daltontrees

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least. The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables. English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed". In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries. Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

I agree except about killing the tree, there is no such restriction, this is settled law since the dawn of time, Killing it does not constitute criminal damage if it is to abate a nuisance and is done without malice or spite.

1. I don't recognise the species. 2. There's no legal limit on proximity of planting. 3. Tree encroachment can't be classed as criminal damage. However, it can (nad your case probably is by now) nuisance and negligence, two closely related but different legal principles. 4. Whether your house coudl be damage d depends on a lot of complex factors such as species, foudnation depth, climate, soil type, foundation depth and so on. Put the Council on notice (in writing, nice and clear, no waffle) that you consider the encroachment to be nuisance attracting liability and invite them to deal with it promptly, reserving the right to deal with it yorself by cutting back any roots or branches across the property line. You shouldn't have to put a root barrier in, but it could help with future root encroachment.

Usually property is covered under public liability. Arborisk that I have, for example, is very clear about this in its Public and Products Liability policy.

BGS I think withdrew its online map site but replaced it with a slightly (Beta) better one. Here's the one I use https://geologyviewer.bgs.ac.uk/?_ga=2.264636559.1060876221.1657217743-1316232915.1657217743

Annex A of BS5837 also provides general guidance

The attached gives some guidance on shrub species for sewers, generally says don't plant closer that mature crown spread. Sewers for Adoption sep2013.pdf

It's going to get worse.

In England the guidance says that "other factors, such as the importance as a wildlife habitat, may be taken into account which alone would not be sufficient to warrant a TPO". At this point it starts to go all fuzzy. Habitat can be a factor if it is there to be enjoyed. Conservation of habitat in its own right, in the interests of science or for the benefit of special audiences for example, is not I think a logical part of amenity. If you want to get into this aspect up to your ears, see what Dr. Mynors the author of the only book on tree law had to say in the current review of welsh planning law. He was suggesting that for scientific interest to be preservable by TPO the definition of amenity should be changed (yes, I know that's as ridiculous as it sounds) to include scientific interest. Personally I suggested to him that instead of trying to distort the engish laguage as a contrived means of achieving sonething he should add a separate habitat criterion for TPOs. And there it really gets farcical. Trees create the environment for other habitats but they are not necessarily the habitat itself. Ancient oaks with fragile irreplaceable deadwood habitats might well be a case for preservation on scientific interest grounds but it hardly comes under the heading of pleasant amenity. But is it right to preserve trees because they have nesting birds? Or bluebells beneath them in spring? The bluebells are pleasant, but they're not trees. I see Woodland TPOs being promoted on the basis of habitat, in places where the public cannot see or visit them. I personally think this is ultra vires. Meantime the government is happily blitzing ancient woodland for railways. The system is increasingly incoherent.

It doesn't even try to define amenity. In FFF Estates v Hackney LBC the Court of Appeal suggested it meant "pleasant circumstances or features, advantages". In Cartwright v Post Office a definition was decided upon as "[its] visual appearance and the pleasure of its enjoyment".

I dpn't know what it's liek in England, but up here Councils are using conditions to protect trees under the justification of habitat protection. Currently I have one where the tree removal is not being allowed because the tree is contributing to climate stabilisation. Recently I had a TPO imposed to protect habitat, which is not a lawful use of TPO. The overall sense is that it's all a bit out of control. A bit more than usual, that is.

In such situations it is appropriate I think to point out that the written government guidance is that planning conditions should not be used for the long term protection of trees.

Wow, you're really getting into this. Yes there is a lot of inconsistency coming from Councils, but one has to take it as one finds it. A houseowner could apply to discharge a condition as it relates to just his house. The Council could compeltently discharge it. Whether the house owner can implement the discharge is a different matter, it may be a matter of contract with the developer. Even if a person bought from a developer and wasn't specificalyy told about planning conditions, missives would invariably throw it back to the buyer to satisfy themselves, and in turn the buyer's solicitor would to a property enquiry with the Council which would throw up the permission, but probably not the specific conditions. The buyer generally would be expected to check. I can't ser the developer being in breach for non disclosure. You raise a strange paradox about self abatement. I don't think that self abatement is a lawful option until the whole development is completed but I have in the past advised house buyers that enforcement and prosecution would be highly unlikely as long as their bit of the developent is complete and the threat of construction damage to their trees is past. This seems correct in some situations, but not all, amnd I wouldn't advise it generally. And as I speculated in a recent posts about enforcement, there seems to be no mechanism for meaningful penalties for one-off tree breaches.

Planning conditions run with land, not with ownership. So in the described situation the conditions prevent tree removal until the conditions of the whole consent are discharged by completion of the whole development. Unless varied on application.

Yes the nature of CAs is that they don't actually protect trees they just give the LPA the opportunity to consider the importance of individual trees later if their removal is proposed. The CA (in Scotland anyway) has to be accompanied by a CA appraisal (this will be the stand-alone document you mention) which states what is important about the CA. This should and generally does include a section on which classes of trees are important. If I have a contentious CA notification to do I usually quote the CAA. I generally consider it relevant to point out situations where the trees have no historic or architectural context and/or are actually detracting from the framing of historically or architecturally important views. LPAs are much more interested in the architecture than the trees, but trees can occasionally be worth protecting in tree lined avenues or parkland settings. Technically the interesting matter is that to prevent removal the Council has to make a TPO and this (in England and Wales anyway) can only be justified "in the interests of amenity". This may or may not be the same as the special cheracter that the CA is designated to protect, but if a subsequent TPO application is made it should be considered without regard to the CA criteria. Concluding, the word 'amenity' is all-important in both TPO and CA situations because it is the one and only statutory test. (In England anyway; the situation is considerably more complicated in Scotland; I have lost track of Wales; Northern Ireland planning law is a mystery that I leave alone until I have to).

Is the neighbour's tree in a Tree Preservation Order or Conservation Area?

This is one of those 'light blue touch paper and retire' posts, isn't it, where a punter joins arbtalk, asks a question then buggers off never to be heard from again, leaving behind a squabble of speculation.

Based on scottish legislation, the key points here seem to be that CA protection "applies to any tree in a conservation area" and that the offence for transgression is "any act which might by virtue of section 160(3)(a) be prohibited by a tree preservation order". This extreme shorthand means that the question of whether the parts of a tree outwith the CA are protected is more or less the same as whether the parts of a tree outwith a TPO are protected. I think this is backed up by realising that the only thing that can be done to prevent the works is to make a TPO. The tree, once in a CA or TPO, is protected, and logically all of it. At this point the English/Welsh law and Scottish diverge procedurally so I can't say more than that for this situation. Except that the same principles apply to CA and TPO trees alike. My instinct is that the underlying purpose of TPOs and CAs is similar, as in protecting amenity of an area, and that the strict CA/TPO/legal boundary is a secondary consideration if pruning would damage that amenity. But of course that amenity is not sacrosanct as it can be daamged by the lawful 'prevention or abatement of a nuisance' by removing overhangign branches. Subject to that test. That test covers the grey area.

They can't extent it, it's the law!

That is an old old injury. The smooth bark around it is the tree putting on additional specialised wood that will be making that part of the tree very strong. No treatment is possible. It is possible but unlikely that the wound will eventually heal over. It's alos possible but unlikely that it will break. If there's nothing much beneath it, there's not much to worry about for a few years, but it might be possible to reduce the risk by moving whatever's beneath it, reducing slightly the weight and wind sail of the affected part or bracing the substem to the good adjacent one. A loop pf rope would do.

Not so. LA liability is for damage that is foreseeable. If risk is foreseeable and is serious and urgent then the exemption should be used. If it's less urgent an application should be made. Only on refusal is there any argument of LA liability, and even then an appeal should be considered. But if failure arises from instability due to unaothrised excavatiions, the LA could comple the developer to reisntate the ground to make the tree stable. In my experience tthe excavatiin of roots close to a tree will only create risk either immediately duel to lack of lateral support or slowly due to infection and decay. In your scenario I think it could be very hard to hold a LA responsible for short term failure which could be prevented. The LA might be in no rush to allow removal if the demise of the tree could take years and years to develop. Much lesser works than removal shoudl be considered first.

That's pretty much it.

The penalties are weak. The Council must first take enforcement action, and a breach of an enforcement action can result in theoretically unlimited fines. I am not aware of any statutory basis for retrospective fines. Therein lies a great weakness (to my mind) of the planning system in that it does not actually impose penalties for damage to trees unless they are TPO'd or in a CA. Trying to understand the various remedies for breaches of planning can make your head spin, but at the heart of it alll there are only two things the Council can achieve, namely stopping some activity continuing or undoing something injurious that thas been done. The penalties mainly involve prosecution and fines for not adhering to these. But when trees have been permanently damaged, there is no ongoing actiivity that can be stopped (except more damage) and the damage canot be undone i.e. the loss of amenity to the area cannot be replaced. So a TPO is probably the best thing for the Council to do. Further damage will be easy to prosecute and punish. But up to that point, I am unaware of any prosecution method for past damage. I'd be delighted to hear from anyone that knows otherwise. It just occurred to me that destruction of a tree on a development site in breach of conditions could constitute a felling permission offence. Messy, but theoretically possible and something that anecdotally I am aware is currently being talked about for a site in Scotland.

Revocation is not an appropriate response to breaches of conditions, it nearly never happens and it cannot be used as a punishment, although that would be a fabulous deterrent.

If it's just a small hole liek it's bene drilled, it'll be an insect that did it. Google 'hazelnut drill'.