Jon Heuch

Johnelle 1) I assume the council confirmed the TPO within 6 months of originally serving it? If not it's as dead as a dodo. It's simple diary arithmetic to look at the two dates. 2) Having confirmed it the council has to endorse the TPO to show it's been confirmed. They should then have sent the revised document to you. If the council acknowledge their mistake I am assuming they have now sent you the TPO document showing you its been confirmed (with a date of confirmation)?It's just that they delayed? 3) If as above then the liability if firmly in your hands; insurers for the building cover the risk to the building but make sure your insurance does actually cover the building if it is an outbuilding and not just your main house; your contents insurance should cover risk to third parties. If you have one insurer for both you will avoid this split. 4) you clearly want to avoid any damage to property so that is why you are on this forum: 5) as others have advised you need professional assistance with assessing the tree; they clearly need to either state in writing that the tree is safe in which case you should be in that grey zone of being protected by professional advice (on their professional indemnity insurance be it) for a period of time but probably be needing similar advice every 12 months or so. Or they state that various works need to be done to the tree and you need to apply to the council for permission and they may or may not agree and allow the said works to go ahead. 6) if your professional advice says "X" and the council says No! (and it's not uncommon) you need to seek better quality arboricultural advice. If you don't know who you are employing you are better to start at the top first: www.trees.org.uk and look for a registered consultant in your area.

I'm not sure I agree with that; the hedge that is causing the infringement of the Act (s65 "...alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.") doesn't have to be all above the hedge owner's land - it can overhang. The key issue is whether the overhang contributes to the "height" (simple trignometry) i.e. it makes it look taller than it actually is; if the overhang is halfway down to the hedge then it is unlikely to, but if at the top it probably will. s69 remedial notices separates "the initial action that must be taken in relation to that hedge before the end of the compliance period" from "any preventative action that they consider must be taken in relation to that hedge at times following the end of that period while the hedge remains on the land". I can't see that the primary law limits the remedial action to be a reduction in height (alone) but since the law focuses on height the focus clearly has to be on height reduction. A remedial notice that included removal/reduction in length of lower branches that did not contribute to the perceived height could be challenged. However, if access to the hedge is an issue I see no reason why the preventative action should not include an instruction to undertake work from the hedge owner's land alone......it might be stretching matters a bit but if it can be argued that "reasonable enjoyment" is significantly affected by a difficult hedge owner and their actions or inactions (or both). It will depend on the evidence and history. The 2005 Regulations covering appeal procedures seem to confirm the above.

"Good luck and, actually, some time "on the tools", selectively, i.e. where you can do, or observe, the 'autopsy' when diseased trees are felled, is really valuable IMHO." Many companies are looking for experienced surveyors & acting as a competent sub-consultant to do the field work for different companies is a good way of clocking up experience (and seeing that different companies work in different ways). You want to move into making sure you get paid & focus on doing things for which you can get paid. Being a poor consultant with no guarantee of work is not a great place to be but if you are employed 4 days a week it won't feel so bad. I would contact the larger companies & make contact with their principal arborist to see if they have any need for a sub consultant in your area. You have the Innovation Group in Alnwick and MWA have an office near you; they may not be of immediate use but useful to know they exist when you possibly have a bit more experience. There are lots of others...often buried in larger landscape, ecological and engineering consultancies..you just need to find them!

I always find it interesting to read reports & decisions referring to standards and laws that are woefully out of date. A sure sign someone or organisation has got lazy & is in a bit of a rutt. Council tree work decisions referring to the 1999 Regs & even the 1969 regs once, being an example. Text in the decision notice reflecting those old regs including reference to Article 5 certificates and compensation reflecting what is in the particular TPO being another. I had an expert witness report on my desk the other day in which the expert had used the Helliwell method.....except they had used the method from about 20 years ago, predating several revisions & updates. It did provide something of an open goal when it came to questioning the competence of the expert. BS5837: 2012 & the 2012 Regs in England will be approaching their 10th birthday next year. Plenty of time for people to have read them and forgotten history I hope!

The discussion was about a "hand-written" TPO not just an on-the-spot TPO. An organised tree officer with the necessary printed paperwork in accordance with the Regs (including a plan on which the location of the tree was clear) and authorisation defined by standing orders could generate a new TPO quite quickly. Very little of it would be hand-written. There would need to be more than one identical copy in that the copy retained by the council would need to be identical to that served on the land/tree owner. If there were any interested parties each would need an identical copy. If you are dealing with a non-tree owner tree surgeon you'll need to give them a copy too; perhaps the land/tree owner is there or if not, you need to serve it on them. That means 3 copies at least for starters. Easier to generate one & photocopy I would have thought but most people don't have facilities to hand. Not great practice to serve the TPO and photo it with your mobile phone for the council record.

The 2012 regs state clearly what a TPO looks like. An order shall be in the form set out in the Schedule to these Regulations or in a form substantially to the same effect and— (a)shall specify the trees, groups of trees or woodlands to which it relates; (b)where the order relates to a group of trees, shall specify the number of trees of each species in the group; (c)shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map; and (d)shall include information as to— (i)whether or not the order was confirmed; (ii)any variation of the order; and (iii)any revocation of the order. (2) An order shall contain or have annexed to it the map referred to in paragraph (1)(c) and, where a map is annexed to an order, it shall be treated as part of the order. (3) The map contained in, or annexed to, an order shall be prepared to a scale sufficient to give a clear indication of the position of the trees, groups of trees or woodlands to which the order relates. Precisely what the council has to do at the end of the Order is determined by the Standing Orders of the council, so there may be room for variation.......but I would find it a little disturbing if the tree officer could print out the Schedule, attach a plan & a list of trees without reference to anyone else at the council. Typically two signatures are required - "signed on behalf" and "authorised"....again reference to specific council standing orders are needed to determine whether the new order is legal and takes effect immediately. I would send a hand written order from a tree officer on site where it belongs - the bin!

You might want to read Oxford Forestry Institute Occasional Paper 24 from 1983 (google, it is freely available online). Titled Ash dieback survey. Not the same disease but its abstract reads "Ash dieback was prevalent throughout the area, the incidence of the disease being highest in Northamptonshire and adjacent areas in neighbouring counties, where the occurrence of dieback on ash trees over 25 ft in height was frequently over 40%." Whilst some time ago, things have been ash hasn't always looked in good health.

I think you have got the advice you need, even though bureaucracy and arse-saving seem to be more to the fore than common sense; however, just one word of warning as eucs are different to most trees that British arbs and engineers come across. They don't have overwinter buds so can keep growing during winter, weather conditions permitting. So if the weather is dry and relatively warm for winter the rehydration may not take place. The effect won't be as large as summer drying, simply because of the weather. Fell now & wait for some rain. Lay the foundation in the spring, having given the soil a bit of time to recover without the tree.

It's a bit of a side issue & I haven't read all the posts.....but it is not an offence to disturb birds based on the law as stated. The PC might want to read s1 of the act again. para i) makes it an offence to kill, injure or take any wild bird ii) protects nests in use or while being built iii) protects eggs Clearly, what happened was an offence but the only element of a seasonal nature is para ii) in that the nest is either being built (unlikely in August, unless my idea of seasonality is wrong) or is in use. If it has live eggs in it, it is being used; young birds, being fed, it is being used......but once the young birds have gone, the nest itself is not protected.....unless someone wishes to argue that some birds might use nests later on in the year. That behaviour might be special to particular species but it is not pointed out in the various guidance notes issued by various parties.

So the client is faced with this choice: i) uncertainty in submitting a planning application (TPO may be served & permission refused) + cost of tree survey/report. ii) certainty in submitting a planning application (no trees, so no TPO) + cost of removing trees + no cost of tree survey/report. It's a no brainer, isn't it, if the trees have to be removed for the proposed development to go ahead? The only uncertainty is whether the tree work is unnecessary, because planning permission is not granted. If it's an extension, then presuming it's a domestic garden, a felling licence will not be required, regardless of tree size. It's a discussion I have from time to time, talking a potential client out of using my services as they have a far more obvious route than employing an arboricultural consultant. Why would you not advise him to take this route? If you are acting on behalf of the client you are duty bound to advise him/her in a professional capacity, not as a tree hugger. You would be in a much greater quandary if one or more of the trees is a veteran tree, or you regarded it as a veteran tree but there might be some debate over its status. You would then be in that ethical hole that government policy has created by supposedly "protecting" veteran trees, but in reality done nothing about it in terms of protecting veteran trees. If the veteran tree is left your client may be faced with planning refusal, if the veteran tree is removed pre-emptively, the veteran tree issue evaporates. That is a real challenge for the professional!

It takes time for a legal document (TPO) to progress from the initial serving to the land owner & interested parties. Inevitably, there will be a gap between serving & going onto an online mapping system. That's why some councils have a clear statement saying their online mapping is not a definitive statement of tree protection.....but that is something slightly different to what you are referring to, as the serving of a TPO is accompanied by a variety of other documents showing how they can comment on the TPO. There is a formal procedure both for serving and for stating how the feedback needs to be made. If land is changing ownership at the same time as a TPO is served it does became mucky and fraught with difficulties if someone who doesn't own the land but is about to take ownership wants to know the legal status of tree protection. What with Land Charges, Land Registry etc it is inevitable that a TPO may not show up with one at a particular time. If your Person A was the land owner at the time the TPO was served the order should have been served on them; if they bought it at auction but was not yet the registered owner, the old registered owner should have passed the TPO paperwork on through their solicitors. As for anyone commenting on a provisional TPO I still don't see any great merit in opening up the process to others who are land owners or interested parties. The issue of LPAs being judge and jury is a matter dealt with both by Mynors and other planning guidance. Yes, it can be problematic. As for comparing a legal process (the serving of a TPO) which has to fit into a much larger legal system with the issue of how things are measured and recorded, it's a bit like comparing apples and oranges. The latter is very much a technical/scientific matter and there are simple practical issues to be dealt with. Not really the same at all.

The answer to your question is that, as far as I am aware, very few councils do what you suggest and I don't see much benefit from it. The serving of a TPO is typically the result of a threat or potential threat to a tree(s) and these tree(s) are of some importance in the public eye. Would a public consultation really add to this basic situation? After all, if they wanted the tree pruned or removed they can always seek permission after the TPO has been served.....but they clearly only have any rights to undertake the work with the permission of the landowner and/or interested parties. So it is for the landowner to object. I only know of one council that provides information on TPOs via its planning application database - Lewisham. Do you know of any others? Ashford has a separate database of TPOs, but only after a certain date. A few others have lists, which frankly are highly annoying - mostly out of date, some with street names and numbers (OK for Kensington & Chelsea with high ordered streets, but less so with house names, odd bits of land & larger TPOs covering numerous properties) and with varying abilities for searching, rather than turning over page after page, hoping your street address is easily found. Increasingly basic TPO information is available via online mapping and sometimes GIS (i.e. you can download the actual TPO with the latter) but my guess is this is the case with less than 50% of English councils. Contrastingly, some councils post high hedge applications onto their planning database; these should be intensely private affairs so when the correspondence between parties goes into the public domain it can be a bit embarrasing. High hedge appeals are available, on request, from PINS....but if you don't know about them it is difficult to request details.

Depends what you use to measure your diameter with, but what unit does a diameter tape use? What does every forest mensuration and yield table use? That's because they have scientists, mathematicians and practical statisticians supporting them - they understand what they are doing and trying to achieve. They understand that data collection costs money. Use of an extra digit to report in mm is simply a waste of time & effort. It adds nothing. For a very good reason; they are interested in accuracy in mm when installing buildings, measuring elements of the building to the nearest mm. Not micro metres that a mechanical engineer might be interested in. It's horses for courses. Why use something different? Well indeed, why has arboriculture wandered off by itself without thinking what was needed? Measurement systems reflect the need for accuracy and precision. Arboriculture gains nothing from trying to measure and record in mm. Nothing, other than larger bills as extra time is required to record an extra, useless digit. Greater potential for error, with an extra digit, repeated thousands of times per year. This is basic data recording theoretical, yet practical stuff. As it happens my excel spreadsheet for BS5837 uses mm as the formulas are set up using mm. It's a joke & only done because I know someone may make the comment...well the standard says.... Recording tree diameters as 15, 20, 25, 30 cm does as you say have the potential to increase RPAs somewhat, if developers ever paid any respect for such measures. The significance of this for small trees is very small as branch length is typically greater than RPA radius (so the RPA actually misleads); for larger trees the % change is small. But if you have arb consultants allowing foundations to be dug on the edge of an RPA you need to add as much as you can, knowing how much liberty will be taken downstream. >> No I am referring to a bog standard leyland or lawson cypress with no access to the stem as multiple branches prevent access and in reality it is not possible to distinguish branches from main stem. No need for a second or multiple stem for this problem to occur. Ridiculous to think of a measurement in cm let alone mm.

Oh no they don't! Measuring stem diameters for routine arb purposes in mm is simply one of the silliest things I have seen. If someone was measuring the growth of a tree in a permanent sample plot, measuring and recording mm is possibly justified; otherwise it's simply a waste of paper and/or data memory. Yes I know what BS5837 but it simply tells us that its authors knew little about tree mensuration, statistics and data. Measurement to the nearest 10 cm is possibly good enough for most purposes, rounding up. As for branches on complex stems such as cypresses......

You need to go back to whatever documents you have that describe the arrangements for joint ownership. If your drive had a pot hole in it, what procedures are laid down for fixing the pot hole, for example? These documents should clearly set out your rights - right of entry and use of the land for example and may restrict those rights i.e. you probably shouldn't park your caravan or your veteran car collection on the drive restricting your neighbour's access......but precisely what is and is not allowed will depend on that agreement. There may even be a bit about conflict resolution....seeking mediation or similar. Clearly, if unilateral action takes place the whole idea of joint ownership (& management) becomes a bit of a mess. To stop it you would probably need to seek an injunction from a court; expensive, but then anything done contrary to the injunction would be a matter for the court not just for you to seek damages. And of course you have to live next to them and deal with the next joint ownership problem, so best take this slowly. Suggest a compromise on the pruning as others have suggested.

It's fine to advise on the law if you are a lawyer and the practice of the law if you are an arboriculturist. But please don't advise on the law if you are not a lawyer. Yes, if a council imposed a condition whilst the current government guidance applies, you could appeal the condition. A lawyer will advise you (as they have advised my clients) that if you go ahead with the planning development without appealing the condition you are deemed to have accepted the condition. Don't come running back in 6 months or 6 years time & say you didn't agree with it or try to ignore it. Don't think you can get out of it especially if it is a pre-commencement condition & you have started the development. If the condition is not reasonable or vague the appeal process should support your case. But I was dealing with more historic conditions that were imposed prior to current government advice and which, I assume, were not appealed. Clearly a council may take a practical decision and not pursue a breach of an ancient condition but as a professional I don't think you are in the right. Your advice may work but don't fool yourself that it will work 100% of the time. It may not.

There would be a few steps prior to a prosecution; firstly there would be enforcement action; the recipient could then appeal the enforcement action and PI in England would make their view known. However, on a practical level, a good tree surgeon would approach the council and ask if the trees were protected. A tree surgeon would need to see permission granted. As for an appeal, add 12 months onto the process for a decision. So do you work with the council or tell the council that you know the law better than they do? Thus the problem.

There are one or possibly a few councils that have these legacy issues, know about them and indicate that you need to put in a planning application to discharge the condition. It's a planning condition and thus a fee needs to be paid. However, how the hell are you meant to find out about them if there is no means of finding out about them (short of a land charges search)? Whilst it may be described as bad practice, that doesn't prevent bad practice & a planning condition is a planning condition. Breaking the condition its not the same as a TPO or CA offence because the condition needs to be seen in the context of what was allowed. Ultimately, there is quite a lot a council can do to enforce a condition. However, any damage caused needs to be put in the context of what development occurred & how valuable the vegetation was. The condition doesn't state what the council intend to do if you do do any of the prohibited tasks. I think a lawyer would have a field day with the phrase "nor shall they be damaged or killed by fire or by the application of toxic or injurious substances". Does that mean "damaged or killed by fire" or "damaged, or killed by fire". If the former you can damage the tree anyway that you like provided you don't use fire, or toxic of injurious substances but don't fell, top or lop. i.e. nothing stopping you ring barking the trees. And of course, what happens when the trees die? What are the rules then?

Metasequoia or Taxodium. Metasequoia I think has leaflets closer to opposite but I would need to check my facts as it is a whilst since I last looked & compared.

Well, agreed, but at the same time I am happy for tree surgeons to venture into "consultancy" provided they have the necessary experience and training and know what they are doing to produce reports of adequate quality. They need to know where they should not venture (i.e. where they are not competent). Professional bodies can assist the public in such differentiation & explaining and marketing those differences. But they don't help too much in explaining that a tree surgeon who can provide an adequate BS5837 tree survey for a domestic property may not be able to cover much more complex projects. Ah, but they are practising this magical art of "consultancy" (which is just a contractual arrangement in these modern business times, not a grade or mark of distinction) so they can do everything "consultancy". No they can't, & no I can't. The ICF is very Scotland focused and very forestry focused; it's trying it's best not to be, but is.

The basic problem is thinking that there is something called "consultancy"; you have to be a consultant in something. There are few people that can handle everything that is covered by the word "arboriculture". You can get a job as a "consultant" with no experience! Some disciplines are are worse than others - ecology for example. Clearly, if as an arboricultural consultant you are specifying works to be undertaken by a tree surgeon it does help a lot if you have some experience of tree surgery! If you are specifying time and money, even more essential to have real experience of what it takes. I don't think it helps by using labels such as "academic". There are virtually no academics in arboriculture! A good consultant has both experience and relevant training; preferably the training comes before the experience, as the experience brings a lot of learning too, building on concepts and background skills developed during training but those with experience can gain a lot from training but it may be harder to learn if you've lost the skills to learn from books and writing essays etc. Consultants (of any background) with no or little relevant experience can cause problems; my classic one, provided to me in fiver Lever Arch files shortly before mediation which cost the insurance company not much less than £300k was a tree surgeon telling a tree owner that their property might suffer from heave......oh dear. I wonder how little experience of heave he had, but luckily for him he was not sued as we just dismissed his report as sub-professional. Unfortunately, the tree owner had not done the same. Tree surgeons in a court? Depends in what capacity. As a witness of fact, no problem, just as any member of the public might need to do. As an expert witness? I would steer any tree surgeon to appropriate training prior to this, even if they are reporting on an area (such as a work place accident) they know well. If they move onto risk assessment, valuation, subsidence, soil mechanics (e.g. heave) or a whole range of arboricultural subject areas they know nothing about (no training, no experience) they should not even think about it. The simple answer when approached is No!

Jules I am not clear what you are saying & if you are not agreeing, you must be disagreeing.....I am just not clear what it is you are disagreeing with! "subsuming tree consultancy into the ICF": I am not at all clear what you are talking about here - arboriculture has been in the ICF since the beginning; the ICF has had a registered consultant scheme for a number of years. I started paying them £50 +VAT a year years ago (10? maybe more). Their website for this service is crap; nothing else to call it. They know it is (& have had plenty of the likes of you telling them for a number of years) & they are in the process of rectifying it. They held two focus group sessions before Christmas to get suggestions on what needs to be done & I hope it will improve sometime in 2021. So anything further you say will be knocking at the proverbial open door......

Jules You seem to be agreeing that there are a variety of words used to describe people who make a living out of trees and know something about trees & quite a bit of confusion? You suggest it is "easily" sorted out but I expect you have not tried to sort it out (I have!) and it is not at all easy. Lots of different views & people end up in different places, for a variety of different reasons as I tried to explain. A letter to ABI? Crickey, if only it were so easy! Been there, done that. We tried to engage with the mortgage community when we revised the mortgage arboricultural course........the door would not open & they had no interest in what their members were doing, requesting or the sorts of things that arborists (for want of a better all inclusive word) get up to. Wouldn't even read any materials we sent. & if you have an interest at what the ICF is doing about arboriculture you might want to open up your emails & see the special resolution at the forthcoming AGM. Forestry is to be redefined current: Our Charter and the Bylaws the expression “forestry” shall include all aspects of the science, economics, conservation, amenity and art of establishing, cultivating, protecting, managing, harvesting and marketing forests, woodlands, trees, timber and wood. proposed: Our Charter and the Bylaws the expression “forestry” shall include arboriculture and all aspects of the science, economics, conservation, amenity and art of establishing, cultivating, protecting, managing, harvesting and marketing forests, woodlands and trees for economic, environmental or social outcomes So this might be viewed positively to reflect that the charter includes arboriculture or it could be viewed negatively so that "forestry" can be referred to instead of forestry & arboriculture. Take your pick

Paul Good to hear from you; I was trying to be complementary about the AA website! I think the separation of contractors/surgeons from consultants is a fairly easy choice for many people to take. I would have thought that most tree surgeons think they are tree experts (and rightfully so) so I don't think that's a great way forward? They may not be keen to put pen to paper, but that is a different matter. No, Paul, this issue is not about writing a single letter; it is about the industry as a whole getting off and engaging with other professions, the public and the world. The task is huge and the personnel of all organisations change so it is never ending. Convince one person & by the time you revisit they will be gone onto a new job, a new position & you will be faced with another person without the knowledge you imparted to the last.... PS It's easier to be a forester (by the way!). People know what a forester does (well, as much as they need to know).......it's not too much more complicated than the word "tree" for the public so they can say the word too 😉 .

So, they have said what they want, but you disagree with them? You are a "qualified tree surgeon" yet you admit that you do not have the qualifications or experience to undertake what they want. You seem surprised and want to blame the insurer for being a bit vague. I am approached as an arboricultural consultant & expert witness for my advice on a variety of subjects. After a brief conversation, sometimes I say I am not qualified to address the described problem, even though they are looking for an arboricultural consultant and I am one! It's not a problem, unless I do not identify and admit the problem & wander into territories unknown. I recommend others, where appropriate. I will give you two examples: a local authority said they wanted a report from a structural engineer, where a tree was reported to be damaging a nearby wall. The local authority did not say what they wanted the structural engineer to say or report on, so the tree owner asked them to comment on the tree. That, after all, was what the tree owner had contacted the council about. They wanted the tree removed. The structural engineer duly reported, with 95% of his report about the tree; the crack in the wall was only mentioned in passing. A waste of several hundred pounds. The council's arboricultural consultant's report was mostly about the wall, although it was a little more holistic! Lesson learnt: good idea to describe the issue you want someone to consider, rather than just focus on the job title or even profession. A professional will know what they are competent in and what they are not competent in. It's not a problem other than for someone who is looking and cannot find the right person. Second example: an insurer wants a report on someone's medical condition. Does the insurer decide what type of medic they want the report from? They may, if the medical problem is clearly identified. They may not and, annoyingly, having got the report of one medical expert, the insurer says, all well and good, but we want a report from another expert from a different discipline. Expensive. Insurer's fault? Maybe they could have been more precise but the shortcomings of the first expert's report only became known after its receipt. It is unfortunate but maybe no-one is to blame in a complex situation. As for a definition in BS3998.....well BS charging policies mean that such a definition won't be known to many. Back to my original point, if the professional bodies don't continually promote appropriate nomenclature, please don't blame the public (which includes the staff of insurers). We as a profession have chosen to use an unpronounceable word ("I would like to speak to the arb...or....[halt, whilst telephone user focuses on the word arboriculturist to see if they can spit it out. 99/100 fail]. Do we really wonder why someone might use the term "tree surgeon"?