Yes tree dead with TPO

[Mick Dempsey]

I know, bit convoluted, but I was bored.

 

 

[Mark Bolam]

I’ve never seen a TPO stipulation that the tree has to be the same species before.

 

Jules?

[AA Teccie (Paul)]

I think the general presumption is "like for like, at the same site" unless stipulated otherwise in the TPO consent notice. 

[Oscuro]

Thanks all for your responses. In response to some of your question, I am based in England, Essex county.

also I did get permission originally to cut it down to 1 metre and then recently permission to completely remove but replace with another. Here is a photo of the yew tree

[nepia]

15 hours ago, Mark Bolam said:

I’ve never seen a TPO stipulation that the tree has to be the same species before.

 

Jules?

Had a Replacement Order from Epsom a few years ago that provided a selection of five species to choose from for the replacement, none of which were that of the outgoing tree!

I don't think you can grumble at that

Edited October 10, 2021 by nepia

[kevinjohnsonmbe]

On 09/10/2021 at 08:46, Oscuro said:

I had a full yew tree with TPO which was dying due to ivy suffocating it. I wrote to the council to fell it and they agreed to cutting it to 1m to allow it possibly to regrow.  After a year, there is nothing happening to the tree and I contacted the council and they agreed that the tree is dead and I can cut it down but they want me to replace it with another yew tree in the same area.
1. Isn’t the TPO relevant to that particular tree?  (yes, but if you apply for works they may be 'conditioned.'

2. So if the tree dies, doesn’t it mean the TPO dies with it? (yes, but if there is an application to remove a dead tree subject to TPO, there will likely be a condition to replace it (excluding woodland TPO.) 

3. Does anyone know what the law says about this? 

Town and Country Planning Act 1990

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate certain enactments relating to town and country planning (excluding special controls in respect...

 

4. If I have to by law to replace it, do I have to locate it in that same place, can I put it somewhere else in my garden?  If the LA require a replacement by condition (they do have the option to waive this requirement), that condition is only valid and enforceable if the tree is "...of an appropriate size and species at the same place..."

here is council’s response

 

Clearly, the yew tree is dead and can be removed. Under the provisions of the TPO a replacement yew tree is required to be planted adjacent to the position of the original tree. The size of the replacement I advise should be not less than 1m in height.

 

thanks all

There are a few elements of this which give rise to potential 'confusion' especially since the available information is sketchy.

 

Yew tree dying due to ivy?  

 

Heavily suppressed perhaps, suffering limb breakaway perhaps, but actually dying due to the ivy...?  

 

Possible I suppose depending upon the circumstances, but at best probably unlikely. If there were a picture of the tree pre-reduction that would help.  Academic anyway since that part is already done & dusted.  

 

TPO approval for a 'reduction' to a 1m stump?  

 

That also has elements of the unrealistic about it.  Who in their right mind thought that if the tree was "dying" that a reduction to 1m stump would be the best course of action? (well, obviously the LA did, but that is also, at best, a dubious expectation.)

 

Did you submit a second app to remove the 1m stump or just 'notify' the LA that you intended to?  You don't have to 'apply', just notify if dead.

 

They agreed but conditioned a replacement - that's about the only part which seems "regular."

 

If you remove it you have to replace it and the TPO applies to the replacement.

 

If you don't remove the stump and it simply decays away to nothing then the TPO dissolves when the tree decays to nothing.

 

So, your options could be:

 

Retain the stump (maybe plant a climbing rose around it and forget about it until it decays to nothing.) 

 

or

 

Pull the stump out and pony up with a replacement tree (which will be subject to the original TPO) in a close location to the original. 

[daltontrees]

18 hours ago, Mark Bolam said:

I’ve never seen a TPO stipulation that the tree has to be the same species before.

 

Jules?

Nothing in the Regulations, other than that the Cooncil can grant consent subject to conditions. The conditions could specify species. One could appeal against the condition if the species selection is inappropriate, but it would be difficult to win an appeal against a condition requiring the same species to be planted unless there wasa good reason fort that species being inappropriate.

Even where there has been an unlawful removal, the remover is only obliged to plant a suitable size and species replacement. Strictly speaking, it is for the remover to decide this, the Council could only challenge the choice on the basis of unsuitability.   But if the remover fails to plant a replacement, the Council CAN specify.

[daltontrees]

3 hours ago, Oscuro said:

Thanks all for your responses. In response to some of your question, I am based in England, Essex county.

also I did get permission originally to cut it down to 1 metre and then recently permission to completely remove but replace with another. Here is a photo of the yew tree

But you haven't answered my question about conditions of consent last year. So I will have to answer this the hard way [sigh].

 

If you got consent last year to cut the tree down to 1m, and there were no conditions attached to it and the tree then died, you did not need to ask for consent to remove it completely. I'd go as far as to say you shouldn't have asked. There is an exemption for removal of a dead tree. End of story.

 

If the consent last year said that you had to plant a replacement if the tree died as a result of reduction to 1 metre, you have to replace. The Council shoudl only have done this if it believed the tree had a chance of survival without being cut down to 1 metre AND was adamant that a tree (any tree) at this location was in the interests of the amenity of the area.

 

No conditions means the Council implicitly knew that it was a last desparate act to salavage something. It didn't work, the tree died. It is then no longer a tree and no longer protected.

[daltontrees]

2 hours ago, kevinjohnsonmbe said:

There are a few elements of this which give rise to potential 'confusion' especially since the available information is sketchy.

 

Yew tree dying due to ivy?  

 

Heavily suppressed perhaps, suffering limb breakaway perhaps, but actually dying due to the ivy...?  

 

Possible I suppose depending upon the circumstances, but at best probably unlikely. If there were a picture of the tree pre-reduction that would help.  Academic anyway since that part is already done & dusted.  

 

TPO approval for a 'reduction' to a 1m stump?  

 

That also has elements of the unrealistic about it.  Who in their right mind thought that if the tree was "dying" that a reduction to 1m stump would be the best course of action? (well, obviously the LA did, but that is also, at best, a dubious expectation.)

 

Did you submit a second app to remove the 1m stump or just 'notify' the LA that you intended to?  You don't have to 'apply', just notify if dead.

 

They agreed but conditioned a replacement - that's about the only part which seems "regular."

 

If you remove it you have to replace it and the TPO applies to the replacement.

 

If you don't remove the stump and it simply decays away to nothing then the TPO dissolves when the tree decays to nothing.

 

So, your options could be:

 

Retain the stump (maybe plant a climbing rose around it and forget about it until it decays to nothing.) 

 

or

 

Pull the stump out and pony up with a replacement tree (which will be subject to the original TPO) in a close location to the original. 

Keep me right here, please. I try to keep up with 4 separate sets of TPO law in the UK, and I sometimes get confused. On what basis does a notified dead tree removal trigger either the obligation to replant or the right of the Council to impose a condition de novo.

[kevinjohnsonmbe]

41 minutes ago, daltontrees said:

Keep me right here, please. I try to keep up with 4 separate sets of TPO law in the UK, and I sometimes get confused. On what basis does a notified dead tree removal trigger either the obligation to replant or the right of the Council to impose a condition de novo.

I added some text (green) within the original OPs question which I quoted.  I realised afterwards that that might not have been visible unless you 'expand' (read more) the original question within the post where I quoted it.

 

That green text included the link which states that a dead tree, whilst exempt from the need to 'apply', still requires a notification of intent to remove and, unless subject to a woodland TPO, would require a replacement and that the replacement takes on the former tree's TPO.

 

There are a few 'mystery' parts of the equation which would only be resolved by seeing the original application and knowing fully what happened subsequently.