daltontrees

Interesting questions... I would suggest the following. 1. Only substantial tree works on trees that are part of the consent either explicitly or implicitly could be considered commencement of development i.e. if there are other non protected (neither by TPO nor planning conditions) trees on the application site (as delineated in the application) which are unaffected by the development, the removal of these would not be implementation of the consent. 2. This is what I would suggest is implicit consent to remove the TPOd trees, but there is a remote danger that the LPA could claim retrospectively that it thought the trees were to be retained within the car park. If you are satisfied that the application and the associated drawings openly indicvate that the trees will not be present on completion of the development as consented, and if there are no conditions relating to the trees then their removal should be immune from prosecution. 3. Ahhhh! Scrap the aforegoing, I wouold suggest a precautionary approach that starts with checking with the LPA that it is aware of the trees, their TPOd status and the implicit removal of them to implement the consent. 4. The LPA cannot withdraw the issued consent unless by making a Revocation Order (which they never do and which could give rise to expensive compensation liabilities for them). I would think the LPA could waive reserved matters, effectively simplifying and altering the consent b ut it couldn't add conditions. If you have an advantageous consent that allows the argument that removal of TPOd trees is implicit, I would hold the LPA to it. 5. If it is a garden, no felling license is required. Also if the development is consented and the felling of trees is immediately required to implement a planning consent. On both counts (opnly one is needed) you seem to eb in the clear.

We don't know if the original creator of the thread is still looking in, so it might be academic anyway. But for what it's worth the tree is a leaner towards a bungalow and when it fails it will break the house in two and could hurt anyone inside. The concrete fell out because it doesn't fit the hole any more and/or because the stem was flexing more than usual. Scalping the tree is bound to give the decay the upper hand in the ongoing battle. If the house gets dented the building insurer's going to ask questions about why nothing was done (or no professional advice was commissioned) about such a glaring defect. I liked the replanting nearby and scalping meantime idea. Anything else is russian roulette.

Give it a sniff, if it is a bit vile it's Polar, if it's sweet it's Ash.

Alliaria, I should have clarified your Sapindus guess is not right and also doesn't have an oriental location reference in either the common or the scientific name.

thieving gets at my bank have just written to say they are putting the service charge on our business account up by 40%. What other form of business in this economic climate could do this? I wish I could.

OK the first one is actually according to the label in the Botanics the Japanese Cork Tree which I recall was given P. lavallei. From one dried leaflet probably indistinguishable from P. japonicum or amurense. Right, that's one oriental place reference used up.

Meant to say, neither guess is right but you are close on one of them.

The rule is that they can't both have the same oriental reference in the name.

Who ever said it was the scientific names that contained oriental references? And if you need a hint, the oriental references are to places. May or may not include China, but they're both different references. Sorry about teh Pot Purri ident test, it is a long cold dark winter and this is merely for amusement in the absence of any more reliable photos. Unless you want to get into winter twig idents, I am out on survey 3 days a week and can bring back loads? I just won't be able to guarantee what they are.

I too thought it was in the context of a planning application, not a CA notice. Therein lies a dilemma for the LPA, it can put conditions in a Planning Consent to protect trees during and after development but can it actually genuinely and validly refuse an application for development because of the tree loss, for an otherwise acceptable proposal? Throwing the baby out with the bathwater, as it were? I suppose it can. But the example you quote would have had me hopping mad, as you rightly say the trees could not be removed until a CA notice was served and that would be the right time for a TPO to be made. Here's a real live situation I was loosely involved in a while ago. A disused church was bought by a developer for conversion to flats, requiring vehicular access and a lot of parking which had never been contemplated 150 years ago when a simple coach and horse driveway was provided to the church door behind a line of what became mature trees. The development was not physically possible and could not get the required amount of parking and satisfactory sight lines etc with the trees in place. There was no CA Appraisal to refer to. The LA wanted the building to be saved by allowing a beneficial use but would not allow the developer to remove the trees, forcing him instead into a ransom situation with a landowner at the rear for essential access rights. Pre-application plans were submitted which the Council was minded to refuse, and an application for the rear access option and the principle of conversion of the building to residential was submitted and approved, without any specific conditions being imposed in relation to the retention of the trees. The developer then, feigning ignorance or crossed wires, chopped the trees down. In the subsequent debacle the developer claimed that it shouldn't be fined because the Council couldn't have refused the application for an acceptable use merely because the loss of trees was unacceptable, and that the Council should have made a TPO which the developer could have overturned. Right or wrong? Who knows, the trees were by then gone.

I have said all that needs to be said.

I know you guys and gals like a challenge. Attached are 4 photos from the topside and underside of leaflets of 2 species of trees collected from a reliable garden a few months ago. A bit dried out now but the shapes are as they were. See if you can get both species, they are from the same Order but not the same family, but both are native to China. The shorter one is 3 inches, the longer 6 inches. Both have indications of their oriental origin in their names.

Thank you for indulging me, this has been helpful and better than trying to resolve things in the heat of battle. So.... Q1. I wasn't aware of s72(1), I thought the authors of the Guidance had just plucked the wording from the air. Pount made, and taken. Trees are not protected by CAs, there is merely a precautionary approach against their removal; their protection still has to be proven and formalised by a TPO when their removal is proposed. I can reveal that my trouble with this has been all along the older CAs where ther is no CA appraisal. Q2. Noted, but it will always be a grey area as to how many residents make a public. Or whether all members of this 'sub-public' are equal regardless of wealth and party affiliations. It helps to hear someone else resigned to it being vague, like the rest of the planning system. Good luck to Lord Taylor of Goss Moor whoever he is, I agree with the sentiments but when the Government can't even keep the legislation.gov.uk up to date, he might be advised to throw another few quangos on the fire to keep himself warm while awaiting the streamlining of Guidance. It isn't clear whether he plans a crown clean or a crown reduction, but current political sentiment suggests the latter. Good luck to him, it won't be easy!

Zero pruning on the third tree. Linn Park Glasgow, 20m from the stables. Will try and get back there in a couple of months.

You might pick up some extra ideas from the RHS site Conifers: brown patches / Royal Horticultural Society

The Scottish difference is that through legislation in 2006 it became possible for Planning Authorities to make TPOS if trees are of 'historic or cultural' significance. This aligns the justification almost exactly with the 'architectural or historic' grounds for a CA. Down south you have no such sophistication of your principal Act.

Q1. The difference arises from the justification for a CA and the justification for a TPO coming from 2 separate Acts with 2 separate wordings. One is architectural and historic interest, the other is amenity interest. There's not a word in common between the definitions. The guidance takes them further apart, the definition of amenity which (probably wisely) was omitted from the Act is shaped by measuring amenity through whether it would be missed if it was gone. The LA cannot lawfully use conservation area justifications for a TPO, even if the existence of trees was part of its thinking (rightly or wrongly) when the CA was made. Q2. The guidance says "The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath". The residents may well be members of the public, but not according to the guidance. A few of them see the CA from the inside for long periods, many of the public see the CA from the outside for short periods.

The most recent Government Guidelines say this about the grounds for making a TPO - "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." In the section about Conservation Areas, the Guidelines say that if a TPO is being considered as a response to a Conservation Area notice - "Special attention must be paid to the desirability of preserving the character or appearance of the conservation area." The first question is, if all the trees in a CA are provisionally protected by the CA status, what co-incidence (if any) is there between them contributing to the character or appearance of the conservation area and their preservation for the local environment and its enjoyment by the public. To put it in a practical way, are trees that get in the way of the public's view of architecture or history not a detraction from a Conservation Area? For all that they are provisionally protected, once a TPO is proposed the test switches from the CA definition of special historic or architectural interest to the TPO definition of amenity interest. The second question is, if a tree in a CA cannot be seen from any public space but can be seen and enjoyed by the other residents in the context that the original architects of the area had intended, is the SoS's guidance the correct interpretation of the Acts or should TPOs also be exerciseable to protect trees against loss of amenity for the residents of the area? I have a particular case reason for asking these questions but I would be more interested in peoples' views on the more general principles. Sorry if it's a bit heavy but I have I hope distilled it down to the bare minimum. Final point, the law in Scotland is different in a way that might make the first question unnecessary. If anyone wants to know why, please ask.

That's what I was thinking.

I see the cited case (the Railtrack one, not the Margate Pier one) related to public nuisance. The Council must have been claiming as public health authority or some other statutory position. I don't think it has applicability to your squirrels. There is the similarity that no-one in either case was responsible for the presence of vermin in the area. Proofing the bridge might make the pigeons go elsewhere. but they could still sh*t on passers-by. So in your case, which will definitely prevent the neighbour having squirrels in the attic (a) blocking the entry points or (b) pruning the tree? We might never know, but if the neighbour is ever ill-advised and rich enough to take this to court I would love to hear the outcome, if not be there to hear his argument fall apart as he spouted it forth.

Sorry, I meant to say it wasn't clear from your last post what happened in the Margate Pier case. I shall now go and read it, I didn't see the link to it and read only the bit you quoted.

I expect Mynors will have little if anything specific to say about this situation. I think that it is a question of whether there is a nuisance and not what action should be taken to remove the nuisance. Incidentally, I have removed branches from a yew in a Conservation Area with the Council's consent, specifically to take away a jumping-off point for squirrels that were taking up residence in an attic. As you probably already know 'Nuisance' in the legal sense has a different (or rather, a narrower) meaning than it does in common usage. In common usage the nuisance here is the squirrels, not the tree. Squirrels are well able to scale fairly smooth brickwork and to live (as a friend of mine found) in the attic of 4 storey buildings with no contiguous trees, if food sources, lack of suitable natural shelters and population pressures make it so. All the tree is doing here (based on what limited info you have given) is making it possible for the squirrels to get to the building from that tree. If the tree were not there they may be able to get to the building across the surface or from another tree. It is I suppose safest to use this tree, but there is probably no way of proving that the squirrels would not be there if the tree was not. Asking your client to damage an otherwise harmless tree is I personally think too high a price to pay (financially and in tree health) for such an experiment. The exclusion of the squirrels from the building by blocking entry points will however be entirely conclusive and foreseeably successful. In conclusion I think the controllable deficiency is that the building is not secure and that the onus and expense should be with its owner. I don't think that there is an actionable nuisance in the legal sense. Just my opinion but surely anyone reasonable looking at the sutuation from the outside (a court for example) would favour your client's position?

Excuse for once the lack of eloquence, the weather here is ****! No snow, though, just rain and wind and cold.

I think I know what that fellament.

Four, you forgot about the guy that does the risk assessment.