replacement tree for windblown tpo tree?

[Chris at eden]

On 12/01/2024 at 09:01, daltontrees said:

It appears by its language to apply to trees uprooted or destroyed by the actions of someone (i.e. prohibited acts), but not to natural uprooting or destruction.

I think the first part talks about contravention but the second talks about trees dying or being destroyed.  I think that means by natural occurrence personally. 
 

[daltontrees]

On 13/01/2024 at 15:11, Chris at eden said:

I think the first part talks about contravention but the second talks about trees dying or being destroyed.  I think that means by natural occurrence personally. 
 

I see what you are saying but I don't think that's the right interpretation. The first part is removal/ uprooting/destruction while no exemption exists. The second is where an exemption exists. "is uprooted" still connotes a deliberate act rather than 'becomes uprooted', and the identical string of words shoidl probably be interptreted as in pari materia i.e. intended to serve the same purpose. But it's open to interpretation, unfortunately.

That said, once a tree has blown over and is perhaps still alive, and is now a legal nuisance by blocking an access, the nuisance exception is still available to remove it.

Such fun!

[Chris at eden]

3 hours ago, daltontrees said:

I see what you are saying but I don't think that's the right interpretation. The first part is removal/ uprooting/destruction while no exemption exists. The second is where an exemption exists. "is uprooted" still connotes a deliberate act rather than 'becomes uprooted', and the identical string of words shoidl probably be interptreted as in pari materia i.e. intended to serve the same purpose. But it's open to interpretation, unfortunately.

That said, once a tree has blown over and is perhaps still alive, and is now a legal nuisance by blocking an access, the nuisance exception is still available to remove it.

Such fun!

Yeah maybe.  But what about the second part of subsection 1(b) - destroyed or dies.  Destroyed in contravention is already covered by subsection 1(a) with regard to deliberate action (contravention).  Why repeat it?  And dies obviously relates to natural occurrence, otherwise it would be a contravention covered by 1(a) - destruction. Then there is the bit about woodlands in that you only have to replace trees in woodlands if its a contravention!  This to me seems to indicate that section 1(b) relates to natural occurrences.  Like you said though its open to interpretation.   

 

I take your point though about nuisance.  A lot of LPAs wont though, which is what I meant about can of works. Its more hassle than its worth.  I'd just say the tree has been destroyed by wind so is exempt (in my opinion).  I've enforced this dozens of times with no questions asked by legal but its never gone as far as court (if you can call that enforcement).  Pity really, it would have been a useful test. 

 

Cheers 

 

Chris    

[openspaceman]

3 hours ago, Chris at eden said:

I've enforced this dozens of times with no questions asked by legal but its never gone as far as court (if you can call that enforcement). 

Would you expand on that? My inference is that you required an owner to replant, which was done, and hence there was no need to take the matter further.

[Chris at eden]

3 hours ago, openspaceman said:

Would you expand on that? My inference is that you required an owner to replant, which was done, and hence there was no need to take the matter further.

When you tell a tree owner that they need to replace a TPO tree either as a condition or subject to section 206, I would say that maybe 1 in 5 times, they actually do it.  Probably less than that as I was always surprised when they called and said 'we have planted that tree and we are letting you know so you can come out and check and update the TPO'.  Its what the letter told them to do but it rarely happed so i was always really surprised.  Getting TPO trees replaced is a right pain!   

 

When they don't replace them, you then have to write to them and tell them that if they don't plant it then they may face legal action.  You ask nicely the first time and then progress to telling them if they keep ignoring you.  That usually does the trick.  Realistically, they probably assume that legal action is something more serious than being served with a notice.   

 

Very occasionally, you have to get legal to serve a notice under section 207 (a TRN).  Then they usually appeal that via the PINS and they lose the appeal.  Then they plant it.  I've sat in formal planning hearings with the inspector listening to residents saying that they don't agree with the condition, even though they didn't appeal it at the time and negotiated the size, species, and position prior to being given consent.  I used to let them pick the species within reason as i thought, well, they have to live with it.  I always tried to get the tree replacement scheme if possible upfront so everyone knew where they stood and could appeal the condition if they didn't agree.  I'd have it all documented via email as some people seem to remember conversations very differently so you cant leave it to their word against yours.  The PINS can be pretty brutal with their feedback when they think residents are being unreasonable.       

 

I have done both of the above several times, the first one dozens of times.

 

If they ignore the TRN, the LPA can go in and plant the tree on their land and pursue costs via the courts.  I have never been involved in one that got that far but i am sure it does happen.

 

Hope that clarifies?  Its rarely as straight forward as they have to replace the tree so they just do it. 

 

Cheers 

 

Chris