daltontrees

And if the report says there is more than 1/10,000 chance of it coming down within the next year and hitting something or someone you might be within your rights to see to it right away, informing rather than asking the tree officer (5 days notice required, I think). But if you go down that route (the dead, dying or dangerous route) the onus is on the client to be able to prove retrospectively tha tthe tree had been an unacceptable risk.

Sorry, I amn't clear on whether that is a yes or no. And which little book, if you are prepared to disclose?

Me too, but I think that reputation is everything, more important than a quick buck on one job. I think you can usually tell when you're being set up by a client to take the rap if writs are flying. Anyway, it has been useful to ponder the finer details, will stand me and hopefully any person reading this in good stead sometime. I just need to remmember the key words 'immediately required' AND 'authorised by planning permission'.

True, we've all done it or been leant on to do it. See my reply to btggaz, it is not unlawful to clear a site before making planning application. It is for the LPA to foresee threats to trees that have valuable amenity and then protect them by TPO before they can be removed. This is rarely the case with development sites since the TPO will be challengable if the trees are not highly visible from a public area before development starts. So hypothetically speaking if that 300 tree site required a Felling License because of the volume of timber, none was applied for, on Monday a local do-gooder got the Forestry Commission down there, there was a breach of Forestry Act, someone's getting fined for it... is it you or the developer? Who would have been expected to be aware of the need for Felling License? If it's the Arb he should have advised client. If it's the client the Arb is in the clear although some of the s**t will stick to his reputation anyway. Sounds like commercial gambling to me. I'd always make sure client knows that there is a possible breach of Forestry Act and then if he wants me to go ahead anyway I will be there at dawn on Saturday morning, with hand saws if so required and so instructed and so priced.

I would think that if the conditions do not relate to or affect trees then the consent is valid for immediate implementation. However, it is common for consent conditions to say things like 'no work will commence until details of brick colour is submitted and approved by the LPA'. If there is such a condition that says 'no work will commence until a scheme of replanting has been submitted and approved by the LPA' then the situation is clear and no trees can be removed. It is usually clear from reading the consent and conditions which ones hold up development and which ones hold up completion and which ones prevent specific tree removal. In my experience it's not even that clear though. As is well known, except in TPO or CA sites the developer can clear the site of trees before making a planning application. That is perfectly lawful (although a felling license may be required). If you have applied for consent, there is no more legal reason for not clearing the site while you are waiting for the planning consent to come through. However, the LPA would be deeply irritated, not helping the applicant's case. There may have been trees that the Council was considering having retained by conditions or by TPO, yet they get removed during deliberations. Expect substantial tree planting conditions to follow. Back to the point already suggested by me, if there is any impediment to getting started immediately, such as suspensive planning conditions, the Felling License exemption does not yet apply.

Super pictures. Please please tell how you managed to get the focus and illumination so perfect inside the cavity?

Interesting. Are you saying that the black material of pseudosclerotial plating and the black sheath of 'bootlaces are the same material? And can you recommend any particular text that covers the matter and aids identification of fungal species based on plating colour, shape etc? Worryingly often decay can be found in cavities with no fruiting bodies, no definitive colour or even type of decay but with plates present. If these could help with an ID of the fungi present it would be good to know.

Ha ha, nice try! Seriously though I think the 'immediately' thing is also to make sure that trees aren't removed before it is necessary, in case they are felled early on in the development just to get them out of the way and then the development gets abandoned for whatever reason. The result would be unnecessary loss of trees, which is 90% of what the Forestry Commission is there to avoid. It is a moot point but one could say that even with planning permission in place but with actual development not yet programmed in and no 'critical path' (immediate) need for tree removal it could still be an offence under the the Forestry Act to remove trees. I am probably labouring the point (but it is helping me understand and remember the distinction) that planning permission doesn't exempt you. You are exempt if you have planning permission AND development is imminent. My interpretation of course, but I would be happy to hear other interpretations.

Fair question. The Act says exemption is where felling "is immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning [Acts]". I think the "immediately" must be interepreted as for detailed consent since outline consent would never authorise the immediate start of development.

Sorry, I don't understand. Are you saying that trees can come down without the need for a felling license because the site is in the Development Plan and therefore has deemed planning consent? If that is what you are saying, it doesn't seem to be backed up (in my reading) of the Forestry Act. The exemption for development applies only if there is current consent granted. We have been holding off until this week on a development site clearance because if we had gone ahead 2 weeks ago when client had wanted we would have breached the Felling License volume threshold and the client could have been prosecuted. Whether he would have been is a different matter. He now has plannign consent and can clear without penalty. I felt it my professional duty to advise of consequences of clearing prematurely, client accepted the advice and held off. Any other contractor could have charged ahead and claimed ignorance of the status when the FC turned up. It's just a question of extended professionalism that keeps clients coming back to us again and again, but strictly speaking we are under no obligation to keep him right. On the other hand if one asks in a public forum one can no longer plead or feign ignorance....

It has always looked to me like the NHBC guidelines are set up for engineers rather than arbs. After all, if the engineer can identify the tree species, he can look up everything else on the tree side of the equation. Can the arb do the same? Probably not, because the Plasticity Index of the soil needs to be known and unless you are going to dig trial pits and do cone penetrometer tests and be able to interpret the results, you can't complete the equation. So what can you say? There are nearly no shrinkable clays in Scotland but I am asked about it regularly, it is good to be able to cover the basics but anyone who wants a yes/no answer in the course of a (free) tree quote is dreaming. Firstly there is no such thing as yes/no, only balance of probabilities after all factors have been investigated. Secondly, why would anyone stick their neck out on such a potentially litigous and expensive minefield for nothing? They wouldn't. I think you're quite right to start with 'I'm no expert on the engineering side, and the soil type hasn't been confirmed, but for that species and distance the general industry standard suggests that ....' If I had a Norway Spruce that close to a house on stiff clay soils I'd be more worried about a shallow rootplate and the whole thing blowing over.

Wish I was so sure!

It's a bungee strop, how fancy does it need to be? Standard harness gear loops rip out at 40kg, the ring on a Stihl 200T pulls out at 40kg (less!) and the stitching on a bungee strop should do the same. The last one I'd want to trust would be the strop. The Teufelberger is rated at 2kN, the equivalent of 200kg dead weight. Could be useful in some situations but I just use a cheapo bungee strop or for a heavier saw I use a webbing sling.

Wewll, the Kelly/O'Callaghan article (at p.11) clarifies that the 'water demand' term is a misnomer and that vertical distribution of roots is what matters. Ove rhe years some species have been moved category, suggesting that the debate is not over.

Red Oak and Willow are on the NHBC list of high water demand, Ash is Medium water demand, as is Cherry Laurel. All in all, thirstier than a tree squad at the end of a summer's day shift. Zone of influence is 125% of mature tree height for High water demand. The Oak might already be influencing soil moisture levels at the new building. That is not to say it is a problem, but is good to be aware of it. The main piece of info missing now is whether shrinkable clays are present. If not, end of problem in my opinion. If yes, it would be worth pencilling in an arb inspection in 3 years' time to assess. Hope this helps. I have enjoyed looking into it and learning a few things along the way.

Here's a hint to how NHBC deals with the problems that could arise from new planting. Basically, don't plant trees or shrubs without expert advice. So I guess the foundations have nothing to spare. Relevant section is p.19 http://www.nhbc.co.uk/NHBCpublications/LiteratureLibrary/HomeownerDocuments/filedownload,15900,en.pdf It still doesn't deal with the issue of whether the foundations can cope with new trees on adjacent land that the owner or builder cannot control. Until I find out otherwise I will assume that no additional foundation is put in to cope and that thereafter the common law of nuisance would apply.

I have now! Reasonably good article, a bit pseudoscientific and partisan but makes a number of good points and refers usefully to other's documents elsewhere that have researched the question. I am not worthy to question the experienced-based judgement of the author but I am a few other people would contest the statement that it has been proven that pruning doesn't help and that there is no alternative to tree removal. It doesn't address the occasional situations where removal would cause heave but continued growth would cause subsidence and where regular pruning almost the only option. It doesn't deal with whether crown lifting would help, nor does it even mention root pruning. Root barriers are eventually dismissed on the basis that they might get breached. But I accept the generality that the tree will bounce back after pruning, with bigger leaves. The article refers to NHBC guidance from 2003 and its original creation in the 1970s. As I thought the gudance has been around for so long that it is part of the whole industry.

Ah but unless the builders put a restriction in the title deeds or get the new owner to sign a disclaimer, with the effect that the builder is not responsible for subsidence if trees are planted, the builder could surely find himself exposed to claims from house owner. And if the builder has no control over adjacent land which is close enough for future tree planting to affect foundations, I think it is shortsighted to design and build foundations that are only suitable for a no-tree scenario. I got the link about Kelly evidence, thanks, I will have a look. I recall the name Kelly form the case, he came across as a very credible witness.

Definitely worth establishing when the newer house was built, though? I'll try and find out when the NHBC guidance came into effect. 2008 is the last version I saw but I don't know itf there was an earlier one.

Thanks, most helpful and informative I will endeavour to get a hold of that O'Callaghan piece, it sounds useful and I think was referred to in a recent case. I haven't the strength to go through Berent and Siddiqui and other cases to see which one. So you have alluded to the answer to my question being yes. So in the context of the original post here, shouldn't the neighbour (who as I understand it has built a house recently on adjacent land) have suitable foundations and could the tree owners reasonably foresee this and therefore not have to worry about the risk posed by the tree? HYpothetical question of course.

I am curious to know more about the facts, distance, species etc. I just looked at your original post and I see there was one question that no-one has had a crack at. That is the question of NHBC-standard foundations. I can't answer it but I can ask a supplementary rhetorical-style question that has always nagged at the back of my mind and could be relevant. I would be interested to hear any thoughts on it. The gist of NHBC (this is my own understanding) is that people who buy from volume builders have not commissioned their own architect to design the building and have not had someone representing them inspecting the construction standards during building and therefore have limited and complex comeback if the building starts to fall down. Volume builders created the NHBC as a guarantee scheme against poor design and workmanship. NHBC developed a set of rules for calculating appropriate foundation depths for building on shrinkable clays, presumably so that tey and their members don't receive subsidence claims. The rules seem to have been based on decent research and engineering logic. They seem to have achieved a broad acceptance. So if someone else commissions an architect to design a building for them, that architect must specify the right foundations for the situation (soils, trees, climate etc.). I suspect an architect would be foolish to try and deviate from the NHBC 'rules' (which are only rules for NHBC members but nevertheless have a wider applicability). So to the question. Is someone who has a tree on their property entitled to expect that any right minded builder/designer/client would put up a building on shrinkable clay that was adequate for both (i) existing trees and (ii) trees that could be planted or allowed to grow on adjacent land that is outwith their control? In other words, in assessing the reasonable foreseeability of damage from their tree's roots, is a tree owner right to assume that the foundations of a newish adjacent house will have been designed and built to withstand nearby trees and the dessication they might cause? Would this be a defence a la Berent?

OK I understnd it takes a lot of energy to fruit and that that energy comes from degradation of wood but the gap in my understandingis something fundamental, what actually causes fruiting? It is easy to relate it to things like the fungus reaching air or knowing it's food source is nearly gone, but fungi don't think and I expect have only rudimentary sensory mechanisms to signal that air has been reached. How chemically/electrically/hormonally is it triggered? I have not yet read anywhere an answer to this. It should answer the question at hand as to whether removal of fruiting bodies stimulates re-fruiting. I shall investigate, don't hold your breath though, it's on a long to-do list.

I don't suppose there will ever come a time when the law will stop changing. Appeals do my head in because I learn what was decided before appeal and then have to unlearn it if the appeal is successful. I just read the 2012 appeal, fell asleep (it has been a ong hard day...) and when I woke up 10 minutes ago I can't remember anything of what I read. I still amn't at all sure what the case is about. Nor can I find the mention in a case that I referred to earlier about when liabiltiy begins. That seems to have been part of the subject of Berent 2011. But i did come across this bit in Siddiqui v Hillingdon which kind of says what I sadi earlier about negligence. 'In both [cases] the judgments ... are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it….' A rare instance of a point of law being clearly stated. I see it is quoted in Berent too. Anyway, it all reinforces that there seem to be many pitfalls in trying to generalise about liability arising from tree-related subsidence. There is some idea forming in my head now that since the case law suggests that it is incumbent on a tree owner to reasonably foresee damage that could be caused by it; this is the same as if a tree fell over and damaged a property or hurt someone, had the failure of the tree been foreseeable the owner would be negilgent; on the other hand the damage caused by tree-related subsidence can be extensive but the damage happens progressively and hidden from view underground and can't easily be attributed to any one tree, but it is still a legal nuisance, stopping short of being called negligence. So my point if I have one as such is that foreseeable is foreseeable above and below ground, and liability follows from it. A neighbour bringing their perception of the risk to your attention doesn't change the risk but could be a useful adjunct to take definitive written professional advice. Unless the tree is 100 metres away and is 1m high. Finally finally, I am uncomfortable for all those people who have trees in areas of shrinkable clays who might have to foresee damage. Unlike the parts of the tree above ground where occasional inspection for obvious defects by the householder themself with no specialist tree knowledge has been deemed enough to discharge duty of care (Selwyn Smith v Gompels, for anyone who is having trouble getting to sleep), the average and even the above-average punter couldn't possibly foresee tree related subsidence. If my reading of the way things are heading in Berent are correct then everyone with a tree and a neighbour might have to pay to get an opinion on foreseeability of damage, regardless of whether their neighbour has brought the subject up.

Excuse my ignorance, but are you saying that by removing the FFB you will stimulate the development of more FFBs that will have to consume more wood to develop? Some plants can be made flower again by removing flower deadheads before seed is set, there may be some hormonal signalling that allows the plant to know that it has not yet reporduced this year and that another flower is needed. But can the same be said of fungi?

It would be my pleasure, Mr Sloth. I believe the protocol is for you to 'PM' me your email address.