Trees overhanging from a CA

[daltontrees]

22 hours ago, Excels1or said:

Anyone got any solid proof that after 6 weeks with no word from the LA then you're good to crack on? I've heard that the 6 weeks is guidance only, and that they can extend as they see fit

They can't extent it, it's the law!

[daltontrees]

Based on scottish legislation, the key points here seem to be that CA protection "applies to any tree in a conservation area" and that the offence for transgression is "any act which might by virtue of section 160(3)(a) be prohibited by a tree preservation order". This extreme shorthand means that the question of whether the parts of a tree outwith the CA are protected is more or less the same as whether the parts of a tree outwith a TPO are protected. I think this is backed up by realising that the only thing that can be done to prevent the works is to make a TPO. The tree, once in a CA or TPO, is protected, and logically all of it.

 

At this point the English/Welsh law and Scottish diverge procedurally so I can't say more than that for this situation. Except that the same principles apply to CA and TPO trees alike.

 

My instinct is that the underlying purpose of TPOs and CAs is similar, as in protecting amenity of an area, and that the strict CA/TPO/legal boundary is a secondary consideration if pruning would damage that amenity. But of course that amenity is not sacrosanct as it can be daamged by the lawful 'prevention or abatement of a nuisance' by removing overhangign branches. Subject to that test. That test covers the grey area.

[kevinjohnsonmbe]

8 minutes ago, daltontrees said:

My instinct is that the underlying purpose of TPOs and CAs is similar, as in protecting amenity of an area,

This part could benefit from a little further unpacking Jules.

 

Whilst I would absolutely agree with the words above, we in the arb world can get too absorbed by the arb aspects of 'amenity' in a CA potentially to the exclusion of the actual purpose and justification for the CA which should be available in a stand alone document.

 

I'm not suggesting that tree(s) aren't afforded protection in a CA - clearly they are, what I'm saying is, just because they are trees and just because they are in a CA often fails to recognise the actual purpose for the CA which may not even mention trees what so ever.

 

I have this example locally (which results in much nugatory work prior to removing offensive Leylandii, poor form self set Syc etc, where the justification for CA of a picturesque fishing harbour is comprehensively laid out in a detailed document and there is absolutely no mention of trees or arb amenity what so ever.  It's all historic buildings, cobbled streets, shop fronts etc.

 

Its just that trees ARE included in CA protection whether they contribute to the genuine historic conservation or not.  I guess its not that big a deal really, just a bit of a nuisance...

[daltontrees]

13 hours ago, kevinjohnsonmbe said:

This part could benefit from a little further unpacking Jules.

 

Whilst I would absolutely agree with the words above, we in the arb world can get too absorbed by the arb aspects of 'amenity' in a CA potentially to the exclusion of the actual purpose and justification for the CA which should be available in a stand alone document.

 

I'm not suggesting that tree(s) aren't afforded protection in a CA - clearly they are, what I'm saying is, just because they are trees and just because they are in a CA often fails to recognise the actual purpose for the CA which may not even mention trees what so ever.

 

I have this example locally (which results in much nugatory work prior to removing offensive Leylandii, poor form self set Syc etc, where the justification for CA of a picturesque fishing harbour is comprehensively laid out in a detailed document and there is absolutely no mention of trees or arb amenity what so ever.  It's all historic buildings, cobbled streets, shop fronts etc.

 

Its just that trees ARE included in CA protection whether they contribute to the genuine historic conservation or not.  I guess its not that big a deal really, just a bit of a nuisance...

Yes the nature of CAs is that they don't actually protect trees they just give the LPA the opportunity to consider the importance of individual trees later if their removal is proposed.

The CA (in Scotland anyway) has to be accompanied by a CA appraisal (this will be the stand-alone document you mention) which states what is important about the CA. This should and generally does include a section on which classes of trees are important. If I have a contentious CA notification to do I usually quote the CAA. I generally consider it relevant to point out situations where the trees have no historic or architectural context and/or are actually detracting from the framing of historically or architecturally important views. LPAs are much more interested in the architecture than the trees,  but trees can occasionally be worth protecting in tree lined avenues or parkland settings.

Technically the interesting matter is that to prevent removal the Council has to make a TPO and this (in England and Wales anyway) can only be justified "in the interests of amenity". This may or may not be the same as the special cheracter that the CA is designated to protect,  but if a subsequent TPO application is made it should be considered without regard to the CA criteria.

Concluding, the word 'amenity' is all-important in both TPO and CA situations because it is the one and only statutory test. (In England anyway; the situation is considerably more complicated in Scotland; I have lost track of Wales; Northern Ireland planning law is a mystery that I leave alone until I have to).