree Preservation Orders and trees in conservation areas - GOV.UK

WWW.GOV.UK

---

Explains the legislation governing Tree Preservation Orders and tree protection in conservation areas.

 

 

 

 

 

[Paddy1000111]

4 minutes ago, Spideylj said:

Where a TPO'd tree grows over a boundary of a property, the neighbour of the tree owner has a right to apply to carry out work to the tree.  However, the landowner's consent will be needed to go onto their land to carry out the work.

 

The list that Paddy posted are a re-worded version of those that can be found in the Government guidance notes (see below) that pertain to the exemptions.  In other words when you can carry out work to protected trees without the need for LA approval.

 

My advice would be that unless there is an immediate risk of the tree failing and causing damage or harm that in all cases that you apply to carry out work.    If you think an exemption applies then make sure you document everything and photograph it.

 

The term nuisance applies in its legal sense and really means damage (although there can be other types).  As correctly said above, only work to alleviate the nuisance should be carried out and it should be demonstrated that other solutions were explored beforehand.

 

A condition is an instruction associated with the consent.  If you fail to fulfill a condition of the consent (generally called a breach) then your consent is void and you have carried out the work illegally and the LA can enforce.

 

An Informative is for information only.  A common one is for birds and bats.  This just highlights legislation.  It something to be aware of but it is not something that the LA can enforce.  For instance, if you destroy a birds nest then it would be down to the police to enforce and not the LA.

 

Tree Preservation Orders and trees in conservation areas - GOV.UK

WWW.GOV.UK

---

Explains the legislation governing Tree Preservation Orders and tree protection in conservation areas.

 

 

 

 

 

You legend! If that was posted on here elsewhere I missed it. Concrete proof instead of hearsay and random website blog posts! 👌