Andy Clark

A very mature view and I agree, but I'm glad to say I've never had a situation turn sour and be tested in courts.

 

But out of curiosity, what is your view of what should happen if the cost of removing the arisings chucked over the fence was as much as £1,000 and the tree owner wanted to raise an action to recover this cost of removal? cost of

In that respect I'm not sure to be honest. I think, and don't quote me here, that the tree owner would have grounds to recover the cost - even though the branches are their own.

Simply because there was no obligation on him to not let the branches overhang, so did not have a duty to keep the tree/hedge sides up to the boundary - thus has suffered a loss that he had no legal obligation to suffer.

And similar with the neighbour, In as far that personally i don't believe that the client would have grounds to recover the cost of disposal, or impose that the tree owner pick up the tab.

I know others have suggested differently, however there is no stipulation that the neighbour must not let his tree branches overhang a third parties property - the stipulation is only that what ever branches do overhang, do not cause an actionable nuisance. (Health and safety risk, direct damage, indirect damage).

And even then, the neighbour is only obliged to remove/remedy the nuisance. If that nuisance is one dead branch that is causing a health and safety risk, he only need remove that one offending branch, not side up the whole tree. Same with anything causing damage - he only need negate and remedy the damage, not landscape the entire garden or rebuild the entire house.

If the third party choses that they do not want the branches overhanging their property, then that is their choice and I believe they are bound by all that goes with that choice.

The important thing to remember about Tort and Common Law, is that it is benchmarked and judged against the dutiful actions of a reasonable person

There are no real set rules of what one must or must not do, but if someone doesn't act reasonably and causes a tort to another, then the other party can seek recompense from that person that their unreasonable actions caused a loss.

So the established standpoint is that they are "obliged to offer" the arrisings back to the owner. And the owner can of course say "no thanks". This negates the historic principles of theft, that came about from when wood/fruit had a substantial value.

As for dumping the arisings over the fence, regardless of the neighbour saying "no thanks", it would depend the consequences of throwing it back over.

For example if it was thrown over and smashed the neighbours green house, then they would have grounds for a claim. If it was council land, then the council could pursue for fly tipping, or if ended up on the footpath could pursue for obstruction under the highways act. If it was simply thrown onto an open expansion of the neighbours lawn and caused no loss or damage, then apart from causing a feud, there's no real grounds for a claim.

If all else fails, try and avoid being dragged into any dispute between neighbours, and just stick to what you believe is reasonable.

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Get on to the Council Tree Officer on Tuesday morning. If you can't get hold of him/her, then the Councils Planning Enforcement dept.

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Be very careful with this.......

I know of a large consultancy firm that got sued, after they failed to utilise the 5 day notice period for a tree that they'd identified as being defective.

The tree was a large mature tpo'd oak, identified as having a large over-heavy limb with a significant cavity and decay near the trunk. They made recommendations to heavily reduce the limb - but the limb snapped out, hitting a neighbouring resident, while they were still negotiating the consent for the reduction with the local T/O.

The consultancy firm were sued, on the basis that they had been employed as professionals, and in the course of their work had identified the defect but failed to take the relevant steps to rectify it - I.e, because it was dangerous, they should have ignored the consent process, and just submitted a 5 day notice.

On the same basis then, I would suggest that you too have been employed as a professional, to give advice to your client - who would therefore have a claim against you if your advice is then found to be not sufficient.

If, as the professional, you believe the tree is dicey, don't waste time negotiating consent, for works that you don't need consent for. If you think the stability of the tree has been compromised and is at risk of collapse, then you can of course take whatever reasonable steps are required to rectify that risk under the 5 day notice.

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That's a big loss indeed!

 

But, seems like a huge amount of tools left out in one vehicle overnight?

lol The kit wasn't in the truck. Well, not to begin with at least.

The kit was inside a locked steel cage, which was inside a locked (wooden door plus steel inner security door) depot.

The truck was parked in front of the depot.

The little darlings jimmied the wooden door, sledghammered the inner security door, then jimmied the cage.

There are six trucks in total, and they took all 6 sets of keys that were inside the inner office in the depot. LUCKILY, the other 5 trucks were parked down the road, so they only made off with the one parked directly outside the yard.

Would've been a whole lot worse if they'd've discovered the other 5!

Folks, would be grateful for people spreading the word.......

The Grounds Maintenance team from Tower Hamlets Homes, the Councils Housing ALMO, were visited over the evening of 15th Feb '14.

Taken during the moonlit flit -

One Ford Transit single cab caged back tipper - Reg. BD08AFJ VIN. WF0FXXBDFF8B65395. White cab, with Tower Hamlets Homes logos on doors, with black painted cage.

Plus shiney stuff listed below with serial numbers and models -

177408482 Stihl FS 410 C-E Professional Clearing Saw

177519819 Stihl FS 410 C-E Professional Clearing Saw

177435393 Stihl FS 410 C-E Professional Clearing Saw

177519797 Stihl FS 410 C-E Professional Clearing Saw

177311966 Stihl FS 410 C-E Professional Clearing Saw

177352476 Stihl HS 81 R Double Sided Hedge Trimmers

177352481 Stihl HS 81 R Double Sided Hedge Trimmers

177352467 Stihl HS 81 R Double Sided Hedge Trimmers

177352473 Stihl HS 81 R Double Sided Hedge Trimmers

296100857 Stihl HL 100 Long Reach Hedge Trimmer

296100473 Stihl HL 100 Long Reach Hedge Trimmer

296100764 Stihl HL 100 Long Reach Hedge Trimmer

296485340 Stihl HL 100 Long Reach Hedge Trimmer

295914956 Stihl BR 500 Backpack Blower

296850290 Stihl BR 500 Backpack Blower

296434719 Stihl BR 500 Backpack Blower

296434710 Stihl BR 500 Backpack Blower

296434713 Stihl BR 500 Backpack Blower

295744962 Stihl SH 86 C-E Vacuum Shredder/blower

295744968 Stihl SH 86 C-E Vacuum Shredder/blower

295744961 Stihl SH 86 C-E Vacuum Shredder/blower

295744972 Stihl SH 86 C-E Vacuum Shredder/blower

968670852 Sthil RE128 Plus compact cold water pressure washer

Any help well recieved. Possible reward for info leading to a succesful recovery of the stolen items.

To flip this on it's head, you could always advise your client to respond to the Highway Dept, advising that the trees are TPO'd, and as a consequence are not prepared to do the works that they have specified. .

The Highways Dept would then be tasked with getting the works done, which would of course mean THEM dealing with the TPO issue......

Your client then just sits back and waits for the bill for the works to come from the Highways Dept.

Granted, not the ideal solution, but a lot less agro then getting stuck between two LA depts who probably don't even talk to each other.

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Let's throw this into the mix and get the grey matter ticking.........

http://www.designcouncil.org.uk/documents/documents/publications/cabe/making-the-invisible-visible-summary.pdf

What are the necessary steps to becoming an arboricultural consultant of the highest level, I keep getting large firms asking me for tasks I'm not qualified for. I.e protected trees around building regs etc. but I'm unfortunately not qualified enough to sign my advice off officially

Good for you! And very impressive that someone accepts drawing a line and recognising their own limitations.

There are lots out there that would have jumped at the work and taken the risk, just to turn a quick buck.

You should give yourself a pat on the back, seriously.

Matt,

I know a bloke in Bedford - highly recomendable.

I'll PM you.

"A Metro spokesman said: “The CAVAT method reflects a tree’s contribution as a public amenity and cannot be used to calculate a tree’s replacement cost.

 

“In his report Mr Turner has ascribed a value to the replacement trees on the day they are planted, rather than when they have reached any maturity."

 

I hoped /dreamed CAVAT would be about cost-benefit analysis - ie adding £14m to the bill for lost trees makes the project uneconomic?

or eg the price of any house that to build requires removal of a mature tree must reflect the value of the tree - say £50k minimum?

Excellent find Silvia,

I think the key thing with CAVAT is to remember the realm in which it came to life, and then use it in a similar vein. ie, in dealing with mitigation of tree related building damage claims, primarily subsidence - in view of pressure from one party (the claimant) to fell the tree, Vs pressure from the other party (the LA) to retain the tree.

Outside of that context, the system doesn't really work that well for any other application.

I mean, the principle of the system allows the T/O and the claimant to be on a level playing field and meet in the middle, by being able to both demonstrate a monetary figure relative to their own respective standpoint.

- eg, claimant has building damage that will cost £5k to repair if the tree is removed, £15k to repair via underpiniing if the tree remains - T/O has a tree worth £40k - thus the two can begin negotiation to look at the most cost effective way to find a resolution.

In the example above, it is of course in the LA's interest to pay the £15k damages to underpin the property, than to loose £40k in asset value. Everyone's a winner.

Ok, i've used it in defence of other damage related cases outside of subsidence - such as patio damage, tree pushing over wall, tree roots cracking car park etc...... but the principle is always a matter of HOW you use the figures. Namely, with the tree being woth "X" in monetary terms as an asset, then it is better to invest further in terms of repairs, up to a negotiated threshold indicated by the monetary asset value, and the tree gets to stay without a repeat of the damage -

- Trees worth £150k have caused cracking to a car park

- Car park costs £20k to resurface - if the trees remain it will cost another £20k in "X" years time as the cracking will undoubtedly re-occour, hence pressure to remove the trees.

In the "olden days", justification to fell would most likely have been reached by the value of the costs of the tree works - £10k in tree work costs to fell vs consequtive £20k's to continually repair.

But alternatively, taking into account the loss in asset value of the trees if removed, we can now quanify a rationale to invest an additional £10k to the £20k surfacing cost to fascilitate a Cellweb type engineering solution, and the trees can stay.

- everyone wins

And i think that's the key issue in the Leeds Metro case. Right valuation sytem, wrong application of the resulting figures, resulting in a square peg being used to try and fill a round hole.

It shouldn't be a case of "We've lost £14m in trees, so we need to spend £14m in replacement planting" - That's just never even going to be possible.

The figure should have been used to chivvy the planners to go back to the drawing board, and then applied as a template to justify further investment into "other" solutions that may have meant that the trees could have stayed - namely, "Do we loose £14m in asset value, or do we invest an additional £2m in re-working the project to make sure the trees can stay?".

Same principle with your house building scenario - it's not so much about adding value to the property or making the builder pay for £50k's worth of replacement planting, more about reaching a quantifiable point for bringing pressure to the builder to invest further in the project and find an engineering solution to ensure that the tree can stay.

Hope my ramblings make sense?

Putting aside the obvious banality of retrospective assessment which IME is the norm; the TEMPO "TPO defensible" threshold is too easily achieved by all but the poorest trees - those that fail are so blatently undeserving that it's hard to imagine anyone even contemplating assessing them in the first place. The end result is that in the rare event that a TEMPO is undertaken in advance of serving an Order it is a fait accompli. If you know anything about trees (and the process assumes you do) and can imagine assessing it, then it's TPOable under TEMPO.

Tony,

I think the point that's been missed though, regardless of the rights or wrongs of the system itself, is that the system is realistically only intended to provide a papertrail that an assesment was made, and act as supporting evidence to show how the conclussion to TPO or to not TPO was reached.

I don't think it's meant as a "how to guide" for a TO, who, agreeably, should be able to walk through the TPO process with their eyes closed.

On the flip side though, I have actually used it a couple of times in anger, but from the other side of the table - to argue that an exsisting TPO wasn't worth the parchment they were written on, and thus grounds for refusal of works were totally impractical.

Tree officer from the council has given me a verbal assurance they will give the OK to fell a tree in clients TPO'd woodland - in fact they recommend that, but the client only wants a reduction / re-shaping. The tree is not dangerous, just a bit manky and in the wrong place. I intend to only do the reduction that the Client wants. On the TPO application is it best to apply for the work I intend to do, or to apply for felling, so that if client changes their mind in the next 2 yrs we can take it out without more paper work.

 

In other words, do you have to do the work as specified on the application, or can you do less?

Definitely just apply for the works you intend to do.

The T/O should only grant or refuse consent, they shouldn't suggest alternative works - with the exception of imposing conditions of consent, but even then those should be based on the works you applied for.

For example, if you apply for an all over 30% reduction, they can come back with a condition that you only reduce half of the crown in order to restore shape and re-balance the crown or whatever.

Similarly if you apply to fell, they can of course impose the condition that you re-plant.

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Definitely worth a read but (and I don't mind being controversial) far from convincing as proof of the validity of CAVAT. He says" As responsible tree owners, we cannot allow people or firms to get away with damaging our trees, and CAVAT is an effective way to hit the culprits where it hurts and reduce the likelihood of them reoffending." The fear of expensive litigation and of the unknown (bearing in mind we are talking about builders, with no knowledge about tree valuation, who damaged trees) is enough to make them back down. How many of them carried out their own CAVAT valuation, and cross checked it with a Helliwell and CTLA valuation, and then folded because of the overpowering credibiulity of the Council's case? Not many, I suspect. If any.

 

How about if he had said "As accountable public bodies, we cannot allow people or firms to get away with damaging our trees, and CAVAT is an effective way of demonstrating the cost to the public purse and recovering that amount from the culprits." But he didn't. It just sounded instead like sabre-rattling.

Mostly because of context. CAVAT was the asset valuation methodology given fair support by other industries outside of the arb world, as being fair monetary valuation of trees as a public asset - hence the JMP.

We really do need to stop comparing apples and oranges here, as if these systems do the same job in the same way. They don't.

A worthy arb, in my opinion, will always be savvy and open minded to all of these systems, and keep them in his tool bag to be used as the job dictates.

.

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http://www.asca-consultants.org/membersSection/archive/appraisal/pdfokWz8eJI1K.pdf this is a sort of interesting read

Good find

I was looking back through CAVAT stuff today -

http://www.ltoa.org.uk/resources/cavat

The text from Jim Chamberlain at Islington is well worth a read.

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Anyhoo, the salient point is that "Amenity" and the concept and principles thereof, are enshrined throughout much much more than just trees and tree preservation.

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I don't agree entirely about listed buildings, the statutory purpose of listing is to preserve buildings that are of special architectural or historical significance. They may have local context but otehrwise are not location-sensitive. A stately home would be just as worthy of listing if it was at the end of a long driveway as at the end of a short one. One couldn't say the same about the public amenity value of a tree.

Fair comment.

But aesthetic appearance is also one of the statutory criteria for listed designation.

Pretty building, pretty tree - hence why I used the word "similarly".

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THe relevant Guidelines are not too long to reporoduce here in their entirety.

 

 

 

3.2 The Act does not define 'amenity', nor does it prescribe the circumstances in which it is in the interests of amenity to make a TPO. In the Secretary of State's view, TPOs should be used to protect selected trees and woodlands if their removal would have a significant impact on the local environment and its enjoyment by the public. LPAs should be able to show that a reasonable degree of public benefit would accrue before TPOs are made or confirmed. The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath, although, exceptionally, the inclusion of other trees may be justified. The benefit may be present or future; trees may be worthy of preservation for their intrinsic beauty or for their contribution to the landscape or because they serve to screen an eyesore or future development; the value of trees may be enhanced by their scarcity; and the value of a group of trees or woodland may be collective only. Other factors, such as importance as a wildlife habitat, may be taken into account which alone would not be sufficient to warrant a TPO. In the Secretary of State's view, it would be inappropriate to make a TPO in respect of a tree which is dead, dying or dangerous.

 

 

 

3.3 LPAs should be able to explain to landowners why their trees or woodlands have been protected by a TPO. They are advised to develop ways of assessing the 'amenity value' of trees in a structured and consistent way, taking into account the following key criteria:

 

 

 

(1) visibility: the extent to which the trees or woodlands can be seen by the general public will inform the LPA's assessment of whether its impact on the local environment is significant. If they cannot be seen or are just barely visible from a public place, a TPO might only be justified in exceptional circumstances;

 

 

 

(2) individual impact: the mere fact that a tree is publicly visible will not itself be sufficient to warrant a TPO. The LPA should also assess the tree's particular importance by reference to its size and form, its future potential as an amenity, taking into account any special factors such as its rarity, value as a screen or contribution to the character or appearance of a conservation area. As noted in paragraph 3.2 above, in relation to a group of trees or woodland, an assessment should be made of its collective impact;

 

 

 

(3) wider impact: the significance of the trees in their local surroundings should also be assessed, taking into account how suitable they are to their particular setting, as well as the presence of other trees in the vicinity.

 

 

 

 

The word amenity is in the Act, the purpose is very simply stated. " If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order."

 

 

 

There is no latitude in the Act for different LPAs to use TPOs for different purposes. But it is up tot the LPA to decide on expediency and amenity. The lack of case law as to what amenity means might be partly a result of there being no right of appeal to a TPO being made. I agree, context is everything. Even so, you may have noted that the Guidance says that LPAs "are advised to develop ways of assessing the 'amenity value' of trees in a structured and consistent way". Maybe we should all ask our local Council if it has done so.

Glad you agree that context is everything.

So now let's put trees and amenity and the LA TO into context of the much wider remit of both an LA Planning dept as a whole, and the TCPA as a whole, and remember that trees and tree preservation only in fact play a very small part in that wider aspect of the "amenity" criteria........

- The LA's powers to serve Section 215 improvement notices for example, in respect of land and/or buildings adversely affecting the amenity of an area.

- All of the other factors in relation to Conservation Areas (ie, not just trees) and the Conservation Area principle being brought to life by the Civic Amenities Act.

- Similarly with Listed Buildings.

So I think that, yes, you've quoted the section from the "blue book" with regards to amenity in respect of trees, but I think it's key to remember that the principles of "Amenity" doesn't just start/stop with trees and TPO's. The principles of "Amenity" are well enshrined throughout the whole raft of the many aspects of planning legislation - and have been since the inception of the overall Act back in the 40's and the rebuilding of the country after the war.

.

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Its the only standard reason that I've received in thirty odd years, and I'm yet to understand the criteria on which it is based. So a pretty tree seems, to me, as good as reason as any

Well of course it would be the only reason, purely because. the sole purpose of a TPO is to preserve a tree based on its amenity value

So exactly how is the rationale decided to classify the amenity value? Surely there is a policy document that everyone refers to, for the sake of classification. Otherwise one authority tree officers idea of amenity value can be different to another's. That is, it becomes a subjective classification!

Via guidance notes, such as the "blue book" that was, plus subsequent revisions, (which I believe is currently being re-written to coincide with the 2012 Regs); via CPD events, run by the respective TO associations and independent arb consultancies; in Peter Annett's day at the ODPM/DCLG, I'm also pretty sure he used to publish bulletins and updates also; advice notes from the AAIS......

As for one Authorities idea vs another, again, of course it would be different - in exactly the same way as one tree in one location is extremely different to another. A mature oak in the heart of a major conurbation is not the same as a mature oak in the heart of the Cotswolds. Granted, both are mature oaks, but both have a very different relationship in respect of their surroundings. Both TO's would therefore appraise each tree differently - as they should do.

So again, it's simply that missing magic word again. "Context". Which can mostly be found when reading Chapter 3 of the blue book (as revised) .

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I hardly know where to start in expressing my disagreement to what you have said. This is a Forum, no0t a courtrooom, and of course I would always encourage people to express their minds in the interest of debate but on the other hand bold well -artuiculated statements are fair game for criticism.

 

 

 

I shall put it to you in this way. It is often said that if it aint broke don't try to fix it. But there was a time when people were burned at the stake for refuting the accepted wisdom that the world is flat. Courts are generally arbiters, they are reluctant to interpone themselves in a debate by suggesting a third option or (as I like think) the right answer. If Helliwell is accepted in a case over CAVAT, it doesn't mean Helliwell is right, it just means that the arbiter preferred it to the alternative in all the circumstances of that case.

 

 

 

I'm probing here. A number of questions... Do you really think that there is no room for improvement. Do you think that Helliwell is suitable for purpose? Do you think TEMPO is better in some circumstance? And (most importantly of all) do you think it is unnecessary to debate amenity tree valuation in a public forum because everyone already understands it or maybe because it doesn't matter of humble arbs don't understand it because they are just following orders and rules?

 

 

 

I'm not looking for a fight but I am taken aback by your dismissal of debate. I want to know what people in the business think about it. It wuld be paricularly convenient to my understanding if you present a representative view. Please pitch in again.

I'm not dismissing a worthy debate, I'm dismissing a pointless debate.

With the greatest of respect, the one consistent thing missing from the thread is the question of context.

Until that is applied, it's mostly irrelevant.

As an example, you pitch helliwell is fit for purpose...... What purpose? Assesssing the monetary assest value of a tree in relation to an insurance claim? No, I don't. And neither do a hell of a lot of others, as is evident with the creation of CAVAT, and the joint mitigation protocol.

So when the thread is reflective of the methodology's and their accepted individual application, in context, then we might start getting somewhere.

Next? .

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Cup size?

We could adapt some of criteria from the hazard evaluation methodology's - specifically the portions that relate to size of part.

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Their salary would be the obvious starting point (from the employer/employee perspective at least) might be different for the person who was expecting fair weather and got PWT!

Not necessarily. Surely the salary would be recompense for their monetary value as a quantified asset, not as an amenity?

Paying salary based on amenity value would surely be discriminatory?

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I'd now be thinking that the 'Amenity Value' ( so much loved as a reason for saying no by the LA), if it includes well being, must ergo include such items as SuDs, carbon sequestering, air quality- both good provisions and bad, water filtration/purification and polluted water storage -phytoremediation.

 

The definitions for amenity are a bit vague and are certainly not all inclusive

 

noun (plural amenities)

a desirable or useful feature or facility of a building or place:

the property is situated in a convenient location, close to all local amenities

 

[mass noun] the pleasantness or attractiveness of a place:

developments which would clash with amenity

 

 

I always think, or the idea comes to mind, that a refusal on the grounds of the visual amenity of a tree is a way of saying, 'It's a pretty tree so we will force you to keep it'

It's not so much a "much loved" reason to say no, it's a subjective view of the tree, as a tree, in context of it's surroundings - both in the immediate and wider proximity - plus historic use of the surroundings, and prospective use of the surroundings - all made in respect of the duty to retain trees placed on an LA by the TCPA.

Hence why we also have the appeals process, so that the Courts can add their ten-penneth to the equation also if need be, and agree/disagree on the TO's rationale for classifying the tree with an amenity value as such that it is worth retention.

If the judge agrees that "it's a pretty tree", then so be it.

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so what's your opinion on the 'favourite weather girls (or boys)' thread? :lol:

 

 

 

Don't hold back now:lol:

I think many of our weather girls/boys are a great amenity asset, and should be celebrated accordingly.

Now if we could figure out a way to apply a monetary value to those individuals, based on their respective amenity value, then we'd certainly have a subject worth debating.

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I've just put my thoughts inside the quote above Andy. All I can say is, I have found it a useful thread.

And now you have, it makes a lot more sense.

Would I be fairer then in saying that this is perhaps more of a learning curve for you on the use of the methodology's themselves, as opposed to a debate about the relevant application of the methodology's?

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