daltontrees

Not misleading but a matter of semantics, the rule seems to be there to deter trivial applications, just like car insurance. With the latter, though, you never get the £500 back. See 'no claims bonus' in conjunction with 'excess' to see how car insurance really shafts us all.

I haven't seen the application but you could be right in a general sense because compensation only seems to be payable having "regard to the application and the documents and particulars accompanying it". If the application said can we remove the tree because it is wrecking the neighbour's driveway, then it might be difficult to prove that the damage or more specifically the potential for current and ongong damage for the woner's side gad been brought to the Council's attention and that they had therefore had had anopportunity to weigh up the compensation liabilities of refusal with the amenity losses of approval. You have clearly spent a lot of well-intended time on all this, you have my ever-increasing sympathy, the law and guidance is quite hard to understand and I am having to spend a good half an hour a day just to keep up. I am putting it down as CPD! Hindsight is so clear. The thing is, you have arefusal and that's not going to change. If you appeal and get an approval, yahay! the tree and all its incipient problems can go. Anticipating the possibility that you don't then you have the possibility of reapplying. So if the appeal fails and you don't reapply and if the original application failed to alert the Council to damage to your client's property, there is no recourse to compensation. Nor is there exemption from prosecution if your client removes roots on his own property to stop further damage there. In the ideal scenario the neighbour would apply to have the roots removed to the extent that was necessary to remove the nuisance, because it couldn't be dealt with in any other way. In the same ideal world your client /owner would apply to remove roots to the extent that they are damaging his property. Both applications would then be considered on their own merits, divorced from the explicit implications of removal of the tree. The Regulations read to me that separate compensation claims would thereafter be validated by refusals. Don't beat yourself up about what you should and shouldn't have done, I think that without the benefit of this debate and the time I have spent thinking about and researching it, I would probably have gone down a similar route to yours.

I don't think the £500 'excess' works like in car insurance, it actually means that if the loss comes to £499 you can't claim at all. If it comes to £501, the compensation is £501. I don't understand the comment about the claim being nullified. Surely the tree is untouched, the Council is basically saying that the exemption under 'necessary for abatement of nuisance' doesn't apply. No exemption has been used. Even if it had a claim would not be nullified because the claim would only be for the extent of damage caused by the tree that could not have been dealt with under the exemption. Owner an neighbour can apply. I think that since there is no excess there is no reason for a joint application, that would just cause problems later.

Well, 'stress' does have a genuine recognised meaning in the tree sense, being where a tree is pushed almost to its functional limits but will recover when the factor pushing it is removed. The extreme is 'strain' which is irrecoverable stress. On the other hand, in mechanics (which I suppose includes biomechanics) stress is a measure of force per area, say XkN/m2. It has the same dimensions as pressure. Strain is extension divided by original length say Xm/Ym and so is dimensionless. I though you were literally referring to the stress (mechanical) in wood changing with its moisture state, which was dumb of me since it can't - neither the load nor the cross sectional area can change and so the stress can't. However, if the tensile strength of wood can change with moisture content, that would be interesting and could in itself be enough to explain summer branch drop. Finding figures for tensile strength of green wood is pretty much impossible but to put it in perspective it could be of the order of 25 MegaNewtons per square m. Which is enormous. That would be 2,500 tonnes per m2. Which is like saying if you could make a rope of just over 1.12m diameter using a column of uniform Beech wood it would be able to lift the Blackpool Tower. So, general question, if tree components as we are told have a safety factor of 3 or 4 built in, and even this can be exceeded presumably by over-extension, how can these limbs survive occasional gales and then succumb to rainfall or just fall off on a still evening?

Just a couple of thoughts on the compensation issue. Firstly it seems according to the latest version of the Planning Act that "Tree preservation regulations may make provision for the payment of compensation ... where any consent required under tree preservation regulations is refused". Until there has been an application that has been refused there is no compensation payable. Secondly a claim has to be put in within 12 months of the refusal or appeal determination. Thirdly no compensation is payable "for loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused ....". It seems to me that this is there to allow a Council to make a fully informed decision whether to refuse and take on the compensation liability, and to cover the Council if they couldn't have foreseen the damage. Note, foreseeability seems to relate to the Council. Fourthly no compensation is payable "for loss or damage reasonably foreseeable by [the applicant] and attributable to [the applicant's] failure to take reasonable steps to avert the loss or damage or to mitigate its extent". Foreseeably this time relates to the claimant. If a driveway is being disrupted and is ongoing and only going to get worse, it looks to me like there is no way to avert the damage and no way to mitigate its extent. If it is plain to see at the time of an application and has been pointed out in the application, the Council could not claim that further damage was not reasonably foreseeable. Compensation should be payable as long as a claim is made in good time. But I can't see where in the legislation compensation is payable for past damage, only for future. This seems to be backed up in case law. It also seems that claims might struggle unless at least the start of damage is plainly atttributable to the tree. Not so much an issue with a driveway but important for subsidence cases. So there seems to be a narrow window for claiming - you spot damage, prove a tree did it, apply for consent, get refused, claim withn a year for cost of unavoidable future damage and take it from there? Sorry btggaz, you are probably scunnered by all this stuff, no need to reply. But if anyone else has any views on how the compensation rules operate in cases like this please pitch in. I was just following up on that Tree Radar thing, which according to my reading of the Regulations isn't the sort of cost the Council would compensate.

I am gripped! What is moisture stress, and how does it weaken wood? And why in some species more than others?

Interesting point about conifer v broadleaf. And eucalyptus I believe counts as the latter. In the Harris article susceptible trees listed included Pinus and Sequaoiadendron gignateum. But mostly broadleaf. An essential difference between conifer and broadleaf is that the bformer supports cantileverd branches by compression wood on the underside and the latter by tension wood on the upper side. That, and substantially different proprtions of lignin and cellulose. All the pictures suggest rapid (instantaneous) tensile failure on the upper side (obviously). Conifers don't have xylem vessels, they have tracheids which are closely packed and box-sectioned. If some conclusion could be reached about the link between tensile strength of broadleaf tension wood and its relationship to quantities of water in it, particularly if the strength relationship was related to cellulose and/or to the density of xylem vessels, there may be the beginnings of a partial explanation. And if limbs prone to SLD are on a hair-trigger in drought conditions, firstly one limb landing on another would be enough to explain the domino effect of multilpe limb failure and secondly is it just the sudden weight on leaves of heavy rain that triggers failure? I mean, in dry conditions it would be quite a while before rain could infiltrate soil under a dense canopy (that would intercept and store much of it initially) and reach roots and rootlets then be passed into the translocation flow, either swelling xylem or making leaves suddenly heavy. I think the weight of rain explanation is the more likely. But I am just speculating.

As you are not being paid for the advice, I think you would be reckless to stick your neck out on legal interpretations. But we can all learn a little thanks to your posting, the situation that has developed, you keeping us apprised and the excuse to wade through the likes of Perrin.

I would love to know why SL/BD happens. My amateur guess has been that since it is related to hot spells and significantly still air, the tree needs to sweat or it will cook, it needs to transpire but the lack of air movement makes gas exchange at leaf surfaces within dense canopy impossible. But if there is also a correlation with non-mulching then it would suggest that lack of ready water is a factor. If it weren't for the still air factor, low pressure in the trunk and limbs would be a starting point for theories about cause. Conversely, the still-air factor suggests the opposite. Looking at the list of susceptible species in the article, it destroys another amateur theory that it affects tree species of dense canopy most i.e species where evapotranspiration is inhibited by the humid microclimate within the canopy. Some of the species e.g. Olea and even Fraxinus aren't dense like FAgus or Aesculus. I wonder if the phenomenon is one of isolated trees or if it happens in say dense Beech woodland or is it just not noticed there as much. Is the weight of cantilevered horizontal limbs just less of a probem there because competition minimises horizontal growth? Have some species missed out in evolution on the need to have a strategy to deal with the conditions of summer branch drop? Perhaps the phenomenon is a reflection ultimately of man putting certain species where nature never meant them to be i.e. exposed to light on a few sides and with long heavy horizontal growth. I'd love to see an example, if I spot one locally I'll get a photo and submit it.

Nice one, all bets are off with dead trees, you don't know how the hinge is going to behave. Keep it deep and pull it over...

Gosh, I struggle to keep up with both the English and Scottish legislation and guidance on TPOs, so I ask out of ignorance, is it the case that root investigation costs can be claimed back from the Council? HAs the recent refusal triggered that?

Sorry if I picked it up wrong but I thought I had read in the case somewhere that the tree had such high amenity value that it had Article 5 exemption. I thought that meant that the Council could exempt itself from compensation liability and that that had affected the judge's view not in the absolute right-or-wrong of the case but how 'necessary' might be interpreted. I must have got that wrong, and to be honest I am reluctant to re-read it. As for Fagus's comments, fair enough I am always wary of overstepping the mark and giving out advice that I am not qualified to do. However, I would never charge for the advice and would always qualify it by saying that it is only my reading of the situation. It is a cruel facet of society that if you are accused of inadvertently breaching the law, you are judged following minute examination of both sides of the case by not only people qualified in legal matters but experts in it who are exploring new areas of the application of the law before a judge who himself is having to make new law. The parties to this are simply fee-paying bystanders to a process that worlds away from their day to day lives and the understandings of right and wrong that is carried around in the head of the average reasonable person to arm them for the numerous daily situations when they are called upon to jump to the right side of the law. Yet it is they who receive the judgement as if they should have known the law. Ignorantia juris neminem excusat and all that. So is the tree surgeon or even tree consultant wrong to offer his or her interpretation of the application of the law as it stands? It has been put to me in the past by someone whose opinion I respect (and this makes an interesting juxtaposition to the courtroom scenario ) that if someone was being done for having (in innocence of the law, they claim) a protected tree cut down by you, you would yourself possibly get the brunt of the punishment because the client would reasonably have expected a qualified tree surgeon to have advised them to check for TPOs or CAs and to not proceed without consent/notification because they would be breaking the law. So does the tree surgeon advise or not? Of course he does. Should he advise on moot points. Definitely not! Should he take opportunities to learn from situations like this as he goes along. It isn't obligatory, but I certainly do whenever I can. And in the future I will feel more confident to advise to a greater extent than I would before. Get an average family lawyer involved to advise from a standing start on a specialised area of law like this and you had better brace yourself for a hefty bill. Likewise an expert lawyer, only the bill will come slightly sooner. I'm not agreeing or disagreeing with anyone here, I just feel sympathy for the common man who is caught not knowing his rights and wrongs on a rarely encountered specialist subject that has defied experts for decades, and who turns to someone whose daily business is trees for some pragmatic, let's call it, guidance. I also see the point of view of the Council Tree Officer in trying to avoid the avoidable damage or loss of a tree. And I see the perspective of your average helpful, decent tree surgeon. But most of all I see an owner, a bewildered citized, whose tree is damaging his owner's tree and he can't do anything about it nor can his neighbour. The State has expropriated the tree for the public and left one or both of them to find an expensive engineering solution without compensation. Where's the justice in that? I am now off on a slight variation of my previous thoughts on the best thing to do, which previously relied on the root pruning being 'necessary' i.e where no other reasonably priced solution is available and now in light of Perren et al relying on 'necessary' meaning no other solution is available, regardless of cost. I think the latter is a breach of natural justice, but I won't get into that any more than I already have. But would it be appropriate at this stage to simplify the matter by the neighbour reapplying to cut the roots? If Council refuses, otherwise unrecoverable compensation for expensive alternative engineering solution could be payable? If it approves, then... PS Don't quote me on it I am only a citizen and therefore unqualified to advise on the law of our land.

I have just read it again, it is very difficult, I think I have confused in my mind what was quoted by teh original Judge and what Judge Chadwick said in disagreement on appeal. It does appear competent for the Council to refuse on the basis that alternative solutions exist to abate a nuisance. There does appear to be a rider, though, that 'necessary' does not mean is the only solution left when an infite amount of money and ingenuity and disruption will not provide a solution that does not involve touching the tree or its roots'. In Perrin it seems that underepinning, albeit at considerable expense which then might have been recoverable by the neighbour from the owner, was a possible and reasonable alternative to removing the tree. Hence the COuncil's refusal. That seems intuitively correct. But as an alternative to pruning the roots, underpinning seems intuitively disproportionalte if the root pruning would not materially damage the tree or its vitality and amenity. If your client's neighbour's drive cannot be fixed (without root removal) other than by breaching the dampproof course, is the neighbour to consider jacking the house up to avoid the problem? That really would be disproportionate. And if it were the only solution he might seek reimbursement. OK, I knmow this is exaggeration for effect, but I do it deliberately to make apoint. Perrin et al differed as I see it in a couple of ways. It arose from a refusal of consent to fell, not to prune roots. The tree was of special amenity value. An alternative to felling or root removal existed (i.e. underpinning) within the normal gamut of subsidence solutions. And it was assumed the parties were insured (as indeed they were) and that the cost of the solution was for them at worst indirect. If in the current case a simple cost-efective soulution does exist the Council's refusal seems as I continue to see it technically correct but if the cost is ridiculous (and I would think uninsurable might be a factor too) and the tree is of ordinary amenity value compared to Perrin's then I think that the Perrin case has left the door open for the neighbour to take a different and more ordinary interpretation of necessary than 'cannot be avoided by the application of infinite resources'. Just make sure explanation by you to neighbour is 'without prejudice'.

As this is the Homeowners Advice section I think we should all make an effort to provide a balanced view of what industry best practice would be for your tree. So far you have heard everything from 'why touch it?' to 'get rid of it'. This probably reflects that no-one has seen it in the flesh, as it were, and everyone is reaching slightly different conclusions based on what you have said and a few photos. There is no substitute for that, and for knowing local soils, history of this species in local climate and prevailing winds, what the prevailing wind direction is relative to plane of included bark, history of root disturbance etc. Someone has already clarified, you don't have to reduce risk, you just have to keep it to acceptable levels. Personally I like the suggestion already made that you get an independent consultant who has no interest in how much any tree surgery or bracing work will cost, to assess the risks and to recommend what work, if any, is needed to bring the risk down to an acceptable level. The cost of the consultant could save you the cost of unnecessary tree work or the ongoing cost of works that are needed once you embark on a managmenet strategy of periodic pruning. I don't wan to criticise your tree surgeon he sounds like he has tried to give you tailored advice. Coming onto this Forum you might encounter him here. Other people here would be reluctant to criticise his advice. If you are worried about the tree a couple of £00 would get independent advice from someone who can inspect the tree in context. I am sure your tree surgeon would be happy to price whatever specification for works your consultant then recommends. People on the Forum are well-meaning but are only making educated guesses without first-hand inspection.

It's not my case but the conclusion I reached from Perrin etc. was that the Judges went out of their way out of necessity (as they sometimes have to do) to define the law and seemed to conclude tha there were underlying intentions in the ststute that were meant for situations like this. Not really loopholes. I though the original poster did te decent thing by asking the Council and it is the COuncil that is hiding behind a technicality to avoid making a more difficult decision. Time no doubt will tell...

For the benefit of the original poster and any other visitors to the Forum, this statement is not strictly true because there are a few ways in which people can have a right to light, but it would be fair to say that they are the exception and that it looks like the OP has no right to light in this case.

Ask for a reduction in rent at the next lease renewal date, it will at least pay for electricity. Can the TV aerial be moved? I like trees but I would really hate to be under that one with no control over what is done to it. As has been said, if you owned the house you could prune away. But you're just the tenant so you can't. And the tree owner is your landlord, which makes things very much out of your control. I would also be checking the leas to see if I had any repairsd responsibility, and if I did I would be putting it on record to the landlord that I couldn't be responsible for damage to the roof. If I found I was responsible for insurance, I would be inclined to ask insurer whether the tree invalidated or increased the cost of the insurance in any way.

Turn the oiler up, if the saw has adjustable oiler!

A scots pine last week, was leaning at right angle to direction it had to be felled, so we left a hefty hinge and pulled it over. Worked a treat, landed the top of the pole on a tonne bag of brash 8 metres away so as not to break slabs.

It's getting a little off topic and the standard wisdom is that grass to the base of trees is not ideal. I would be more interested to know (pending hopefully some pictures or narrative about this tree) what changed your mind? I'm not ducking the question, I was asked your question during the AA Tech management exam and gave a model answer from the textbooks and passed the exam.

I'd go with Nothofagus antarctica.

Picture 2 Kretzschmaria deusta Picure 3 and 4 Polyporus squamosus

Very funny... I will start advising clients that getting the stumps chewed out by ferocious carnivorous hitherto-extinct reptiles is an option.

You will be amazed at your bargain when it arrives and breaks your threshold as it falls from the letterbox. Not to mention the dense wealth of info in it.