Andy Clark

Not sure if it's the "biggest", but it's certainly a major factor. A lot of architects, developers, even home and land owners, still don't even realise that 5837 exists, or that general trees, not just those with tpos or under cons area constraints, come under general planning policy protection. You often find, still, that no matter how strong your survey is, if one is even done, and how much detail your method statement contains about site supervision and tree protection etc, you get very little more than a "ok, we'll be in touch" when you submit the final copy, and then never hear from the client again.

Would love to be a fly on the wall and read the responses that they get to this. My spider sense tells me that they are more likely to receive examples of bad practice than of good. Hopefully I'm wrong.

Looks like 240v domestic supply - min safe working distance of 1m.

Light loss and leaf fall are pretty well established in law as not being an actionable nuisance - thus not a reason for the neighbouring landowner to take any action what-so-ever. In terms of the local authority, they will be powerless to enforce the landowner to exceed their duty and cannot force the landowner to prune the trees for the reasons given. There is only a handful of real routes for action; 1 being the high hedge legislation within the ASB act, but only where groups of 2 or more conifers are present and thus constituting a hedge. The 2nd is the miscellaneous provisions act should the trees be deemed dangerous, but only of that danger extends to public access areas - such as any park, open space, common land that may be impacted on as well as your clients land. Misc Prov act is powerless where it is private land. 3rd one would be the Highways Act, but again, similar with the Misc Prov, could only be brought to bear if the trees also posed a hazard to any nearby highway. In short it's likely to pretty much boil down to a neighbour dispute, until such time as the trees pose a defined actionable nuisance - and even then, the neighbour need only take the necessary action to remedy or recompense the nuisance, which is likely to be a lot less than removing the whole tree.

I would certainly echo the comments of Paul. In many cases, trying to accurately assess and apportion 5837 categories can be like trying to fit the proverbial square peg in the unfortunately non square hole. I've often found myself stuck in the quandry between B1 and A2, trying to wrestle between a trees material condition and it not being the perfect specimen, and "well it may be a bit scabby, but would look absolutely beautiful if afforded due protection and made the centre piece of the development". In all cases and in all my end result reports, I try and give an explanation and comentary of why and how I've reached the conclusion that I have. So I would suggest trying that. Tick the box and plump for the most obvious category for data collection purposes, but then go on in the write up of your impact assessment to explain and give an account of your dilemma.

Given how many TPO apps I've had sent back over the years because the wording on the application form differed, even slightly, to the wording on the submitted site plan, I'd say you had a fair claim. The law however seems to say different...... In Mynors, tail end of pg 582, reference is made to the matter of Robinson v East Riding Of Yorkshire, and goes on to quote the High Court thus - "No doubt it is desirable that an up to date plan should be used if possible, but what the regulations require is that the map 'shall indicate the position of the trees.' Provided that the plans attached to the order are sufficient to achieve that objective, it is of no consequence what so ever that they may be outdated and/or inaccurate in other respects". Mynors does go on to say that "where the map and the schedule are inconsistent, it must be a matter of judgement in each case as to whether each should take precedence over the other - or whether the discrepancy is sufficient to render the order invalid." Further, he goes on to say that "There seems to be no basis for the confident statement on TAN 10 that "in any discrepancy as to location, the map will prevail". So all in all I think you have a point for debate, albeit one that you may not be able to back up by precedence.

Each Local Authority is different in how they administer their records. Some larger authorities will have an online portal with maps and all the details online, other won't. Always best to e-mail the Duty Planning Officer directly, give them the address relating to your enquiry, and get them to confirm if there are or aren't. At least that way, you also have a paper trail, and no risk of your own missinterpretation of any maps.

The Green space audit bit is what is puzzling me, as LA'S generally tend to do this to their own land. The clue's in the name really "green space". Silly question maybe, but where is the tree located? I'm assuming it wouldn't be covered under an LA green space audit, if it was in a private residential garden........

She's a big ol' girl alright. My money is on direct damage by root lift, as opposed to indirect damage by subsidence.

Try also using FCIN12 - http:// https://www.google.co.uk/url?sa=t&source=web&rct=j&ei=wcXEVI3QI4LYaortgIAM&url=http://www.forestry.gov.uk/pdf/fcin12.pdf&ved=0CB0QFjAA&usg=AFQjCNF87wwBuJLcBunQryUraR4A6Pt8dg&sig2=qxEagj9segOmJ1Ek6bJnfQ and try and get a proper age to the tree. As much background history as you can muster will add weight to your counter argument for retention.

The Council are unlikely to TPO the tree unless it presents a major asset to the wider neighbourhood. For example, how many people can see the tree? Would it's loss have a major impact on the wider neighbourhood? How obvious are the signs of damage to the cow shed already? TPOing the tree would then pose the Council liable to the neighbouring landowner - and they're not gonna take that liability on lightly. I would be inclined to not panic and knee - jerk, and just wait and see what happens regarding the damage. It may be totally unrelated. If the neighbours approach you, insist they go through their insurance and insist on a proper investigation to be carried out in order to conclusively prove that it's the yew tree that is causal to the damage. In the meantime, get a CAVAT or Helliwell valuation done on the tree, in order to attribute it with a monetary "value". That way, if the tree is, for agents sake, worth £50,000 asset value, and repair of damage is only £10k, you can argue that removal of the tree is disproportionate to the cost of repair, and thus argue to keep the tree.

Excellent, that's great news. Just goes to echo those immortal words of Bob Hoskins...... "It's good to talk.".

Your best bet whilst still at the early stages of design, would be to commission a local Arb consultant to carry out a survey in accordance with bs 5837, and then have your architect design the garage/driveway etc around the constraints that the trees appear to pose. That way you will be able to demonstrate to the Planning Authority that you are being sympathetic to the trees, and thus more likely to obtain consent.

Yeah, of course. But in context of this being a dead tree next to a play area, I would hazard a guess that it's not something that wants to be left standing. With a Section 14 Notice, you are informing the LA of your intent to do "whatever the work is". To which the Council can do one of two things - object, or not object. They can't put replacement notices or stipulations on their response to the Secion 14 notice. If they wanted to do that, they would have to object, at which point you would then have to go for an 8 week TPO works application - to which they could then give consent, with stipulations. But the point being, find me an LA that's going to object when you tell them you're going to fell a dead tree next to a play area.

In civil law, the occupier of the land is responsible for it's condition - and previous case law has deemed that the "occupier" is any party that is in sufficient control over the premises. This means that all parties subject to a lease agreement are in some way joint and severally liable - be it the landowner, the landlord, or the tenant, all have some part to play in the liability chain. Under criminal law, both the council and the farm estate, would have duties under the HaSaW Act and the MoHaSaW Regulations to do all that is reasonably practical. As for the TPO, a Section 14 5 day notice should be served to the council to use the DDD exemption, and then work with the Planning Authority to get the No Objection processed pretty rapidly. Most local authority can turn round a No Objection notice the same day, so there is no reason why the tree could not be felled within 48 hrs, with a few tentative branches removed to ensure the tree is safe while the No Objection notice is being turned round.

None taken Chris. To clarify, I didn't mean for the RPA to be modified within/by the MS...... The point i was trying to make was more that the subject of "the ability to modify the RPA" could be just be referenced as secondary info within the report - for the architect/engineer/planner to follow up on - rather than for the report writer trying to determine modification; which I understood as the question being asked by the op

I think the point that's been missed on this thread is that is modification of the RPA actually down to you to determine? Don't get me wrong, we don't know the spec of your survey brief, so it may be the case that you've been asked to give such info, bit if not, and you've just been asked to carry out an impact assessment and do a tree constraints plan, then of course you are only really there to report on the trees that are on site from a purely factual and unbiased perspective. RPA modification is something that you could cover in secondary info, such as within an Arb method statement, and then be left up to the architect/engineer/planner to argue. I guess what I'm trying to say is just be careful that you're not getting drawn into acting outside of your remit, and inavertantly get embroiled in the stuff that should/could be down to the other parties in the development process. I know of several 5837 surveys that have been rejected by LPA's, purely on the basis that the arb surveyor was clearly not impartial within the report.

The employer is usually ultimately responsible. Be that the customer, the contractor, or any sub contractors. Each have a duty to ensure that the people they employ act safely and are suitable qualified etc..

A waiver is unlikely to get their go ahead, but it would definately be worth walking around with the landowner before starting work, to look at the site and agree with them beforehand anything that you notice is damaged. As CJM says, get plenty of photos, and turn the time/date capture on so that they are time stamped.

If the trees are pushing the wall over, then that totally changes the perspective on this matter. If the trees are causal to Direct Damage, then that becomes an actionable nuisance and the landowners have a duty to recompense you for any material loss you incur in having to rectify the damage. Take photos of the damage and get 3 quotes on what it would cost to repair. Include costs to remove the parts of the trees (including whole tree removal if that's what it's going to take), and send them a copy of everything. Politely advise them that you are giving them choice of rectifying the problem themselves at their expense, and put them on notice that you will have no choice to carry out the mitigation works yourself and pursue them for your incured loss if they refuse. And most importantly of all, keep us posted on the outcome.

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Just a couple of extra pointers that might help...... Don't forget that you are only allowed to take the relevant steps to reasonably abate the nuisance/problem - I.e aim to remove/prune only those roots that are ACTUALLY causing the damage. If you start trenching 3m deep through the root plate when just a bit of sensitive removal of 3 or 4 roots would have solved the problem, then someone in the LPA is likely to get the hump. And try and put some form of method statement in place to define how the works will be done. In an ideal world, quote NJUG and try and ensure that the guidance is strictly followed. I.e, all works done with hand tools, cut end covered with hessian, arb officer called to observe the works if major roots (above 25 mm dia) are found and due to be cut. It all goes to add favour by showing you intend to do the job properly and professionally.

Oh I don't doubt it.

Yeah, I wouldn't take that as read really. 5837 "should" have played a part in that in respect to the planning consent in the first place. Sounds like a rare occasion that slipped/was blagged through the net to me.