Jon Heuch

There are a variety of reasons for this mess; one is that our professional bodies (jointly) need to agree on a terminology & then get out there and tell everybody what the difference is between a tree surgeon and a consultant. They haven't & they don't, although the AA's website by itself helps. There is a discussion to be had & I've been in previous discussions which tend to go not very far. So the AA had "tree contractors" for a long time as their main brand. Luckily someone eventually woke up to the reality that Yellow Pages (as it was) was not interested in changing their listings for "Tree Surgeons" into Arborists or Arboriculturists or something even more obscure e.g. Arboriculturalists & the AA now uses Tree Surgeons. That's one step forward! However, they are still "Approved Contractor" if they get through the AA's accreditation. Just to confuse matters, the ICF is considering a "Technical" membership grade (discussions still continuing) which will confuse matters further. So please don't blame insurance companies for the mess of training levels, courses, job titles, accreditation that arboriculture and forestry have created and continue to propagate. People don't want to know that some people think that a consulting arborist is different from an arboricultural consultant. Or that an arborist differs from a tree surgeon. A member of the public needs to speak to someone about their tree? Yell.com shows "Tree Surgeons" ....stick arboriculture or tree consultants into their search box and you get.....tree surgeons. That's why I don't advertise on Yell.com any more because I get phone calls from people who want.....tree surgeons! Google does help a bit in allowing differentiation but with tree surgeons offering "consultancy" services things can go around in circles!

Aviva clearly has been sloppy in their wording. Do they want an inspection of the building or an inspection of the trees? Or both? It's fraught with difficulties (i.e. risk) but most likely will come to nothing (you won't be sued).....so let me tell you what I would do if I was asked to attend the site and charge them several hundred pounds? I would record each tree, its size, its potential size and its distance from the property. I would need to look at the structure of the building in terms of its design and whether this was susceptible to subsidence or not (have I seen this before, after 1000+ subsidence cases). Clay soil or not? There is probably some degree of risk regardless of facts, but what are you going to recommend? If you don't know what you are doing you may recommend removal of all trees close by. If you have some experience, you might say relax, there is a degree of risk & that is precisely why you take out insurance - there's a risk and you pay the insurance company to worry about it. Based on your visit, the policy holder has done precisely what they have been asked to do and you have told them that no tree works are required. If they don't require anything in writing, even better; just record that you have attended site and recommended no tree work. Give no more details. The more you give, the more risk you take, & then come on my training course with the CAS when we are back to normal & you can learn more!

I'm not answering the question, but I can say that Kirklees showed beyond reasonable doubt that they need to pull their socks up! Their note 2 of the Decision Notice was out of order in 2012, let alone in 2021......simply outrageous to be so out of date and mislead applicants in that way.

Replanting can be enforced, but the tree officer has to be switched on; what evidence do they have of a protected tree? If there is a large stump, clearly there is evidence of a protected tree. The council can serve a replanting notice & they could prosecute too.....but the area order does not help as it can be vague.

I hope you have the TPO plan with associated schedule? I hope you are clear that there is no other TPO lurking in the background that you are not aware of? If the schedule of the TPO lists no individual trees T1 etc, no groups G1 etc, no woodlands W1 etc then I assume you are left with one or more areas A1 etc. Each should have a description of what is covered within each group. Trees that are younger than the date the order are served are not covered by the area designation; nor are trees planted since then. I am not sure what you mean by "outside of the TPOd area but within the new boundary". If they are outside of the areas shown on the TPO plan they are not protected. What is the relevance of the "boundary"? Once a tree is dead its removal becomes an exception to the TPO - it can be removed without seeking permission from the council. However, you need to read s206 of the Town & Country Planning Act 1990 - (search for "What are the considerations relating to the duty to replace trees protected by a Tree Preservation Order outside woodland?" on gov.uk) & you will see that there may be a duty to replant. The difficulty for the council is that if they have no record of the tree being there in the first place (because it is an area order) they may find it difficult to enforce the lack of replanting.

Oh dear! What a big mouth! Especially when he is wrong! I have his report that he mentions & it may come back to haunt him.....& suddenly after a few days in the "jungle" he has become an expert on Sumatra. I wonder if Mr F-L could tell us how many felling licences he has successfully applied before he came across this one? He might discover an awful similarity in wording between the one he quotes from & criticises & the one the "little guy" gets given. Don't mention the TPO to the FC & the FL doesn't cover exemption from the TPO. That's why it says it across the front page of the licence! Nothing special there. I wonder how many words of Indonesian he knows? How much he knows about Indonesian forest policy? Well I first went to Sumatra in 1979 & worked in the Ministry of Forestry in Jakarta (Manggala Wanabakti) on and off between 1994 and 2010 or so (I need to check my cv for the precise details). Who was my main client....the European Commission. Does EU policy lead to unintended consequences? I'm sure it does but really the EU has become a bit of side issue in Indonesia. Japanese demand for plywood was a much more significant force in logging Indonesian forests starting in the 1960s, through the 1970s, 1980s & 1990s, taken over by the much greater demand by China for everything from 2000 or so. Oil palm does of course get into many products & demand for oil palm underpins the desire to turn degraded forest into oil palm plantations......but most of lowland Sumatra had been logged by the time Yves Laumonier wrote his book "The Vegetation and Physiography of Sumatra" in 1997. It was then logged & logged again corruptly and illegally and only then, assisted by the likes of APP (Asia Pulp & Paper - look it up!) remaining forest land was cleared with the logs disappearing into pulp and cheap photocopy paper that YOU may have unwittingly bought. Oil palm conversion really is at the end of the long process of converting high quality "orang hutan" habitat ; clearly orang hutan have retreated into whatever habitat is left for them, mostly highly degraded forest. I suggest you look up Harapan on the RSPB website ......it's a good example of what can be done with rainforest adjacent to the oil palm plantations. The oil palm provides jobs & economic development taking the pressure OFF the forest.

You are right that the table is based on mid length diameter & therefore is really only appropriate for a log that is on the ground but it will give you a rough idea of volume.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/826786/TimberVolumeCalculator.pdf I need to check the precise terminology but it is the volume of timber that is of interest, not the volume of wood. Branches are mostly irrelevant. You therefore need to consider small end diameter and the larger it is, the smaller the volume of timber for any particular tree. You would not be expected to get it to the nearest cm cubed and a rough calculation based on the shown calculator should be sufficient. My reading of the table is that they might say one large poplar tree could be more than 5 cubic metres.

I will have to look at the specifics of the last one I did, but not so much a condition as a bloody big label on the front page stating the same. You would either have to be blind or have the backing of an AA Registered Consultant who tells you that a felling licence "trumps" a TPO (I'm not jesting) to think you have permission to fell, when you do not.

Julian There are slightly bigger guns at play: agriculture & forestry don't want to get caught up in the planning regime, which is focused on "development". If you want to get into the meat of that interface look at "permitted development" rights that cover agriculture & forestry. .....it's great for potential disputes for non-farmers and non-foresters starting to develop land. The interaction of the FC & local authority is slightly more nuanced than you suggest; the FC want to be able to issue licences for felling commercial crops. If you have a 50 year old crop of pine in Surrey, the FC don't want felling to be restricted by planning. if the trees are non-commercial and the applicant has clearly no interest in restocking and long-term forestry it's a different matter. The FC would probably be happy to let the LA get involved. Careful reading of s15(1) of the Forestry Act 1967 is required as there are two clauses - notification and referral. Clauses 15(2) and 15(3) then come into play depending upon the track taken by the FC. Whilst you describe this, the nuance about the trees and the FC interest is missing. One important consideration with regards to TPOs and Felling Licences is that there is a small box on the felling licence form asking whether there is a TPO on the trees in question. Ignore it and the FC may issue a felling licence that is NOT overriding the TPO. You heard that right. Or more clearly, the felling licence process does not involve consultation with the local authority. You can have a felling licence (& I have heard of one prosecution where a new purchaser inherited the felling licence from the the previous landowner) which does not allow tree felling where a TPO applies. The felling licence always says this, but some consultants talk about one "trumping" the other. They don't. Both sets of rules apply, with separate exclusions, and the cross overs are defined. Remember too that felling licences cover felling & there are key exceptions that mean that arboriculturists may have little experience of FLs; if you want to prune lots of trees without any felling you will never need a felling licence. if you want to fell lots of trees in domestic gardens you won't need a felling licence. May the FC consult with a local authority where there is no TPO? It would probably take an aware forestry officer to find out the trees were in a Conservation Area if they were not told in the application form. The FC do not generally check on planning status and will issue felling licences without any knowledge of TPOs etc. Remember felling licences can be granted to the likes of the Highways Agency for trees along a major road......miles and miles, through several different local authorities. It can get even murkier as the a FL should only be saught on land under the control of the applicant (or their agent), but they may, by mistake possibly, cover land in private ownership......so a landowner can find themselves with a FL even though there they have no knowledge of the application process and no knowledge whether the applicant ticked the TPO box or not.....that's when life gets interesting (for lawyers!)

Paul I have read what has been posted to date & I can see that the lack of clear joined up legislation means you think you are falling into a legal crack. It is clear that you could have applied for a felling licence (and you need to do so if you are planning to go over the volume limit, provided you are not in a domestic garden) and if you had done so you could have avoided the local authority. However, what the local authority has done is simply wrong. The whole s211 notice thing needs to be read alongside s211(3). Provided you can prove that a) you gave notice to the council clearly stating what you intend to & to which trees and that you acted between 6 weeks and 2 years after serving notice AND provided no TPO has been served you have a defence if charged. In such circumstances the local authority cannot "touch" you. If they really are incompetent and starting proceedings a simple letter stating the above should puncture their bubble. If things really did proceed to court best to get a lawyer but I can anticipate some serious egg on face. So, forget the non-determination letter; you could just write back and thank the local authority for confirmation that they have been notified on a particular date. They have already confirmed that they have been notified by writing to you, so this is not compulsory. All you need to do is tell them, and you've done that. You could then proceed to fell < volume limit every quarter. Nothing either the local authority can do other than serve a TPO. Nothing the Forestry Commission can do either, but probably best to take some time stamped photos of your progress. Getting a felling licence? Yes, the paperwork reflects their interests in woodland management so you will be asked for areas of land involved and you will be asked as to how the area will be restocked and it will go out for public consultation on part of their website that really was quite difficult to find even when you are looking for it. But in cases like this, where the FC have no real interest, they may well turn it over to the local authority for comment.......! If you feel you are in a mine field, you are not alone!

I believe this is quite a complicated subject; paints on cars changed a number of years ago. Honeydew can lead to problems, even if it is merely having to wash the car. If you have a snazzy car wonderfully polished (I don't; I think I have cleaned my car about once a year) you might have an argument to make, but it would be highly useful if you also were able to identify what reasonable step or steps you wanted the tree owner to take. Tree removal? Probably unreasonable? Tree pruning within reasonable limits? Possibly.

Ultimately, the planning officer & the tree officer to a lesser extent will need to consider what might happen if the matter went to appeal; is their argument reasonable? does it carry any weight within the context of the planning priorities & policies? would an Inspector overturn the council's decision for refusal based on the tree officer's desire to remove trees? I think it likely. I would just stick to your guns and make sure that the trees are the only reason the council wishes to refuse the application. Most planning officers would probably listen to the tree officer & then ignore them. Planning permission granted!

Heave can be an issue when a large tree is removed that is significantly older than the property, or where new houses are built on land that was recently wooded. If the house was built in 1930s & the trees appear to be decades old at best, you should have no concerns over heave. If the porch, boundary walls or other items are more recent that relationship may be more complex but simply ensure you take out standard building insurance and it will include "subsidence, heave & landslip". If something did occur it would be a matter for your insurers to sort out.

I think you know the law doesn't say that; it is more nuanced than that and of course the Perrin v Northampton case spent quite a bit of time exploring the word "necessary". If you can't cut a protected tree down without permission because it is damaging a building, I think that suggesting that tree pruning of protected trees can take place because someone thinks they are causing or even may cause a nuisance is sailing close to the wind....well, to continue the nautical analogy you could have the wind taken from your sails, or even capsize if you are not very careful.

The law is not quite so clear cut as Jules has made out; but clarifying the law will depend on what law you are considering. If a nuisance is being caused by a tree root then it is for the tree owner to abate it; if they do nothing, and the affected person has to take matters into their own hands then the procedure outlined by Jules is good practice, nothing more. I have in front of me a barrister's written assessment of the situation (a similar case, where damage arose). Is the law clearcut? No, how any case develops will depend upon the facts of the matter. The liability associated with a tree remains with the tree owner; the liability associated with the cutting of roots remains with those cutting the roots and if contractors/agents or someone else is involved, with the principal too (i.e. the person paying the bill). Following root severance, if the tree falls over or dies, there may be a case to answer. My typical approach is to seek a quotation for the repair involved (and any other work associated with the nuisance). Send it to the tree owner; give them a bit of time to mull it over, along with the suggestion that a trip to the Small Claims Court is being considered (OK, online submission). 30 days should be enough. Depending on the size of the quotation, you may find the tree disappears of its own accord (provided tree surgeons are available in the time frame).

Are they a waste of time? It very much depends. If a council require one prior to granting planning permission, there is a strong chance that, without a "strong" condition, the AMS may be left to one side. An AMS produced early in the planning process is inevitably tree-centric and may be impracticable. Has the arborist thought about where the site office is going to go? How large is the office going to be? The architect won't know. The planning consultant won't know. Where are site vehicles going to park during construction? Where will site materials be offloaded & stored? How will the construction be phased - the previous points may all change during the project? I encourage the AMS to be written when the contractor who is going to do the work has been chosen & I can talk to the appointed site manager (prior to the machines arriving on site). If the council is going to take 2 months to approve the AMS the delay may work in the favour of this approach, if planned well.....or it might not if the more typical general mellee of rush rush takes place. If the council condition an AMS after granting planning permission, condition arboricultural supervision and condition a sign-off condition at the end of the work from an arboricultural consultant to say that the works have proceeded in line with the AMS, there is a stronger chance that the AMS will both be respected and complied with.....but no guarantee as few plans anticipate the gas, water, electricity, drainage, internet connections in the detail required to undertake an AMS. it is only when you have the site manager in your grasp that you can pin him down and make some sense of what they think they are going to do.....even then their plans will change and once you turn your back you will be told that some service run has to go in a particular location etc etc....that is, after they have excavated and told you that they didn't see many roots, but they can't explain what that big piece of wood is on top of the earth that came out of the trench...

Well, it's a case & clearly judgments were made in the law courts......but it is of no great relevance other than, if a judge was presented with the same facts & evidence they may and only may come to a similar decision.....but they could come to a different decision.....The fact that the Court of Appeal made a judgment does NOT mean that the courts have in some way determined that all parish councils (or any other tree owner) has to inspect their trees every two years or that every "high risk" tree needs similar treatment....& that's me writing as a non-lawyer with just a smattering of knowledge of what these things mean. Consult a lawyer or do a bit of googling to understand the difference between obiter & ratio decidendi....& then consult a lawyer!

Nimby Simply put there are no "minimum requirements" if you are looking for a written standard against which you wish to compare your qualifications & experience. You can advertise yourself on the internet.....without any qualifications & experience.....& if people respond & ask you to check trees out (whatever language you use) & you do so & they pay you, you have a business. Lots of people do this......you just need to Google to see what's out there. If the clients don't ask you about insurance, if they don't know what the difference between a NPTC logo and a LANTRA PTI course is & you have some nice software & some experience of tree surgery (or you could be a tree surgeon yourself & just offer to undertake the work you are recommending), you could even dress yourself up under the banner of being a "consultant". Nice! But your initial question asks about "risks". There are lots of "risks". There is a risk you get it wrong. A "system" may assist you in being more thorough, keeping better records, defending any claim that does come in. I have been asked to review a small number of professional indemnity claims where a "tree surgeon" has been considered to have surveyed/checked trees. The absence of records makes a defence quite difficult.....& of course the reason for the investigation is that there has been an accident and or a claim. We might hope that the use of a system might reduce the risk of their being claims, or if there were a claim, that after preliminary investigation, no right minded arboricultural expert would be willing to opine that what had been done was not adequate.....my own experience is that a methodical approach that some systems provide means that whilst inspecting large numbers of trees a record is kept of what was done.....so it will be easier to audit post-event. I won't say that any system is better than any other system. From what I have seen there are strengths and weaknesses to most systems. The inherent strength of any inspection is the experience and knowledge of the person undertaking the inspection, but we have little guidance on how much "inspection" is required. 1 minute per tree, 5 minutes per tree, 15 minutes per tree.....on average? You ask for case law: I have already pointed out Cavanagh v Witley Also read Poll v Bartholemew You will be looking for a needle in a haystack with Poll, because you will be looking for details of the survey undertaken prior to the event. It almost gets forgotten about. The survey prior to the accident in Cavanagh v Witley plays a greater role, but you would need a verbal confidential briefing to understand how the tree surveyor was not pursued further.....or maybe they are being pursued.....but it's just not in the public domain for us to find out. So, in brief: i) no minimum standard, in terms of being stopped from working ii) applying no standard methodology or using an idiosyncratic methodology for tree inspection/risk assessment means a) you've probably reinvented the wheel, or not b) you're making life harder for yourself & running greater risks than you need to iii) when I ran a team of consultants in a large consulting organisation, the upper echelons would look at risk assessment work & simply ask why would you want to do it......small fees......large risks......doesn't make any sense. It doesn't matter whether it is tree risk assessment or flood risk assessment or any other form of risk assessment. All it takes is one high value claim.....& the more trees you assess the more likely it is that a tree doesn't behave itself. So bear that in mind!

You just need to read the cases where accidents arise after trees are "inspected". What typically happens is the land owner gets sued & their insurers settle. The land owner's insurers sues the "inspector", dependent on what insurance they have in place - the more insurance, the more likely you are to be sued. If the "inspector" is an employee or has either none or next to no insurance, it is possible that they "get away" with it. Egg on face, embarrassed possibly.....but if you wanted to inspect trees again, you might find your reputation had taken a bit of a hit. Read the Cavanagh v Witley judgment & you will see a name in there....permanently imbedded in the public domain, never to be removed. The system used to inspect trees is pretty irrelevant unless your professional body has given you guidance to use one or to adopt a particular approach or method; in the absence of that, you are pretty much free to use whatever system you want, provided it makes some sense....preferably to more than just yourself. There are no minimum standards in terms of qualifications or experience & that makes life a bit tough for potential clients, who normally have no idea where to start. Consequences? That's why you have insurance - professional indemnity insurance. If you are routinely checking trees you might want to have £5million cover, but £1million is more often the norm (& cheaper!). If anything happens you pass the matter onto them.......

Simply: i) evidence does not need to be provided with a s211 notice so the best approach to this is, as Edward has suggested, are you prepared to serve a TPO on the tree(s) to prevent the works taking place? If not, let it go. You may be able to negotiate with some applicants, but it depends who they are and what they know. ii) for those that you are prepared to serve a TPO simply contact the agent or applicant and make your concerns known...say a TPO will be served unless the information is provided. Give them the timeframe. iii) TPOd trees? Government guidance provides a long list of evidence that should be provided. Bureaucrats will ask for this & this can be a pain, but sometimes useful; in law, the applicant has to show, on the balance of probabilities, that the tree(s) are a material cause of damage. That is all. If they haven't done this (prove their case, not produce the long list of evidence) you are right to refuse the application. If there are leaking drains near the area of damage, they have to be discounted. However, if level monitoring is showing clear seasonal movement, the drains are probably of little relevance.

openreach.co.uk/wayleaves The wire I assume is owned by Openreach, part of BT. To install they would need the agreement of landowners - the term is wayleave. your lawyer may be able to find some details but openreach should be able to clarify what your options are

So the way to do this is to understand you shouldn't rush to your opinion without first stating the facts on which your opinion is based. It may be bloody obvious to you that it's a case of the wrong tree in the wrong place, but step back: i) measure the garden - width, length; estimate/calculate the area. Take any other structures (sheds, ponds etc) into account. ii) measure the tree - height crown dimensions - East, West, North and South. Calculate crown area iii) put ii) on top of i) iv) describe the implications of iii) whether it be shading, dropping branches, leaf fall....possibly gardening is affected by the tree - what can't be done as a result of shade/dry soil etc. Take the relative aspect of tree and house/garden into account - South, North etc v) describe the condition of the tree and what options are available for its management; possibly recent history may be of significance - whatever has happened. vi) think of the future - how is the tree likely to grow....or not? what will be affected by such growth? Look at points ii) and iii) again. Is retaining the tree just delaying the inevitable? vi) neighbours may or may not be affected by the tree?.....not just their opinions, how are they affected? vii) consider the wider landscape in terms of other trees and what the loss of the tree might mean. When you put all of the above into account you will probably come to a conclusion as to how the tree is best managed....felling may seem to be the best option......but you need to argue your case convincingly not rush to the answer first. The council tree officer may just be of the mood that it's a protected tree and removal of protected trees is against council policies...…..get them to argue their case on your terms - that a large tree in a small garden is acceptable.....and then present that to a planning inspector. If they ignore your argument they allow you to argue in their absence; if they do engage, they will have to make their case just as effectively as you have. Their opinion is worthless without the argument.

The council can't unilaterally "withdraw" an application; it's your application and they can only put it to one side if you have, in writing, agreed to do so. So if 8 weeks have passed and they haven't determined it or have made a statement up to say you have agreed to withdraw it when you haven't you might be able to appeal.....but that's 6-12 months wait for a decision and if you go the fast track you will be dependent on what you put in your original application.....was it good enough for an appeal? But most importantly, what were the given reasons for refusal on the second application? You may want to appeal both applications together so the reasons for the second may need to be addressed.