Jon Heuch

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.

Khan v Harrow Council and Kane is not a case that sets a "precedent". It was a case determined on the evidence put before the court. It does show that it is possible to successfully argue the case for negligence against a tree owner......but that may not be possible in all cases. Please remember that there is an ABI Domestic Tree Root Agreement between many of (but not all) the insurers of domestic property. https://www.abi.org.uk/globalassets/files/subject/public/home-insurance/2017/abi-domestic-subsidence-claims-agreement-and-guidelines-december-2017.pdf Google "abi domestic tree root agreement" & you will see various commentaries. In a large proportion of domestic tree root claims (domestic tree owner; domestic property damaged) the issue of liability will never be pursued because people comply with the agreement; it is only when they don't (i.e. they refuse to abate the nuisance) that the legal implications need to be considered.

As Gary has indicated, phone the council let them know of the date the council received it; provided they didn't ask for extra information you may be able to persuade them to back date it. The old planning portal (now privatised) used to have a clear statement that councils had to work from the date of receipt.....I haven't been able to find it recently. It was useful to remind councils of the correct procedure.

I put in applications all over the country...…..& they even have the check to say that your application may be delayed if the notices don't get put up...…..it's not too bad if there is a houseowner resident in the house with an interest in the decision - it can be done...….but it might require printing out and sending in the post with appropriate pins/ties. But in other locations, it has to be ignored!

The regulations 12 (1)(a) and 12(1)(b) use the phrase "under an order"; the required register is not just a list of tree work applications. Clearly 99% of people are only interested in trees on their or their clients property and being able to search by property is essential.....but with larger & older orders covering multiple properties, especially where there is a dispute, it's highly desirable to look at the management of the order as a whole & in the round.....if the council has allowed trees to be felled as part of the order but is not allowing my tree to be felled there is an argument to be made that there is inconsistency and unfairness involved...…..but arboriculture on the whole is stuck in the management of individual trees or small groups of trees so it's clear why this type of issue hasn't been raised much in the past. Before 2012 for older orders the register (and remember this requirement was described in the order, not in the regulations) had to include all details of compensation paid. It would have been an interesting exercise to collate just how much councils had paid up......but I doubt any councils kept that record for public viewing.....no-one asked for the information....& it's not required any more so it will be a difficult exercise to drag out of any councils in the future.....I have seen a few FoI requests for this type of info & there are various reasons why it can be withheld.

Ah....the "register"! I haven't checked on Scottish matters to see how differently the Register issue is, but I am unaware of any English council keeping a "register" as defined in the law. I have seen a few old TPOs keeping a handwritten record but most councils will point you to their on line database of planning applications.....which don't allow any searching via the TPO, merely by an address. Some time ago I heard a few tree officers saying no-one had ever asked to see their "register" - there is meant to be one for each TPO. So does anyone know of a council that does keep a "register".....? That might be available for public viewing?

i) good point about land charges but.....they charge and typically their starting charge isn't cheap. I haven't tried an informal approach though. ii) Quite correct about not being able to initiate such a challenge after the time limit, but at the same time if the council were to attempt a prosecution they would have to show beyond reasonable doubt that an offence had been committed.....and without a confirmed order (except for the newest ones) they can't do so. The onus is on the council. I now have data from several councils on what proportion of TPOs served have been confirmed......it's quite damning - a TPO without confirmation cannot be assumed to be confirmed. As for the photocopying lark, we almost all have to deal with photocopies - typically the one made when the order was initially served. One council (Thanet to be blunt) that admits their legal department don't have any of the original TPO documents prior to a certain date. The photocopy they do have of their large TPO covering much of Broadstairs (dated 1956) does not include all of the areas listed as protected - whoops! I know they have no evidence of confirmation of any of their older TPOs...…..problem! Well they did have an unprotected spreadsheet listing dates of confirmation (many of which were a Sunday)…..but they have lost the spreadsheet (I have it!). Other councils may have similar problems but I haven't come across one quite so bad. Rumour has it that they may be recruiting a tree officer - sounds like a challenging job!

Pah! That's a titch......here we are in Bia national park in Ghana....oh yes & there is a lot more upwards! The gun is for forest elephants....we didn't see any.

Interesting & thanks for sharing. Well if this your thing I am sure there are lots of other opportunities.....but as you now know it's hot work! As for what is in those holes.....I remember being on the walkway at Kakum National Park in Ghana with the Park Manger who warned me off putting a stick into a hole....very likely a large snake which would have come and said hello. It's a little more serious if you are tied to the tree! About ten years ago I met someone called Barrell who was involved in getting film crews into tree canopies https://uk.linkedin.com/in/andrew-barrell-54117643 …..looks like he has moved on, but he might be able to give you a few pointers. There are a whole range of US conservation bodies involved in tropical forest work varying from the Smithsonian to Conservation International so I would get in touch with them if you want to see more of the world.....& try to get paid for it!

As Paul has indicated a root ID is probably the best idea but I would suggest going straight to the people that do the ID rather than through a third party - you will probably save a bit of cash. Typically £50-70. You need to include a good cross section including bark. Avoid the smallest roots but that doesn't seem to be your problem. The tree root ID labs are: Richardsons http://www.botanical.net/ EPSL http://www.innovationpropertyuk.com/environmental/services/european-plant-science-laboratory/ No 3 based in Perth, Scotland....no website as far as I am aware They're all incredibly busy at the moment as a result of the 2018 heatwave, so good luck. Root barrier......it's a lot of effort when NR are causing the nuisance & need to abate it themselves. & tell NR they will need to pay for the root ID on top of abating the nuisance.....small claims court etc comes to mind

Ven You ask four specific questions: 1) Council: how are they involved? Conservation Area - it's a simple notification & you need no evidence, but they can serve a TPO. If you are being asked to remove trees on the basis that a structural survey has listed the trees as a "risk", you are in a sorry position. All sorts of things might happen but there is no need to worry about them - men may land from Mars etc etc. If there is no sign of movement after the summer of 2018 I would take quite a relaxed view on how birch trees might affect a house. TPO? You will need evidence & the council are likely to refuse. What appears to be an oak may present a greater risk...but without more details I cannot advise. 2) Can you remove in one go or gradually. This old wives tale (& I have some respect for the wisdom of old wives!) is difficult to get rid of - if there is a heave risk, there is a heave risk. Removing trees gradually is not thought to be a means of avoiding this. 3) Not sure what you mean: the foundations are set; you can't do anything about them. 4) Are you an arborist or a structural engineer or a builder? If there is a problem it is primarily with the soil underneath the foundations, not beside them (although heave can cause lateral movement)…….probably for a metre or three. Unless you have expert knowledge and lots of experience don't even think about digging into the ground. My advice: i) the houseowner should have typical domestic house insurance including as standard heave, landslip and subsidence. ii) if you are just removing the trees you make sure you are acting under the instructions of another professional. i.e. you are just a contractor iii) if you are providing advice you have professional indemnity insurance (on an ongoing basis, not just this year as this could come back to bite you at any time in your career). At least £1 million. iv) in terms of an arborist report, I am not sure this is really going to be of much assistance - it might provide you with ii) and some experience might assist in an assessment. it might be of assistance in putting the structural report back into its envelope and avoid removing any trees at all......but that might put you out of a job?