Replacement tree in conservation query

[Barney]

Evening,

 

Client cuts down crappy bay tree/bush in the rear garden without permission (possibly just over the 75mm at 1.5)

 

Tree officer wants him to plant field maple in the front garden.

 

Is this usually the case? Any advice will be appreciated so I can get back to client.

 

Thanks 

[Dan Maynard]

I don't think there is any clear replanting requirement in a CA, no.

 

Has it been established that it was over the 75mm? Seems difficult to prove if it's gone, and if it wasn't there is nothing to answer for.

 

[Mark Bolam]

You also don’t need ‘permission’ to fell in a CA.

 

I would maybe advise your client to replant, but where he chooses, not the TO.

[Barney]

Thanks guys. Yes meant to write give notice, not permission. 

 

 

[Barney]

13 minutes ago, Dan Maynard said:

I don't think there is any clear replanting requirement in a CA, no.

 

Has it been established that it was over the 75mm? Seems difficult to prove if it's gone, and if it wasn't there is nothing to answer for.

 

Good point. I don't think the size had been established 

[kevinjohnsonmbe]

You want to look at s211(4) 

 

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 of...

The same penalties apply in a CA as if there had been a TPO. 

[daltontrees]

19 hours ago, Dan Maynard said:

I don't think there is any clear replanting requirement in a CA, no.

There is. S 213 of the T&CPA 1990.

"

(1) If any tree to which section 211 applies—

(a) is removed, uprooted or destroyed in contravention of that section; or

(b) is removed, uprooted or destroyed or dies  at a prescribed time,* it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

[Barney]

15 minutes ago, daltontrees said:

There is. S 213 of the T&CPA 1990.

"

(1) If any tree to which section 211 applies—

(a) is removed, uprooted or destroyed in contravention of that section; or

 

(b) is removed, uprooted or destroyed or dies  at a prescribed time,* it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

 

This is helpful, it seems odd that he has been told to re plant a different species in a completely different spot. 

[Dan Maynard]

6 minutes ago, daltontrees said:

There is. S 213 of the T&CPA 1990.

"

(1) If any tree to which section 211 applies—

(a) is removed, uprooted or destroyed in contravention of that section; or

 

(b) is removed, uprooted or destroyed or dies  at a prescribed time,* it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

 

Fair enough, there is.

 

Seems to me unlikely the TO could prove it was over 75mm and hence that S211 actually applied, I'm intrigued by this because I've definitely cut down trees that are close to the margin and wondered how it would be enforced. This probably not a legal argument you want to get into, but all the cases I find online relating to CA prosecutions are much bigger trees where there is no doubt.

 

If the TO has already been told it was over 75mm then I guess there is an admission, so it becomes a discussion about what 'appropriate size and species at the same place' means in a legal sense. Same place = same address?

[daltontrees]

27 minutes ago, Dan Maynard said:

Fair enough, there is.

 

Seems to me unlikely the TO could prove it was over 75mm and hence that S211 actually applied, I'm intrigued by this because I've definitely cut down trees that are close to the margin and wondered how it would be enforced. This probably not a legal argument you want to get into, but all the cases I find online relating to CA prosecutions are much bigger trees where there is no doubt.

 

If the TO has already been told it was over 75mm then I guess there is an admission, so it becomes a discussion about what 'appropriate size and species at the same place' means in a legal sense. Same place = same address?

Yes 'appropriate ... species' allows for different species, and the only chalenge would be not to plant, then get a Tree Replacement Notice served on you then appeal it. Inspectors and Reporters should not interfere with Council disctretion on trivia like species unless the requirement is outlandish. That's my experience anyway.

 

'At the same place' similarly allows latitude, I think it should be restricted to positions that would provide a similar degeree of amenity to the area. For example, removing one in the back garden, it would be too much to expect a replacement to be in the front garden. 

 

A client once took down trees and the Forestry Commission came out and measured the stumps then applied some mensuration stem flare and taper formula to calculate an equivalent DBH. They were pretty detemined.

 

Baut as you say in this case it would be a bust due to pre-removal evidence.