211 upgraded to TPO status

[Gary Prentice]

Hi

 

If you serve an S211 and the LPA TPO the tree, (which incidentally they can do any time they like not just within the six week S211 notice period), six months elapse and the TPO isn't confirmed, then you can carry out the works in the S211 notice, so long as you do them within 2 years of the date of the original S211 notice.

 

Ed

 

But the tree was protected, in principle, which would be a 'refusal' of the 211 notice.

[Chris at eden]

Yeah but:001_smile:

 

Hypothetically, the tree was protected by, is it s201, for the first months, so technically the 211 notice wasn't agreeable to the LA.

 

And not all tpo's are confirmed by committees, don't some just get confirmed by executive officers? I'm sort of musing on the legal argument that despite not confirming the order (slow legal department say) the intention was to refuse the notice (protect the tree)

 

 

All hypothetical of course.

 

S201 went with the 2012 regs. All tpos now take provisional effect under s197 or s198 whichever is appropriate. there are other sections you can serve under.

 

As far as I am aware if a TPO is objected to it has to go to committee, it can't be delegated. That wouldn't be democratic. Some LPA's send all their apps to committee with no delegated decision at all. That must be a right pain.

 

As far as i can see the officers decision to prevent felling has been overruled, democracy at work.

[treebloke]

Bob, if I've understood you correctly (typical AA Scheme Manage caveat ) the answer, simply, is 'no.'

 

IF the LPA allows the removal of a tree under a 211 notice they cannot condition for replacement. The 'attempted' TPO in the scenario you cite would not be applicable and even if the do want a replacement they would need to condition the consent accordingly (which they can't of course if the tree isn't TPO'd.)

 

There, SIMPLES

 

Cheers, n hope yer well.

Paul

 

Without going into to much detail, the tree is causing damage to property and in order to rectify this the tree will need work carrying out which in turn will lead to the ultimate demise of the tree.

 

Locals have objected to the removal which they have a right to do but their reasons in the main are not valid and they are simply 'clutching at staws'. The LPA would like a replacement tree and I personally think this is reasonable but obviuosly they cannot insist on this, my client does not want another tree and therefore I believe the making of the TPO is no more than an attempt to get a new tree.

[ReubenHayes]

Just been reading the thread, so you are saying that the tree is causing damage? has this been demonstrated to be the result of the tree? if it is damage then the LPA would not be able to refuse consent for the felling. It maybe that they are looking to plant a new tree (however, if damage has already occurred, how will you be able to plant a new tree in the same location?) and you should be able to challenge this at a later date. If the LPA are not aware of the damage then I would certainly point it out to them. That would be my first line to go down. It maybe that the LPA is being pushed to protect the tree, however you can not protect every tree in every location.

[treebloke]

Just been reading the thread, so you are saying that the tree is causing damage? has this been demonstrated to be the result of the tree? if it is damage then the LPA would not be able to refuse consent for the felling. It maybe that they are looking to plant a new tree (however, if damage has already occurred, how will you be able to plant a new tree in the same location?) and you should be able to challenge this at a later date. If the LPA are not aware of the damage then I would certainly point it out to them. That would be my first line to go down. It maybe that the LPA is being pushed to protect the tree, however you can not protect every tree in every location.

 

A major lateral root is lifting a path and creating a trip hazard, this needs to be addressed for obvious reasons and the only way to do this is dig up the path, remove the root and relay the path. If the work isn't done the trip hazard will become more prolific and quite possibly with today's blame culture my client will be on the wrong end of a court case. One of the objectors has actually said 'why don't they just remove the root and leave the tree', the tree is immediately adjacent to the path. Photo's of the problem were supplied with the 211. There have also been other issues with the tree over recent years.

[Chris at eden]

If the tree and the path are under the same ownership then there is no reason why the LPA cannot protect the tree as actionable nuisance would not apply. That said, if they refused an application they run the risk of taking on liability.

 

Dozens of court cases not to mention the joint mitigation protocol have demonstrated that engineering solutions must be considered and not just felling. I dont know the situation but it may be possible to grade the path up and over for example or divert. If it isn't then the TPO application should demonstrate why. Rule out all the alternatives to felling and you should be on to a winner. If you cant you may not be. It may also be useful to do a CAVAT value against the cost of engineering solutions if the tree is not the best specimen as part of the app.

 

I did a report a while ago where the council were suggesting putting a no dig drive in at the front so a street tree could be retained, it was damaging the existing drive. No way it could be done as the cellweb would have to be 100mm + the wearing course on top so it couldn't meet the highway without digging.

 

As for replanting the guidance says at the same place, not in the same place so in theory this could be interpreted to mean say in the front garden. Then you may be able to replant.

 

If the LPA force an expensive engineering solution though i would think they run the risk of taking on liability for some of the costs.

 

Interesting case, let us know how it turns out.

 

Cheers,

[treebloke]

I am afraid it will end there Chris or at least for the time being. I have given my client several alternatives but it looks like the tree will become TPO 'd and the trip hazard will remain which is not good practice.

[Gary Prentice]

I am afraid it will end there Chris or at least for the time being. I have given my client several alternatives but it looks like the tree will become TPO 'd and the trip hazard will remain which is not good practice.

 

I got sidetracked early in the thread, but have actually had some experience in this. (and a thread somewhere)

 

The tree was TPO'd, close to the boundary and, damaging both drives. The application -that the actionable nuisance to the neighbour required root pruning to an extent that would cause instability, was refused because I hadn't shown that engineering solutions were impossible/impracticable. This was all on behalf of the neighbour.

 

For the appeal, I provided an estimation of the grade changes necessary for a no-dig solution and the problem of the drive to footpath interface.

 

At the same time, I submitted a new application, on the owners behalf, due to the damage to their own drive, noting again that a no-dig solution would require the foot path grade to be altered and that recompense for the additional costs to the owner could be sought.

 

The inspector overturned the refusal and conditioned no replanting, due to the root/surfacing problems.

Common sense prevailed.

[Gary Prentice]

Hi

 

If six weeks elapse from the serving of a S211 and the LPA haven't TPO'd the tree you can carry out the works, (unless they subsequently TPO it).

 

If the LPA serve a TPO in response to the S211 and six months elapse and the TPO hasn't been confirmed the TPO ceases to exist. The six week S211 notice period would have elapsed several months previously. Therefore the tree isn't protected by its conservation area status, or the TPO, you can do the work.

 

I'm not sure where the "protected in principle" bit comes from. It's either protected or it's not.

 

TPOing trees to ensure replacements isn't unknown.

 

EdC

 

See Chris Edens post.

 

The tree is 'protected in principle' because after the S211 a TPO was served. This is relating to the hypothetical question I posted earlier.