Tree replacement in CA

[treesnakey]

I'm felling a tree in a CA, the tree officer has asked for it to be replaced with a 4m replacement.

 

Can they legally do this?

[Eddy_t]

I'm felling a tree in a CA, the tree officer has asked for it to be replaced with a 4m replacement.

 

 

 

Can they legally do this?

 

 

Has the tree got a preservation order? The answer to my question is the answer to yours

[stetson]

A local authority cannot condition a TCA, they can add an informative that suggests they plant a replacement tree or that the applicant consider a replacemnt tree:thumbup:. They can only condition a TPO as the replacement will carry on the original TPO.

[ReubenHayes]

The info below is taken from the new guidance:

 

You haven't stated if you notified the LA through the 211 notification, or if the tree was dangerous. Therefore I have included both parts.

 

What the LPA can do

9.7 The LPA can deal with a section 211 notice in one of three ways. They may:

(1) make a TPO if justified in the interests of amenity.

(2) decide not to make a TPO and allow the six week period to expire,

(3) decide not to make a TPO and inform the applicant that the work can go ahead.

 

The LPA cannot refuse consent. Nor can they grant consent subject to conditions (such as a condition requiring the planting of a replacement tree). This is because a section 211 notice is not, and should not be treated as, an application for consent under a TPO.

 

Replacement Of Trees: Enforcement

9.14 If a tree in a conservation area is removed, uprooted or destroyed in contravention of section 211 the landowner is placed under a duty to plant another tree of an appropriate size and species at the same place as soon as he or she reasonably can.116 The same duty applies if a tree is removed because it is dead, dying or dangerous or because it is causing a nuisance.117 The duty attaches to subsequent owners of the land, although the LPA have powers to dispense with the duty.118 The LPA may enforce the duty by serving a tree replacement notice under section 207 of the Act (see Chapter 11 of this Guide).

 

This is of course assuming the tree(s) are not protected by a Tree Preservation Order as well.

[woodyguy]

Sorry to hijack but what does it mean by "another tree of an appropriate size and species".

To my mind that is a tree that will grow and establish. So I'd plant a 90cm tree rather than a 4m which will sit there not growing for years. Can they specify beyond the species and that you maintain it eg water, shelter, prune etc

[Chris at eden]

A local authority cannot condition a TCA, they can add an informative that suggests they plant a replacement tree or that the applicant consider a replacemnt tree:thumbup:. They can only condition a TPO as the replacement will carry on the original TPO.

 

Close but for future ref. If the LPA condition replacement of a TPO tree its not automatically protected. The protection is only transferred if the tree was removed either in contravention, because it is dead, or because it creates an immediate risk of serious harm. That last one is the new way of saying dangerous.

 

Replacement trees via condition are only protected if the LPA either:

 

1. Vary the original order to show the change and re-serve.

2. Or, make a new order.

[Chris at eden]

The info below is taken from the new guidance:

 

You haven't stated if you notified the LA through the 211 notification, or if the tree was dangerous. Therefore I have included both parts.

 

What the LPA can do

9.7 The LPA can deal with a section 211 notice in one of three ways. They may:

(1) make a TPO if justified in the interests of amenity.

(2) decide not to make a TPO and allow the six week period to expire,

(3) decide not to make a TPO and inform the applicant that the work can go ahead.

 

The LPA cannot refuse consent. Nor can they grant consent subject to conditions (such as a condition requiring the planting of a replacement tree). This is because a section 211 notice is not, and should not be treated as, an application for consent under a TPO.

 

Replacement Of Trees: Enforcement

9.14 If a tree in a conservation area is removed, uprooted or destroyed in contravention of section 211 the landowner is placed under a duty to plant another tree of an appropriate size and species at the same place as soon as he or she reasonably can.116 The same duty applies if a tree is removed because it is dead, dying or dangerous or because it is causing a nuisance.117 The duty attaches to subsequent owners of the land, although the LPA have powers to dispense with the duty.118 The LPA may enforce the duty by serving a tree replacement notice under section 207 of the Act (see Chapter 11 of this Guide).

 

This is of course assuming the tree(s) are not protected by a Tree Preservation Order as well.

 

 

Sorry mate but this is cut from the old blue book, not the new online planning guidance. Obviously there is no dead, dying or dangerous anymore. This has been replaced by dead, or an immediate risk of serious harm.

 

I think they did away with the duty to replace due to legal nuisance also, or at least I've never been able to find it.

 

The new online guidance is rubbish, you are better off working directly from the regs.

[Chris at eden]

Sorry to hijack but what does it mean by "another tree of an appropriate size and species".

To my mind that is a tree that will grow and establish. So I'd plant a 90cm tree rather than a 4m which will sit there not growing for years. Can they specify beyond the species and that you maintain it eg water, shelter, prune etc

 

Good points well made woody. Its all about being reasonable. If it was a TPO and they conditioned a 4m replacement, I would appeal it and in my experience the planning inspectorate would either vary the condition allowing a smaller tree, or dispense with it altogether just to teach the LPA a lesson.

 

I wouldn't condition maintenance either as it would be a nightmare to enforce. But, if the tree died they would have to replace it again so its in their interests to water it. I would always point that out.

 

As previously stated by Roobs and the other chap you can't condition in a CA. If the tree had died asking for a 4m replacement would not be reasonable in my view. If on the other hand it was a contravention, you could possibly get away with it as it would be part of the punishment.

[Chris at eden]

In answer to the original poster, if you fell a dead tree in a CA you have a duty in accordance with section 213 of the town and country planning act to replace with an appropriate species blah blah blah. That's been covered.

 

As I already said though it has to be reasonable. As its a duty and not a condition there is no direct route of appeal but there is a work around. You could ignore the duty and wait for the TRN to be served under section 207. Then appeal that. The planning inspectorate would then reassess.

 

He may side with the LPA or he may reduce the size. In my opinion its better to plant smaller trees as they establish better. Plus, if you planted a 4m tree and a 2m tree and looked at them in 20 years which do you think would be bigger? Arboriculture is all about the long game, not instant results. That would be the basis of you argument.

 

Test it, see what happens. Even if you lose its an interesting experience.

[Gary Prentice]

So Chris, is the 'abatement of a nuisance' absent from the new rules?

 

Next units Tpo and planning, so I suppose I should try to keep up