daltontrees

Historic Scotland confirmed to me a couple of years ago that Listing does not protect trees. Even if they are in a CA or TPO, they're dead and therefore are not protected.

Looks like the common lichen Peltigeras horizontalis. Hurrah, another tree saved by the sharing of knowledge.

I'd say ANY form can be turned into an excel spreadsheet. I have turned all my forms into these or into Pocket GIS survey templates, which of course are output as csv fileds (=xls files). Maybe it's the climate up here in Scotland, but paper is the last thing I'd use. Tablets run excel or substitute programmes, and are almost disposably cheap. I just did a 1400 tree survey for a Council using a tablet that cost £60. I think it's generally a good thing to record the rationale for decisions, especially as a public body. But htat's maybe not by using a form but by using a system that aids and records objective decisions measurable agianst accepted standards. The ISA system is words based too loose and slushy for me personally. QTRA uses numbers, which I think for roadside risk assessments is more or less ideal. The QTRA manual has a suite of sample survey record forms in it.

What's the question?

What qualifications and experience do you have? And are you a Council employee?

Gary, will contact you again offline. We're in the realms of discussing strengths and weaknesses of a case in public.

Commendable tongue-biting! I had a similar experience of local government, the closer to the top you get the more unbearable the stench of bullshit gets. The most you can hope for is muted respect for not becoming the patsy of members and Directors. I'd go as far as to say that doing your job right in local government makes you a liability for managment because thy can't use your name to legitimise their duplicitous actions. I now have a good rapport (i think) with ex colleagues in that LA, and when they see that i am representing someone they know that what comes their way will have bene done properly and objectively. Reputation is sacred. I have turned down potential clients who wanted to use my reputation to support questionable proposals. I recnetly had dealings for a client with a TPO in that LA's area. The LA doesn't have a copy of the TPO, cannot say whether it was ever confirmed. I know the folk concerned, and there's no point giving them a hard time about it. The resultant advice to client was pragmatic rather than literal. As is so often the case. We know right from wrong, but that's not in the real world.

I'll join you in the dock. You'd win. Tell the head TO to come ahead if he thinks he's hard enough. Tell him to bring a dictionary and a text book on elementary english. And his mammy too.

I beleive the iTree software is based on CTLA. I have set my spreadsheet to deal with the hideous quadratic equation in the Trunk Formula Method, so it's all done automatically. You can have a play with it.

Good, well it's about time the LAs read the legislation for what is says. In fact, it gives an exception for prevention or abatement. To me as an english speaker it's plain tha the exception is there to allow someone to intervene before nuisance occurs. All arguments then about how bad the nuisance needs to be (actionable/self-abatable etc.) are nonsense. If you are allowed to prevent it, why woudl there be a gap between that and the dmage becoming so bad that you're being taken to court by a neighbour because of it. I am prepared to be quoted on it. The nuisance doesn't have to be actionable. It doesn't even need to exist. It just needs to be imminent and reasonably foreseeable and the remedy just needs to be enough to prevent or remove it.

You don't have to prove foreseeability, just raise the possibility (in other words, foresee it) with whatever evidence you have at the time. You may already have done enough in that regard. The damage doesn't just need to be to the owner's property, it could be to neighbouring property. But there's a horrible creaking door there, the legislation says compensation ignores what an owner shoudl have done to minimise the damage, and if the remedy of abatement is (as I am convinced it is) available then it should be exercised rather than relying on compensation for offsite damage. I hope that makes sense.

Piee of piss to calculate. LA will want CAVAT because it produces ridiculously high values. But remember, LA doesn't own the tree. See recent debate on UKTC on the raw inequity of using CAVAT to value TPO trees. You could try Helliwell, though it's pants too. I can run you through a CTLA 9th edition if yo want, ask me offline. I amn't putting my Excel CTLA and CAVAT calculators online.

Yes, as long as the original application contained sufficient grounds to allow the LA to reasonably foresee the damage.

Ooh, please explain! I only have Mynors 1st edition but in it he was drifting towards the interpretation that I now hold to be the only possible one. What was his latest take on it?

I would say that actionable nuisance should never be the only reason in an application. Parliament has given the exception, and it can and should be used rather than asking for a LA to exercise its discretion or interpret whether a legal nuisance exists. Perhaps what's really in mind is that use of the exception would either only hold back the tide for a while or would necessitate the removal of so many roots that the tree would die or fall over. In that case, it's a question of what it's reasonable to do. It could in certain circumstances be valid to remove the whole tree under exception on the basis that root removal is absolutely unnecessary and tha the tree will be dangerous thereafter, which is in itself a valid exception. It's back to the Perrin/Northampton sceabnario of alternative engineering solutions and whether their costs are unreasonable. How about a budget cost for a pile and beam rebuild and an amenity valuation side by side? That way you could quantify the disproportionate burden on the tree owner.

Gary, as you know, there is an exception in TPOs for the prevention or abatement of a nuisance. The damage appears to be substantial enough to be actionable, although in my opinion the wording of the legislation and the trend of court interpretation is that the nuisance doesn't even need to be actionable to be an appropriate use of the exception. I think it would be appropriate to include in your arsenal the 'so far as may be necessary' possibilities for abatement. That covers the neighbour's side. On the client's side the compensation rules would apply for a while after refusal, but only from the time of the application and only if the (further) damage was foreseeable. There was a thread on here a couple of months ago when a similar physical circustance was looked at, and a piles + ground beam solution looked possible to support a replacement wall. Expensive? No doubt. Possible? Almost certainly. Fair? Well... It all seems a bit unfair, but the tree would have done the damage anyway and the TPO is only a retrospective cosntraint on the solutions available. I think the species susceptibility to DED is a red herring, if anything it creates a scarcity value that might even bolster the LA's grounds for refusal. All a bit negative towards your cleint's position, but it's a perspective anyway.

Nimby, what bit doesn't make sense? There's not a lot of guesswork, except a bit of speculation as to what the whole story might be.

The feed got jammed and he shoved the brash with his foot. It then started again.

Er, no! HSE and a court hammered someone a few years ago after a groundie was pulled into a chipper and had his foot taken off. The stop bar didn't work. The contractor had plans to get it fixed, but didn't. Stickers don't bring limbs back. Get it fixed.

I agree it's not an issue for a purchaser. It should be enough to record the conditin of all trees present at the date of entry. What could be interesting, though (and I've never encountered this) is if the Council prosecuted the previous owner for removal or destruction of a tree and insisted on replanting. If the previous owner no longer had access to the land and hadn't reserved the right for this purpose in the contact of sale, would the replanting obligation be enforceable on the new owner? Since the (English ) Act says " it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. " I expect the answer might be yes. A contract to purchase would normally contain a emchanism for the purchaser to seek redress agains the seller, even (especially) after entry. Not guaranteed, though.

I suppose it is is just part of the inherent unfairness of TPOs in the hands of the wrong Council. You could identify a hazard that' progressively getting worse, with an immovable target like the bungalow and the apprehensive occupants within it every night, but the Council might still prosecute for less than urgent risk reduction, or for harm less than serious. And the plain meaning of 'harm' excludes 'damage', (which is dealt with by way of foreseeable damage and compensation). So a Council might just say 'get some insurance'. The compensation cover only lasts for a short while, meaning that if damage wasn't foreseeable at time of application, you need to keep re-applying to keep the compensation rights from increasing foreseeability of damage alive. Is it not just a case of what an Inspector would consider at appeal to be disproportionate negative effects ion the tree owner relative to positive public amenity? Tempered by brinksmanship around the 'damage' and 'harm' thersholds if the Council's being a bit James Blunt about it? I hvae had clients on the end of some really really dismal decisions, I pretty much advise now that they count application time as part of a delay process on the way to a sensible decision at appeal, with an approval meantime being a bonus. Councils vary, though, as to individual TOs and DCOs. I recently had a case where the tree was not bad enough for the harm exception and not foreseeable enough for the damage one but it was approved based on my argument that reduction would considerably extend the tree's safe useful life. It can be persuasive.

Jon/Gary and anyone else sti;l keeping up. The term 'precedent' is not precise. Certainly Khan/Kane was not a ground-shifting decision, but I saw an element of precedent in it. Before Berent, cases were akin to strict liability, but Berent said no liability without knowledge. Khan/Kane modified this by analysing a marginal case and has created a separate set of actionable circumstances, namely liability without knowledge when the tree owner 'ought to have realised' or words to that effect. It's a logical progression, and one that I am sure the industry will find useful. It's important to relaise the circumstances of Khan/Kane. The hedge was 10m high and less than a metre from the Khan property, and damage ougt to have been foreseen. The oak was farther away and the court said damge need not have been foreseen. As such, Gary, I don't think it's a worrying decision for anyone, and I don't think it's going to be reversed in another case. Instead, it has reduced the number of shades of grey that have yet to be tested in courts. All of the aforegoing applicable to England only. We have a more civilised law up here that has never recognised the harsh law of strict liability, and our cases have always been decided on the evidence. Plus we rarely have tree-related subsidence. Just often enough to keep me on my toes and following your case law.

What Jon said is basically it. It is always wise to make a TPO application really thorough because it makes an appeal easier and more likely to succeed, then the Council knows it and is more likely to give you a reasonable decision. And remember, the legislation requires the applicant to give reasons for the tree works, which you sort of did but not quite. Also worth remembering that tree risk is a weak argument for TPO consent - if it's a real risk rather than a potential risk, you can deal with it under exception and shouldn't be applying. In the case you have, I'd re-frame the application, re-apply, get refusal or wait for deeemd refusal (8 weeks) and appeal. It might take a long time but it may be quicker in the end. Appeals are free, so it shouldn't cost the customer much extra to fill in an appeal form. All you really need for appeal is the form, the application and the refusal notice.

My first guess was Cotoneaster frigidus but the leaves look too pale and not deeply veined enough. Magnolia was my second guess, and I was hoping someone could clarify. The two trees are large, about 10m high and spread radii of 6m.

Agreed, contact your insurers. Even if it's not their concern you are better checking and keeping them in the loop. I have just -re-read Khan v Kane (a very appropriate and rigorous analysis of the current law) and it suggests that liability can begin before proper investigation if a prudent landowner should have known damage might occur and did not investigate. But it's a fine balance. In the Khan case the tree owner it was found should have been aware of the possibility of damage from one of the trees but not from the other. This was found even though the court was satisfied that Kane had no actual knowledge. All the usual caveats apply here. Are there shrinkable clays? Are the foundations negligently designed or built? Are there persistent soil moisture deficits. Is the damage really subsidence? Was it the tree that caused the subsidence, or something else? And so on... Quite right to be concerned about heave. The tree should not be removed without specialist advice. This may or may not be provided by the insurer. Involve the insurer. And of course, the moment after which the tree owner would be expected to have knowledge of the possibility of tree-relted subsidence has passed.