Yew hedge with tpo

[oslac]

Looks to me like a hedge and I agree with the earlier comment . . if it was planted as a hedge, looks like a hedge and is maintained as a hedge . . . its a hedge.

 

The TPO legislation for protecting trees within hedgerows was not brought about to protect hedgerows. It was brought about to protect unmanaged hedgerows which have developed into a row of trees. The emphasis is on the tree. Although this has also had the effect of preventing overgrown hedgerows from being brought back into the typical field hedge.

 

To say that if a hedge consist of a tree it can therefore be TPO'd is (in my opinion) wrong. Most hedgerows comprise of small, clipped trees. You wouldn't expect a hawthorn hedge to be TPO'd although you may argue that a hawthorn is a tree.

 

In this case, I think the Tree Officer has pushed his luck and is no doubt laughing all the way to the wood store.

 

Options would be to apply to remove hedgerow, state reason as 'not a tree and therefore does not come under TPO' legislation', appeal if necessary (you do not actually need to remove the hedge, just apply) or be brave and just fell the thing and argue your case in the magistrates court. I would be very surprised if the council will take it that far. Or just write to the council, copy in the legal department and ask what part of the legislation the council served the tree under and what was the council's reasons for serving the TPO. Ask them to revoke it.

[daltontrees]

High hedges if enforced on a row of evergreen trees would definitely supersede a TPO. The implementation of a high hedge notice in accordance with the ASB act would be a statutory requirement and that is a definite TPO exception/exemption. In England that is, not sure about north of the border. Are you still on the 2008 regs for TpO's?

 

Good point. Up here the HH Act states that HH notice trumps TPO.

 

I am on the 2012 regs down there and the 2010 up here.

[daltontrees]

If the LA refuse consent (the reduction) the owner is then, or could be construed to be, in a situation where due to the height he is forced to employ others to maintain it. I think that at the current height, most homeowners wouldn't be able to or want to attempt to maintain it themselves.

 

The refusal has then led to a financial cost or loss to the homeowner, no article 5's anymore, so - claim for recompense. Obviously, once the hedge was at a lower level it could be deemed manageable by the owner - or the average homeowner. I may be talking total nonsense, but I think there's a possibility that if the application was well written, with reasons for reducing supported by quotes for maintaining as is, the LA could well be backed into a corner.

 

I'm with Chris@eden on this, the right is to compensation for damage, which even if there was a damages claim for TPO refusal would not include economic loss. Worth a try to gain sympathy for a hedge reduction but I don't think it's a valid threat.

[daltontrees]

Is a TPO application needed to trim a hedge?

I'd say yes - strictly speaking. If a tree is managed as a pollard, consent is needed to re-pollard usually. Some councils will write an ongoing consent, allowing re-pollarding on a cyclical basis and I'd imagine most LA's wouldn't want to deal with annual applications to trim. But if you allow maintenance works to a hedge - where does the ball stop?

 

Do you require consent to remove basal growth? Epicormic growth from lime trunks? thinning? remedial/formative pruning? I don't think that LA's should be allowed to pick and choose what works require consent, that's making up their own T&C Acts to suit themselves. The authority in this instance has decided that they're trees - so any work should, theoretically and to the letter of the Act, require consent. They can't have their cake and eat it:lol:

 

I agree, there seems to be no de minimis allowance for work to TPOd trees even if they are in a hedge. However, in practice I can't see trimming being prosecuted. I think it is usual in these situations for owners to apply for a term consent e.g. to be able to maintain the hedge at a specific height and width annually without further consent.

[daltontrees]

Options would be to apply to remove hedgerow, state reason as 'not a tree and therefore does not come under TPO' legislation', appeal if necessary (you do not actually need to remove the hedge, just apply) or be brave and just fell the thing and argue your case in the magistrates court. I would be very surprised if the council will take it that far. Or just write to the council, copy in the legal department and ask what part of the legislation the council served the tree under and what was the council's reasons for serving the TPO. Ask them to revoke it.

 

A variation on the duck principle. If it says it's a TPO, if an application for its removal has been refused because it's TPO'd and if trees in hedges can have TPOs, it's a TPO.

 

Calling the Council's bluff by removing the hedge could be a very expensive gambit. I think there is every chance that the Council would pursue it and the owner could get fined and be ordered to replant.

 

I believe the Planning legislation recently obliges Councils to review TPOs from time to time. Asking for a review would be better than asking for a revokation. I have just done this for a tree hedge up here, where I know the scottish Acts allow for it.

 

If you ask why there's an Order the Council would I predict say something like "it was considered expedient in the interests of the amenity of the area". End of case.

 

What I would say is that rather than dwell on history, put in a clean (free) application to remove the hedge, one that is not complicated by extension proposals. But if you don't give a reason (and a very good one at that) for the removal, the Council can refuse with impunity. If you give a good reason and it is refused, you can at least appeal to the Inspectorate and get an objective decision.

[Gary Prentice]

I'm with Chris@eden on this, the right is to compensation for damage, which even if there was a damages claim for TPO refusal would not include economic loss. Worth a try to gain sympathy for a hedge reduction but I don't think it's a valid threat.

 

I didn't get time to read the TPO legislation this morning (and it was far too early) but Mynor's describes compensation as for both damages and losses. Both of which should be foreseeable by the council.

 

The path I'm pursuing is for a hedge reduction though - with a view that the council would then have even more difficulty defending the TPO. If all else fails, I think it may fulfil the criteria of the Lands Tribunal. It would definitely be worth a go IMO, even if only to set a precedent.

 

It's strange how opinions are varying on how the PINS inspectors would stand.

[daltontrees]

The distinction between loss and economic los is an important one in tort, and the statutory claim for compensation is I expect a quasi-tort provision.

 

If you go down that route and I was the Council I'd be saying that he economic loss is not the cost of cutting teh high hedge inperpetuity but the difference between that and the cost of maintaining the lowered hedge.

 

An Inspector might I think be unwilling to stray into legal interpretation that could act as a precedent. After all, he is there as an arbiter, not a judge.

[Gary Prentice]

The distinction between loss and economic los is an important one in tort, and the statutory claim for compensation is I expect a quasi-tort provision.

 

If you go down that route and I was the Council I'd be saying that he economic loss is not the cost of cutting teh high hedge inperpetuity but the difference between that and the cost of maintaining the lowered hedge.

 

An Inspector might I think be unwilling to stray into legal interpretation that could act as a precedent. After all, he is there as an arbiter, not a judge.

 

That's the point I was trying to get at from the owners perspective. High hedge meaning contractors and mewps, low hedge gardener or owner himself.

[kevinjohnsonmbe]

It may be an obvious question/answer, and I haven't looked at the detail yet, but can you put a HH complaint in about your own hedge??

[daltontrees]

It may be an obvious question/answer, and I haven't looked at the detail yet, but can you put a HH complaint in about your own hedge??

 

No. In England the Act says "... property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person."

 

And this is the philosophiocal point I am making. If it was someone else's hedge you could apply and the HH notice would trump the TPO. But if it's your own hedge you have to suffer it. Most unfair. Primary legislation would be needed to change it. But such cases are so rare it will probably never get acted upon.

 

In theory you could rent out your house but exclude the hedge from the leease. Then get your tenant to apply for a HH notice.