Is non determination of a section 211 a legal way of dismissing it?

[Paul73]

Thanks Dan. Thanks Julian. I agree,  its a bit iffy. I am a bit wary to go diving in and upsetting the LPA but I am also keen to not get walked over by officials overestretching their legal powers, especially if it gets the owners tangled up in being officially woodland owners when they thought they had a scrubby field with a huge hedge.  Hearing the opinions and experiences of others on here some who are more experienced than me, seems a good first step. 

 

I am very grateful for the paragraphs to cite. Thanks gents.

 

I have in the past found it a bit frustrtating to find the FC and the LPA being two such diffrent entities who are sometimes wary of stepping on each others' toes. It means that sometimes one will not jump till the other has and you get passed back and forth. Trees in fields  (not copses and small strips of wood) really should not be the FC's business I feel. 

[Paul in the woods]

Hopefully someone more knowledgable can advise, but you mentioned hedge in an earlier post. I note you may need permission from the LPA to remove a hedge as well. Something else to think about?

Edited February 27, 2021 by Paul in the woods

[Paul73]

Yeah, its not a maintained hedge. So it will not be treatable a s a hedge, its really a double screen.

 

It is a very windy spot for some reason -the way the hills work I think. We have had problems at the other (lower) end of the field with 90+ foot leylands collapsing over a footpath. When we took some  broken and damaged  ones down, others soon followed when they lacked group shelter. I was genuinely surprised and I have been in a business a while and thought I was careful about aerodynamics. Wind is an issue here. Someone planted these trees as a double row to stop wind, not as a wood. They have then grown out over a main A road  just where it narrows between walls. (The Leylands are all one sided, leaning over the road, the Poplars are all grown somewhat lions tailed to avoid the Leylands).  They are rather co-dependent. They are just starting to look scary.  I would say they are not imminent (one small branch failure last year), so I don't think we can do the imminent danger exemption but with a group this size over that road, you need to plan ahead I think not fire fight. 

 

It might be possible to safely remove the trees together -each Leyland with its accompanying Poplar, one or two of each at quarter. I do feel for the owners. 

[Dan Maynard]

It is definitely a field and not just a really really big garden? I think we've had this question before and not sure we really got an answer where you draw the line.

[Jon Heuch]

20 hours ago, Paul73 said:

Does anybody know if a felling license is a prerequiste for a section 211 or just a prerequisite for felling more than 5 cubic metres a quarter? 

Can a notification registered as valid be legally "non determined?" without "no objection" by default being the outcome?

Paul

 

I have read what has been posted to date & I can see that the lack of clear joined up legislation means you think you are falling into a legal crack. It is clear that you could have applied for a felling licence (and you need to do so if you are planning to go over the volume limit, provided you are not in a domestic garden) and if you had done so you could have avoided the local authority. However, what the local authority has done is simply wrong. The whole s211 notice thing needs to be read alongside s211(3). Provided you can prove that a) you gave notice to the council clearly stating what you intend to & to which trees and that you acted between 6 weeks and 2 years after serving notice AND provided no TPO has been served you have a defence if charged. In such circumstances the local authority cannot "touch" you. If they really are incompetent and starting proceedings a simple letter stating the above should puncture their bubble. If things really did proceed to court best to get a lawyer but I can anticipate some serious egg on face.

 

So, forget the non-determination letter; you could just write back and thank the local authority for confirmation that they have been notified on a particular date. They have already confirmed that they have been notified by writing to you, so this is not compulsory. All you need to do is tell them, and you've done that.

 

You could then proceed to fell < volume limit every quarter. Nothing either the local authority can do other than serve a TPO. Nothing the Forestry Commission can do either, but probably best to take some time stamped photos of your progress. Getting a felling licence? Yes, the paperwork reflects their interests in woodland management so you will be asked for areas of land involved and you will be asked as to how the area will be restocked and it will go out for public consultation on part of their website that really was quite difficult to find even when you are looking for it.  But in cases like this, where the FC have no real interest, they may well turn it over to the local authority for comment.......!

 

If you feel you are in a mine field, you are not alone!

[daltontrees]

2 hours ago, Jon Heuch said:

If you feel you are in a mine field, you are not alone!

Jon this is what I have been saying, but there's one wee point to be added. Had the OP gone straight to the FC  it might not have avoided the Council because the FC might automatically consult with the Council on any FL application in a CA. It doesn't have to, but it might.

 

I believe there has always been a deliberate effort to align the Planning and Forestry Acts so that the need for double applications can be avoided in some situations. I think if the Council had come back within a week of notification and directed the notifier to the FC it would have appeared more reasonable but it still would have been legally wrong to try and prevent the works by doing so. And, after all, what does non-determination really mean? Determination is making a decision on an application, but  s211 isn't  an application, it's a notification. All we can possibly surmise is that the Council means it hasn't made a decision about whether to TPO or to agree to the works. It might be possible to say that it is not trying to stop the works and is merely being helpful by flagging up the possible breach of Forestry Act controls. Or it might just be hoping to see restocking secured through a FL.

 

The following generalities can be stated, though (for England).

1. In TPOs a Council consent does not remove the need for a FL. A FL application will result in either (i) mandatory consultation with the Council and, if objected to but otherwise the FC would grant it, will be referred to the relevant Minister to be dealt with under Planning legislation or (ii) referral of the FL application to the Council to be dealt with under Planning legislation. Any consent arising does not require a FL. Thus, a TPO consent only trumps a FL requirement when it has been granted following a FL application. Just to be clear, a TPO consent obtained by direct application to the Council does not trump the need for a FL.

2. In CAs a Council agreement or inaction on a notification does not remove the need for a FL. A FL application does not have to result in consultation with the Council. If a FL is granted no CA notification is required.

 

The absurdity seems then to be that a FL in a CA could be granted in a way that would deny the Council the option of protecting the trees with a TPO.

And the strange possibility that we have here that a CA go-ahead can only be implemented without a separate FL at 5 cube a quarter and then must stop after 2 years. And a TPO consent can be obtained but could still need a FL or have to be implemented at 5 cube a quarter (indefinitely).

 

 

Edited February 28, 2021 by daltontrees

[Jon Heuch]

55 minutes ago, daltontrees said:

the FC might automatically consult with the Council on any FL application in a CA. It doesn't have to, but it might.

 

I believe there has always been a deliberate effort to align the Planning and Forestry Acts so that the need for double applications can be avoided in some situations. .

 

The following generalities can be stated, though (for England).

1. In TPOs a Council consent does not remove the need for a FL. A FL application will result in either (i) mandatory consultation with the Council and, if objected to but otherwise the FC would grant it, will be referred to the relevant Minister to be dealt with under Planning legislation or (ii) referral of the FL application to the Council to be dealt with under Planning legislation. Any consent arising does not require a FL. Thus, a TPO consent only trumps a FL requirement when it has been granted following a FL application. Just to be clear, a TPO consent obtained by direct application to the Council does not trump the need for a FL.

2. In CAs a Council agreement or inaction on a notification does not remove the need for a FL. A FL application does not have to result in consultation with the Council. If a FL is granted no CA notification is required.

 

The absurdity seems then to be that a FL in a CA could be granted in a way that would deny the Council the option of protecting the trees with a TPO.

And the strange possibility that we have here that a CA go-ahead can only be implemented without a separate FL at 5 cube a quarter and then must stop after 2 years. And a TPO consent can be obtained but could still need a FL or have to be implemented at 5 cube a quarter (indefinitely).

 

 

Julian

There are slightly bigger guns at play: agriculture & forestry don't want to get caught up in the planning regime, which is focused on "development". If you want to get into the meat of that interface look at "permitted development" rights that cover agriculture & forestry. .....it's great for potential disputes for non-farmers and non-foresters starting to develop land.

 

The interaction of the FC & local authority is slightly more nuanced than you suggest; the FC want to be able to issue licences for felling commercial crops. If you have a 50 year old crop of pine in Surrey, the FC don't want felling to be restricted by planning. if the trees are non-commercial and the applicant has clearly no interest in restocking and long-term forestry it's a different matter. The FC would probably be happy to let the LA get involved. Careful reading of s15(1) of the Forestry Act 1967 is required as there are two clauses - notification and referral. Clauses 15(2) and 15(3) then come into play depending upon the track taken by the FC. Whilst you describe this, the nuance about the trees and the FC interest is missing.

 

One important consideration with regards to TPOs and Felling Licences is that there is a small box on the felling licence form asking whether there is a TPO on the trees in question. Ignore it and the FC may issue a felling licence that is NOT overriding the TPO. You heard that right. Or more clearly, the felling licence process does not involve consultation with the local authority. You can have a felling licence (& I have heard of one prosecution where a new purchaser inherited the felling licence from the the previous landowner) which does not allow tree felling where a TPO applies. The felling licence always says this, but some consultants talk about one "trumping" the other. They don't. Both sets of rules apply, with separate exclusions, and the cross overs are defined. Remember too that felling licences cover felling & there are key exceptions that mean that arboriculturists may have little experience of FLs; if you want to prune lots of trees without any felling you will never need a felling licence. if you want to fell lots of trees in domestic gardens you won't need a felling licence.

 

May the FC consult with a local authority where there is no TPO? It would probably take an aware forestry officer to find out the trees were in a Conservation Area if they were not told in the application form. The FC do not generally check on planning status and will issue felling licences without any knowledge of TPOs etc. Remember felling licences can be granted to the likes of the Highways Agency for trees along a major road......miles and miles, through several different local authorities. It can get even murkier as the a FL should only be saught on land under the control of the applicant (or their agent), but they may, by mistake possibly, cover land in private ownership......so a landowner can find themselves with a FL even though there they have no knowledge of the application process and no knowledge whether the applicant ticked the TPO box or not.....that's when life gets interesting (for lawyers!)

[daltontrees]

Jon, good to hear about it from direct experience. I have enough bother keeping up with the new scottish legislation (written, seemingly, by a confused 10 year old) and the way it is panning out.

 

Are there conditions and qualifications in english FLs that state that the license does not override undisclosed TPOs?

[Jon Heuch]

1 hour ago, daltontrees said:

Jon, good to hear about it from direct experience. I have enough bother keeping up with the new scottish legislation (written, seemingly, by a confused 10 year old) and the way it is panning out.

 

Are there conditions and qualifications in english FLs that state that the license does not override undisclosed TPOs?

I will have to look at the specifics of the last one I did, but not so much a condition as a bloody big label on the front page stating the same. You would either have to be blind or have the backing of an AA Registered Consultant who tells you that a felling licence "trumps" a TPO (I'm not jesting) to think you have permission to fell, when you do not.

[Paul73]

Thank you Jon for your input.  It certainly sounds like a mess and I can see why the two entities want to keep each other happy without having to change their rules.

 

I am still not sure what to do. My biggest concern is foisting a lot of replanting conditions on my clients or changing the land classification. I am imagining it could affect the value of the land. Urban greenfield sites are valuable as assets even if you do not plan to develop them, urban woods are just holes in the pocket.

 

I don't really know enough about forestry to know if I  will have any chance of gettong a license to "deforest" the "hedge" if I apply for it and I can tell that the FC are not much intereted in me when I call them. Arb is not forestry and when we do woodlands, it is usually liability issues with roads, or improving woodland held for amenity or sporting purposes. Timber crops are about the last thing on our list. They are just not interested in us. LPAs usually view us as poachers to their gamekeepers and it can be hard to get them to work with us collaboratively to solve long term problems when they are mostly worried about having to deal with an angry entitled electorate ringing them up and complaining when we actually do something that makes a change.