daltontrees

Mynors says that TPOs have to be recorded as a local land charge under the 'planning charge' heading. I know nothing oif the english Local Land Charges Act 1975 but it may be that it allows for areas rather than positions to be recorded.

Addendum - btggaz made a usepul point in the original thread; the exemption reliant on planning permission can only be used 'so far as such work is necessary to implement a planning permission'. 'So far as' can be taken to mean 'no more than' and 'necessary' seems to mean 'unavoidably required'. Getting planning permission does not therefore give you carte blanche to do what you want to TPOd trees. If your site ha planning permission and there is a TPOd tree on the site in the corner where there is no effect on it of the development but you chopped it down anyway, the exemption does not apply and you could/should be prosecuted. If the tree is outside the site but it's roots are inside, the same rationale applies. Prosecution for unnecessary root damage. Help me out here guys and gals, it's not very conclusive if I have to answer my own question.

Paul, in the original thread I have had to clarify that the developer should in theory have checked for TPOs on the neighbouring land, since it is the tree and its roots that is TPOd, not the land. However, one of the normal ways of checking is to do a land registry search, as TPOs are recorded there. But the land registry is land based, not tree based, and the only land showing up on a TPO search will be the land on which the above-ground parts of the tree originate (i.e. the butt). It may be perfectly competent for a Council to make and record a TPO that shows the area they expect to be within the RPA. BY recording a circle of land centred on the tree, for example. Rather than by recording a dot or the address where the tree is. But I can't see this ever happening.

We are using different editions of Mynors, my page numbers and paragraph numbers don't correspond to yours. I did quote Lemmon v Webb though. I said I had read Mynors, not memorised it. I thought I had given a very thorough argument on why the consent might not override TPO restrictions. The wording of the Regulations does not seem to exempt anything done to a TPO'd tree below ground, except uprooting the whole tree.

Mynors, cover to cover.

Have done, but subsequent to you posting I have looked into the 'mischief' matter, see my comments.

The roots are TPO'd. The abatement exemption doesn't apply. I am not at all convinced the planning permission exemption applies. If anything it appears not to.

I have found the relevant section in Mynors First Edition, s 3.6 in particular if anyone wants to look. It is clear-ish to me and has been fo a while that there is a considerable difference between encroachment and nuisance. The confusion is compounded by intermittent use of terms such as trespass and negligence. But it helps to stick to encroachment and nuisance. And then a distinction needs to be made between roots and branches. The latter's encroachment is clear and even the loss of light for the neighbour is an actionable nuisance. That is the clear standing of the law form Lemmon v Webb. With roots it is not that simple. Roots form a tree on a boundary will inevitably encroach on neighbouring land but this is not a nuisance. For it to be a nuisance damage has to be foreseeable and likely, if not actual, and attributable to the roots and the tree. Importing the distinction between encroachment and nuisnace into the Planning Acts, it becomes clear as has been shown in case law, that the use of the necessary abatement exemption is dependent on the nuisance being not just encroachment but actually causing damage or foreseeably will cause damage. The temptation is to dismiss Lemmon v Webb from the roots situation, but Mynors adds a comment from the judgement that I think is what you referred to and which is highly relevant to the generality of nuisance from trees. "Where there are two ways of abating a nuisance the less mischevious is to be followed". However, I am so clear in my mind now that roots are so different from branches, insofar as nuisance has to be proven by damage, that the abatement of nuisance exemption does not apply to roots as it does to branches and would not apply in this case. I am certain there is case law that shows that 'necessary' means just that, not 'desireable' or 'possibly needed' or any less clear and less extreme interpretation. Greater minds than all of ours have propnounced on this stuff long ago, and reading Mynors guides you along their footprints. So the aforegoing brings me full circle to my earlier conclusion about this and why I dropped it, albeit I got there by a shortcut on the first visit.

Thanks I have only the first edition for now, so I will have a look there. Lemmon v Webb is such an ancient case that perhaps Dr Mynors has not reformulated his view between the first and second editions.

David, cheers for that but rest is far from assured. I have just read the Homeowners Tree Advice general rules. They cover the Forum owner(s) but not its members. They recommend that proper advice is taken but do not state any disclaimer on behalf of members about reliance on members' advice. I will mull it over, but as it stands I can see no reason why I or anyone should try to be helpful to punters (or fellow Arbtalkers) in my free time for no reward if there is the slightest suggestion that my advice might be held against me. I shan't labour the point, but if I conclude the worst I will of course have to quit my contributions, withdraw all previous ones and make any new ones with a lengthy and tiresome generalised disclaimer attached.

Ah but this is overridden by statute of TPOs and is only exempt if the action is necessary. I am inclined to agree with the sentiment in btggaz's post. If there were no TPO you would of course be entirely right, subject in my mind to chasing up the rteference you provided on the matter of mischieft.

I picked it up and dropped it immediately, as I didn't think it was in point. The exemption only applies to necessary abatement or prevention which doesn't seem to apply here. This has been explored elsewhere ont eh Forum, from which I concluded that if no other alternative actions (such as laying drains under the roots instead of cutting them) had been considered then it was not necessary abatement.

Yes I am insured, although insurance is no t alicense to be reckless. And I have not suggested a course of action, I have only expressed what I think are the most likely interpretations and outcomes. More generally, I wouldn't dream of propnouncing on a subject without knowing everything and seeing the tree and being appointed to pronounce. And even more generally, if you are correct about liability for comments which are made for free in good faith on generalities to householders on this forum, then Steve might be well advised to close down this part of the Forum forever, and all other parts where anyone (fellow arbs included) ask for advice. But with all due respect (your knowledge of the law indicates that your opinions are pretty well considered) I don't agree with you on this point and I am not terribly worried about liability. The moderators should consider it though.

I will send you a private message, the miracle was that with so many frequent and permanent targets the damage was slight compared to what could have happened.

I would be interested to follow up teh concept of mischevious abatement. Do you have a particular case or text you got this from or are you paraphrasing the general understanding of the law?

OK, continuing on my speculation. You have assumed that the root damage is so severe that the tree has to go. But look at the evidence for a moment such as we have been told. The tree looks to have a DBH of say around 60cm, ignoring the big burrs. A conventional RPA calculation would suggest a radius of exclusion of 7.2m. The excavations have come to within 3 to 4 m of the centre of the butt. A conventional RPA has therefore been substantially breached. But we have also been told this development site had been an empty field. With a history of agriculture including ploughing and tilling, there would be no significant roots at a shallow level beyond the field margin. Would a tree in this situation not have a disproportionately high fraction of its roots on the other side or along the field margin? And is there not the possibility that the RPA could reasonably be adjusted. That is to say, maybe the damage is not terminal. I see only 3 roots severed. If that's all, I wouldn't condemn the whole tree. At least not until I had investigated that proliferation of fungi on the stem, which I am guessing are as Mr Bullman first speculated Polyporosus squamosus. I had a chestnut near here snap at the stem at the exact spot of a lesser P.s infection two weeks ago, and it's a miracle no-one was killed or hurt. I'm just saying I suppose that we shouldn't necessarily assume that a civil action could connect the root damage (ignoring old agricultural damage) to the imminent demise of the tree. Any of us could possibly successfully defend the developer by creating significant doubt as to cause and effect.

Replying on btggaz post. Exact details of service runs and finished levels are not necessarily needed for a planning application to be approved. But they could be incertain cases and ironically the most likely tome for them to be needed would eb if trees were threatened. On the other hand, the service runs and levels could be part of the information submitted withteh application even if it wasn't asked for. As such they could be covered by the approval. In the ordinary course of events I don't think it can be expected of a developer to check the status of trees outwith an application site. Conversely the planner registering the application should have and could have asked for the application boundary to be extended to cover TPOd trees or asked for a survey to take account of the off-site TPO. In a straight argument about who missed the TPO, the developer will no doubt say he did a title search and found no TPO recorded on his land. Not a full and perfect defence but at that point I can see a judge turning round to the Council and asking why they didn't flag it up. In the end, I can't see the statutory position resulting in clear-cut liability for anyone. And as another poster has alluded to (? Andy Webster) there is not much public interest to be served by a withc-hunt to establish malice or negligence where it was very possibly just oversight and shared blame for carelessness. All in all, it might become as you say a largely civil matter. More on this in a moment, I need to go back and look at the pictures.

How, specifically, do you think the legislation should address it? BY the way, I agree with you for all the reasons I have gone through in my previous posts, I am just cutious to know what you think the exact issue is. I have a fair idea myself.

I wasn't condoning the omission of off-site trees. The BS is pretty clear that these should be recorded ina survey. But we are all assuming the surveyor was instructed, on behalf of the developer, and following stipulations from Planning, to do a BS5837 survey. All I was suggesting was that if Plannign didn't stipulate it and therefore the developer didn't instruct it, the surveyor wouldn't and SHOULDN'T record off-site trees. I did a survey for a developer a few weeks ago. I gave a fixed price for the estimated number of trees on the site but when my instruction was confirmed it was to do a 5837 survey. So instead of recording 120 trees I recorded 156 trees because the specification implied off-site trees too. Thankfully the client was understanding enough to increase my fee pro rata. Otherwise I would have done half a day's survey work for nothing.

I hope I don't come a cross as tearing things to shreds. My mind takes a rigorous logical approach on most things (to the great exasparation of friends and family sometimes) and if I see a flaw in an argument that I think I can correct I do. The only satisfaction is in sharing greater understanding. And I don't think particularly fast, I just go straight to the point and ignore everything else. I am pretty organised with my reference material too. Sometimes I miss things, and anybody that wants to and can should point these out to me. All part of the sharing.

Does no-one have anything to add about this? I was hoping someone could point out a mistake in my reasoning or interpretation of the legislation.

Oh dear, this has suddenly got complicated. The Regulations say that nothing shall prevent the cutting down, topping, lopping or uprooting of a tree so far as such work is necessary to implement a detailed planning permission. It does not exempt the wilful damage or wilful destruction of a tree. Presumably because severing roots, which might otherwise be 'damage' (and which may be different from uprooting) could be controlled by planning conditions. There is no way in my mind that the legislation has anticipated this scenario where damage is done to a TPO'd tree that is mainly situated outwith the planning application boundary. Was the developer meant to check for TPOs outside his land. No. On balance if it went to court would the onus have been on the Council that makes TPOs to notice and control the damage by conditions. I think so. But does the exemption due to planning permission apply? I'm not so sure it does. It might rest on whether severing of roots counts as uprooting a (whole) tree. Patently it's different. And so the exemption cannot be relied upon. Which shifts the question onto the word 'wilful'. Did the two eejits with the bulldozer wilfully damage the tree? Was the intention to damage the tree or was the intention to remove the roots. I know they have the same consequence for the tree, but the legislation is there to examine the motive. There has to be damage and will.

Sadly I agree with this. Ignorance of protection is never a defence but when planning permission authorises tree (or root) work there is no crime in the first place. I am still unclear though whether the consent gives full immunity. I will go off and check just now...