daltontrees

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.

Footnote - having just read more of Perrin v Northampton it is even clearer. One of the reasons I suspect it was appealed and the appeal succeeded was tht thte original judgement ignored the judge's own stated view that the neighbour could abate the nuisance with impunity from TPO prosecution.

It took two reads, but I think I get it. The judgement is immensely helpful. Contrary to what you say (and assuming A is your client and B is the neighbour) it is very clear now to me (thanks to the court filling in the very blanks that we have been debating) that your client's neighbour can remove the roots as long as he doesn't rely on the law of nuisance or the TPO law to get access to your client's land to do so. That is the first point. Your neighbour can cut the roots from his side, with impunity, as long as they are causing damage and therfore constitute a nuisance. The next step to consider is whether your client can rely onm the TPO laws to cut the roots from his own side with impunity to abate the nuisance to the neighbour. Again the judgement seems very clear, he cannot. All of this is what we have suspected all along. Accepting the neighbour's clear rights and the client's clear restrictions, the hypothetical questions must be answered (i) is it reasonable for the Council to refuse an application to remove a tree that will be dangerous (and you would have to be satisfied in that regard) after the neighbour has removed the roots and support from his side and (ii) was it reasonable for the Council to refuse the application for the reasons it did? I have before given my tupppenceworth that the refusal might be technically correct but churlish. I still think that might be the case and partly for me answers the first question (which will be the essence of the appeal debate if your client appeals). I think the answer to the second question has to be no, the Council has no locus at law to interfere with the neighbour's absolute right to abate the nuisance, and the TPO laws do not give the Council any additional locus to interfere or prosecute or to say how he should accommodate the nuisance. So what can be done. The neighbour can remove the roots. He cannot be stopped or prosecuted. The tree will (if you are satisfied in this respect) be dangerous. It can then either be removed by your client with statutory immunity from prosecution or be the subject of a second fresh TPO application. If the second one is refused, the Council is responsible for compensation for damage caused by the falling tree. The dilemma is brought into clear focus before a second application is made. If you are satisfieds that the tree, after root removal, is dangerous you should tell your client and recommend he exercises his right to remove it without further consent. Conversely if you are not satisfied, then you should apply and give the Council the option to refuse and to take on compensation responsibility (but only to the extent that damage was foreseeable and couldn't be mitigated by your client in other ways) or to approve removal if it concludes that the risk of damage and harm outweighs the public amenity value. Is it not this very matter that has been anticipated and been the reason for the first application? Your client might be frustrated ant a refusal that ignores the inevitable issue, particularly when the Council has misguidedly refused on spurious grounds. You have probably got no obligation to advise the neighbour, but your client would be at liberty to have you explain to the neighbour his position (without prejudice, of course) as regards abatement and immunity from prosecution. If the neighbour then cuts the roots, the tree must go if it's collapse is inevitable and imminent, and should probably be the subject of a second application if it is not imminent. My advice to the client about whether to appeal now would probably depend on the neighbour's immediate intentions as regards root removal. If he plans to cut, the course ahead is reasonably clear. If he does not and plans to tolerate the roots, the problem disappears. If he wants to force your client to abate the nuisance by other means he, well, can't. If he invites you or your client to cut the roots at his yoyur client's expense but on the neighbour's land, the way ahead is just as clear as if the neighbour had wielded the saw, it matters not whose hand cuts, only who instructed it (i.e. the neighbour). I hope my opinion and analysis helps. I long to hear the outcome. If your head was nipping before, I only hope I haven't made it worse.

That book on ebay is in my opinion excellent, it took me months to read though as it is hefty and detailed. And remains a good reference text.

Grass below the canopy is rarely a good start. I too would be interested in seeing the context.

Oh, please let's not! The correct term is Decay, because that's what Sgigo said it is. WHta is now being debated is whether Shigo was right or chose the right word, that's a different matter. Fortunately, those that have read his works or learnt of CODIT second-hand get the important point that trees deal with wounding damage by hampering the spread of resultant decay/dessication/drying/wetting/dysfunction (walls 1 to 3) until they can effect a permanent repair by occluding the wound (wall 4). Hopefully that's the way this Beech will go, but the race is on. What I have always been a little unclear on , despite woute a few Shigoesque dissections I have made across partial occlusions of infected wounds is the extent to which the action of a fungus like P. squamosus will interfere with the occlusion. That is to say, in a straight race the occlusion should be complete before the fungus has done critical biomechanical damage, but if the fungus is also letting the tree's tyres down to get a head-start, it must become a different race.

Oh well, you tried. Good luck on appeal, I believe the legislation, case law and official guidance are all on your side if (sorry, when) you put the case plainly. The weakest point might be whether the tree would be definitely unsafe after root removal, only you have examined the tree. I thought the Council hasn't even argued against that though, just that the driveway could be repaired.

I've missed a couple of days of the debate. I guess it wouldn't have mattered much. But just to clarify what I said before, I am not undercutting people every day, and never knowingly anyway, and maybe my business sense is not good enough to always do good work (which I always do) AND make a good profit (which I sometimes do) but sometimes if I see a couple of blank days in the diary coming up I will happily price a couple of jobs a little cheaper so that I am busy and at least bringing something in. The only difference between that and normal rates is I make enough to earn a groundy wage for the day and nothing going back in to the company for a rainy day. I don't have high fixed overheads so it doesnt matter too much. It is what I would be paying a groundy anyway, and he's not complaining about the rates. It woild be nice to be in a market where some of you guys are where you can afford to decide which customers you work for or which kind you look for. Meantime among all the hypothetical debate about keeping up industry rates to a fair level (whatever that is) and the state of the economy, here Objective One has been met (just about) which is we have a roof over our heads and shoes on our feet. I am providing for my family. The rest is, relatively speaking, hot air.

The prize goes to Mr Barton, it is indeed Quercus agrifolia. And that Zelkova must be Z. carpinifolia?

If you're going on your CS38, I'd say best advice is not to hit the ground, running or otherwise.

More specifically, COCIT up!