Jon Heuch

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?

The system works like this where a felling licence is required and a TPO applies: 1) If you tick the box on the felling licence form, the FC liaises with the LA and the felling licence trumps the TPO, if the felling licence is given. 2) You don't tick the box, so the FC makes the decision without consulting the LA and without taking the TPO into account and any resulting felling licence doesn't trump the TPO. Implement the felling licence in such conditions and you're felling protected tree(s) without permission......we all know the consequences of that. Egg on face for the applicant; no defence for the contractor......if it's as clear cut as above.

Sure does. I have a site where the LA served a woodland TPO (on a woodland) knowing that the site was in their local plan for development purposes. Most of the trees have been cut down as a result.....but the woodland TPO remains and all the landscape trees planted with the development are now covered by the TPO. It's a really silly situation and a great disincentive for planting trees but I expect few people will wake up to the legal reality until it's too late. As for serving new TPOs prior to the tree being planted, you need to look at regulation 3 from 2012 which references the model order at the end of the regulations. Section 4 of the model order covers the situation.

If you think you have clarified what you meant, it hasn't come clearly across! What do you mean? Immortal (biological or otherwise) means "living forever; never dying or decaying". Well, we know trees decay whilst still remaining alive so that is one weakness. Trees don't live forever - can you point me in the direction of single tree that is an example? There are of course some very long lived trees about - some single stem specimens (red woods that are large & have lots of rings). No doubt they are very resilient. There are groves of trees where vegetative regeneration has led to new shoots, whilst the older shoots have decayed. The organism has effectively stayed alive even though older parts have died. Not very common though. Most trees however accumulate dysfunctional tissue. Most of the trees we know in the UK have to generate new tissue for conduction every spring - the older xylem becomes dysfunctional due to embolism. An obvious feature in our countryside is the die back of oak. Quite what causes it is a matter for discussion but the tree cannot support its mass of leaves from the conducting tissue and roots available. I am sure most of us have found completely dead oak trees around. There may be many reasons for death......

>> Well you did raise a red rag to a bull...... What can one tell from a single visit to a tree......probably a lot less than if one has had the benefit of two or more visits with seasons and time intervening, but we are often asked for our opinions and decisions may need to be taken, rightly or wrongly, from individual visits. I don't need to list observations that may suggest a tree is in decline. Dieback from Chalara is an obvious topical one. Dieback doesn't mean it is going to die but it is reasonable, based on current evidence, that more than 50% may die (i.e. more likely than not)…..but it's probably better to wait and see now. Weeping stem wounds on a sickly horse chestnut...….well how long a list do you want? I doubt whether you can justify your statement that trees are immortal....we have very few really old trees and, using your argument, because the environment is constantly changing - whether it be wind, drought, flooding, competition, insects and disease etc. Those old trees that we do have are only a few hundred years old with very very raw exceptions.

It's a bit of a moving target.....things are in development & BGS would prefer you to go through a third party (who currently doesn't exist) who would take out a licence with the BGS and take away the administrative hassle. A cost of as low as £3 was mentioned the last time I talked to them (before Xmas)......until that third party is available (& who would if BGS is willing to offer the same for £3) it's a little up in the air. I would make contact with them and see what they have to say.

Gary That sort of schedule (T2 is so many metres from T1 etc) becomes extremely difficult to work out when trees T4, T5 and T6 have been lost and you want to find T7 (or you don't have access as they are now in separate gardens!

I would forget the telephone, just write to the head of planning (or CEO.....but you will know it will get passed on). If the Council has put their misunderstanding in writing you can attach this. If you really want to wind them up put a FOI request to ask how many such errors has the council made over a certain period......... I have an ever increasing collection of decision notices (and other correspondence) from Councils with very clear mistakes. If I have time I write back informing of their errors and pointing out the consequence of them. I sometimes get an acknowledgement with a suggestion that they will do something about it. Here are some examples: 1) reference to the 1969 regulations (I jest not) in a 2015 decision.....with reference to compensation clauses in the order (i.e. someone hadn't woken up to the 2012 regulations. I have just checked a January 2018 decision notice for the same council......and yes, it still refers to the 1969 regulations! However, they have removed all reference to compensation. 2) statements to say that appeals can be lodged from 8 weeks to 6 months (variable between decision notices but all in 2015). 3) reference to Article 5 certificates (in 2015) Now that more planning officers are dealing with tree work applications the text of some correspondence matches the words for a planning application for development........& that leads to a few problems!

I just wonder how much time is spent finding out details about TPOs. Let's do some back of the envelope calculations (Enrico Fermi style): There are 418 councils in the UK (I may be counting 22 county councils unnecessarily) There were at least 1700 tree surgery firms advertising in Yellow Pages in 2011 covering most of southern England.....we might put that up to 2500-3000 for the whole of the UK. 3000 firms working 200 days a year possibly leads to 300,000 separate jobs (each job 2 days)......so is that 300,000 checks with councils as to whether trees are protected or not? Clearly this is a right back of the envelope calculation but it's not just a few people both seeking the information and councils having to answer..... Those checks will need to go ahead regardless of how the council provides the information......what a waste of time and money if it has to be done manually with a council employee having to search a GIS on the telephone. I am just setting up an auditable TPO search work activity......all via email so we have a trail covering all councils......nightmare!

Gary I've never had this specific problem but I would be happy to provide this information if the council were able and willing to: a) allow a reasonable way to find out whether a tree is protected, or not. b) when the answer to a) is yes then to provide free and ready access to the necessary plans & schedules. If the answer to both is No then they don't get it! If I got what you are getting on a regular basis and provided your client is prepared for the wait I would just appeal the application (yes non validation is a reason for appeal but PINS may not have to accept it) and then seek costs when the appeal is decided. Remember costs from a planning appeal do not have to follow the decision - they are justified on the grounds of being unreasonable. Just get the council to document their demands. I would prefer to go to a hearing rather than the fast track. It's much easier to put your argument forward and to counter anything that is raised face to face. Once the council has a costs decision against it it is likely to think twice before doing it again. An alternative approach is to seek the electronic copy of TPO schedule and plan via FOI/Environmental Regs. There really is no justification for a council not to have all its TPOs scanned as PDFs and readily available. What does the tree officer do to check an incoming tree work application? Do they open the council solicitor's safe and root through several hundred legal orders or do they have some simpler method for checking? The orders may not be downloadable from a council website due to that being a bigger project but this transfer of information really should be on the list of things to do, unless tree officers like to waste their time answering simple questions like "is there a TPO on my property?"

Any pictures you can share?

Going on the course is a beginning - it provides the basic information, shares the pitfalls, highlights the risks and I hope provides you with a greater level of confidence about what you are doing; the new course provides a means of accreditation - it hasn't worked its way through yet so we are still trialling it.....but it's a lot more thorough than it was. Do you need to go on the course to provide such reports? Of course not - there is no minimum qualification for any arboricultural report, & you don't need to have insurance either. If you don't have insurance you are much less likely to be pursued for damages too....so there is something to think about! The lack of minimum standards in providing arboricultural advice is a subject that is "hot" at the moment as there are a lot of duff reports out there. The question is are you being professional? Do you know what you might get wrong, for starters? Will client's suffer.......we simply don't know....and will the trickle of professional indemnity claims develop into something more significant?

Well.....as one of the people who has spent the past year reviewing the syllabus and updating the course handouts I hope you would not offer to provide services without getting some evidence that you are competent to provide them (?) Providing a "template" report will not tell you much about what is required and why you need to be careful about what you say in such a report. As for geology and risk you can start off with the British Geological Viewer at the BGS website and you should be able to get them to produce a risk profile for your site (£10?); alternatively/additionally, try the iGeology and/or the mySoil apps. Landmark do something similar.......but the big question for you is what are you going to do with this information? As for the location of the course this is pretty much on a demand basis - if there is enough demand the course can be held anywhere........find a suitable location, drum up some support and attendees & hey presto the course can be on your doorstep!

I agree 100%....with the world waking up (after Blue Planet II it appears) that plastic pollution is a problem (not just in the seas) perhaps we need to wake up to the fact that planting trees is not always 100% environmentally friendly. What about the stakes and ties that remain for ever, showing that no-one has ever anticipated the need for removal. A year or two ago I sat down with a supplier of these tubes and asked what the procedure is for disposal.....he didn't even have an answer suggesting he hadn't even thought of it. More recently we removed the tubes from an old planting scheme of ours. It is amazing how bulky they are and the fact that you need some form of commercial vehicle to take them off site.

I am afraid there is the norm and then what you actually have for insurance. The norm is this: i) you may have insurance that covers both your building and your contents. In which case you need read no further. ii) you have separate buildings and contents cover (different policies either with the same insurer or with different insurers). In this case your buildings insurer would cover damage to your property but the third party/public liability risk clause is likely to be in your contents insurance. This is not the case with ALL policies but is the norm (or was the last time I looked!). So your tree falling and causing damage/injury to a third party is a matter for your contents insurer. If you don't have contents insurance you don't have insurance to cover this.

Why not?