Removing Compromised Trees within an RPA

[Treerover]

Unusually, within weeks of my last totally separate solicitation from the greater minds, I find myself once again in need of some advice, all be it hopefully rather more straightorward….

 

I have a customer who is on the final stages of completion of their development ie build completed, paving done, all perimeter walls in situ .

 

It has come to light that 3 medium sized trees not individually protected but within the RPA have been found to have major structural defects . Extensive basal cavities to one, Inonotus present to a large extent low down on another (Ash) and another showing significant die back throughout crown on the other.

 

My question is this, can we remove these trees without requiring consent?

Or, do I need to give notice to the planning officer who sanctioned the development based on the pre requisite of the RPA ?

 

Ultimately there is absolutely no question that these trees are unsustainable due to their condition, but it is whether we might be in breech of any planning caveats should we not make any pertinent parties known of our intent .

 

 

It does not lay within a conservation area .

 

Can we remove these on a 5 day notice which I realise normally is relevant to trees within a conservation area or do we even need to do that , given the RPA has been adhered to throughout the build ?

 

Any guidance would be greatly appreciated [emoji847]

 

 

[Pete8347]

One thing I would do is check all the plans and any landscape drawings or reports submitted as part of the planning process. If these trees are mentioned anywhere as being retained then to remove them would essentially be going against any planning consent.

Interesting one with the Rpa and not sure if the 5 day rule would apply here. If your local tree officer is as helpful as mine I'd suggest a quick email to clarify.

[Treerover]

One thing I would do is check all the plans and any landscape drawings or reports submitted as part of the planning process. If these trees are mentioned anywhere as being retained then to remove them would essentially be going against any planning consent.

Interesting one with the Rpa and not sure if the 5 day rule would apply here. If your local tree officer is as helpful as mine I'd suggest a quick email to clarify.

Thank you for your suggestions Pete.

[AA Teccie (Paul)]

The RPA issue is incidental, with the exception of possible Planning Conditions (to be checked), so provided no TPOs and not Conservation Area, and you have the owners consent, you can proceed.

 

The 5-day rule applies to 'dead trees' only I believe.

 

If TPO'd - Trees deemed 'dangerous', presenting an imminent safety issue, can be removed under the exception (but the onus si upon you to prove this if challenged) but most will follow the normal TPO application route. 

 

Hope this helps.

Paul

[daltontrees]

When you say RPA, do you mean CA?

 

The normal situation is, any works implicit or explicit in the approved application don't need separate notification. It is also very common for permission conditions to say no trees are to be touched during development.

 

If it's a CA and they removals are not mandated by the planning permission, the way forward is to see if the permission conditions contain an approval mechanism for additional tree works. If so, use that. If not, it's normal CA rules. 

 

Best to document for client protection whether the tree condition is wholly or partly due to the works that have taken place around them. Remember, if it's a CA you don't have to give a reason for the works, but it sure as heck helps if you volunteer them when you notify.

[daltontrees]

4 hours ago, AA Teccie (Paul) said:

The RPA issue is incidental, with the exception of possible Planning Conditions (to be checked), so provided no TPOs and not Conservation Area, and you have the owners consent, you can proceed.

 

The 5-day rule applies to 'dead trees' only I believe.

 

If TPO'd - Trees deemed 'dangerous', presenting an imminent safety issue, can be removed under the exception (but the onus si upon you to prove this if challenged) but most will follow the normal TPO application route. 

 

Hope this helps.

Paul

The 5 day rule only applies to TPO'd dead trees. Does not apply in CAs.

[AA Teccie (Paul)]

44 minutes ago, daltontrees said:

The 5 day rule only applies to TPO'd dead trees. Does not apply in CAs.

Hi Jules, I hope you're well.

 

My interpretation of the Planning Portal is that the dead tree 5-day rule applies equally to TPOs and CAs

 

What other types of tree work do not require a section 211 notice?

A section 211 notice is not required where the cutting down, topping, lopping or uprooting of a tree is permissible under an exception to the requirement to apply for consent under a Tree Preservation Order.

 

This is only my interpretation, not a definitive statement.

 

Of course it may be that Scotland legislation differs.

 

 

Edited November 18, 2021 by AA Teccie (Paul)

[daltontrees]

On 18/11/2021 at 14:48, AA Teccie (Paul) said:

Hi Jules, I hope you're well.

 

My interpretation of the Planning Portal is that the dead tree 5-day rule applies equally to TPOs and CAs

 

What other types of tree work do not require a section 211 notice?

A section 211 notice is not required where the cutting down, topping, lopping or uprooting of a tree is permissible under an exception to the requirement to apply for consent under a Tree Preservation Order.

 

This is only my interpretation, not a definitive statement.

 

Of course it may be that Scotland legislation differs.

 

 

I interpret the Regulations differently. The CA exemption is in Reg 15 which exempts work "in the circumstances mentioned in regulation 14.". The circumstances in Reg 14 are that "Nothing in regulation 13 shall prevent... the cutting down, topping, lopping or uprooting of a tree ... which is dead;" Regulation 13 relates only to TPOs. The special 5 day rule in Reg 14 can only only apply to TPO situations. The requirement for a 5 day notice is not a 'circumstance', it is an additional legal rule for TPO'd trees. It is an alternative to a TPO application.

If anything this is supported by the part of the guidance you cite. However, the guidance is badly written and should say "A section 211 notice is not required where the cutting down, topping, lopping or uprooting of a tree would be permissible under any exception to the requirement to apply for consent as if a tree was under a Tree Preservation Order." I guess the subtle but important grammatical distinction was beyond the writer of the guidance.

This is consistent with the principle that CA tree rules are precautionary rather than preventative. Thus, in TPOs application are downgraded to notifications, and in CAs notifications are downgraded to nothing.

The more I look at it the more I am convinced that the law is framed in the way I interpret it i.e. no 5 day notice for dead CA tree removals.

In Scotland the rules are a little different and are scattered across various instruments in a way that makes their understanding really really difficult, but essentially there has never been a 'dead' exemption, on the basis presumably that a dead tree is not a tree and is de facto not protected. No notice of intention to remove a dead tree is required or even possible at law. An attempt at interpreting the English s.211 notice requirements in CAs for dead trees would be futile. The CA exemptions in Scotland have never been stated as being those relevant to TPOs.

[Treerover]

When you say RPA, do you mean CA?

 

The normal situation is, any works implicit or explicit in the approved application don't need separate notification. It is also very common for permission conditions to say no trees are to be touched during development.

 

If it's a CA and they removals are not mandated by the planning permission, the way forward is to see if the permission conditions contain an approval mechanism for additional tree works. If so, use that. If not, it's normal CA rules. 

 

Best to document for client protection whether the tree condition is wholly or partly due to the works that have taken place around them. Remember, if it's a CA you don't have to give a reason for the works, but it sure as heck helps if you volunteer them when you notify.

 

Thank you for your detailed reply.

The trees are definitely not in a CA but were a condition of granting an appeal to build the garage as they screened the proposed development.

Now the building is up, the trees have been found to be heavily flawed and need removing .

There is not much to recommend them it has to be said and the developer is planting a tall Laurel hedge to screen the car port

 

The reason I refer to the RPA is that it covered the ground where the Ash trees are located, and the appeal condition specifically says no vegetation to be removed within the RPA ……but they hadn’t noticed the trees flaws

 

[monkeybusiness]

I wouldn’t remove those without some prior communication between the arboriculturalist who produced the BS5837 report and the planners personally, if the building isn’t already completed and signed off.
I reckon it could open a whole can of worms with unrealistic/unaffordable replanting stipulations as the current unfinished development was conditional on the screening provided by those trees. 
Clearly they need to come out - I think doing it without involving the planners and getting their agreement would be a mistake though.

Edited November 23, 2021 by monkeybusiness