daltontrees

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.

Would it be fair to say that the area in the foreground of the 2nd photo has been excavated for a landscaped garden? If so, there's the cause. Fungus looks saprpphytic.

Can anyone help out with this please? Looks like a very overgrown shrub.

That's clear. No possibility whatsoever of subsidence. I can't really add anything to Gary Prentice's suggestions, thye seem to be as much as you can do. The damage to the building may be a result of setlement or shortcomings of building design or execution.

Quite right to point out the different law regimes, but please note the rules are substantially different up here now especially with removal of the 5 cube exemption for native species. See above my reply to OP, I don't think it's clear-cut that there's not much of a problem.

The Forestry Commission no longer exists in Scotland, it has been replaced by a government agency. The Forestry Act has been repealed, and so the rules and exemptions don't apply. We have a new Act and a separate set of Regulations. The rules are a little simpler than before. There is an exemption for 5 cu.m. a quarter. Also for trees in a 'garden'. No definition of 'garden'. But the 5 cube exemption is withdrawn if the trees are a native woodland. From the plan and aerial photo, I'd say you need to be cautious, the trees are more than just part of a garden and look to be substantially native species within a small woodland. In other words (if I'm right) you cannot fell anything without a license. If it's not urgent, ask Scottish Forestry. You don't want to be their first prosecution.

The spil type may not be relevant to subsidence, the underlying geology is. You can have loamy, chalky soils on shrinkable clays, although it's unlikely. COul dhte OP check the BGS site http://mapapps.bgs.ac.uk/geologyofbritain3d/index.html and tell us what the 'bedrock' gelology is?

hey look like mini mini brackets rather than a crust. Better pics needed.

Thanks Gary. The abuse of the appeal process to buy extra time is only good if it ends up as an approval, otherwise the Council has a deemed refusal to defend and and actual refusal with reasons. Even an approval could be appealed is the conditions are considered unacceptable. These several years of austerty and cutbacks and disappearance of TOs has left Councils shameless about not delivering even statutory service turnarounds.

Only time I ever wore one was when surveying trees on a local golf course. My survey method statement says that a tree is not approached until it has been looked over from a safe distance for obvious hazards. Climbing inspections are another matter. And while on that subject, I recently was asked to provide £5M public liability insurance for climbing surveys (£800 p.a.). Since I don't have PLI for any ther reason I told the client that I would take the job on if he paid the premium on top of my fee. He gave in.

8 + 27 = 35 weeks. 8 months. Quite frankly ridiculous. Is there any reason why a Council can't determine an application after appeal and have the appeal withdrawn (assuming it's an approval)? Last time I threatened a non-determination appeal the TO went out to it the next day and approved it the day after that. Appeals in Scotland rarely take more than 3 months, usually only 2. I've never seen an appeal against non-determination. TPOs seems to be rarer up here though.

Yes we are mixing terminology for two related things (i) All confirmed TPOs must be kept available for inspection (but not necessarily inthe form of a 'register' (ii) All TPO applications must be available for inspection in a public register. So to clarify my ealrier comments, I mean that the non-availability of a TPO for inspection, free of charge, at all reasonable hours, at the offices of the planning authority by whom the tree preservation order was made, is a breach of Regulations, both sides of the border, and that Mynors alludes to this being a defence against prosecution.

The damage is already done. Best not to do anything else on site without the Council's agreement. Meantime, grovel.

I recently visited Highland Council's offices and insisted on seeing a TPO. There wqs no Register, but they jumped thrugh hoops to get me the info. Eventually. Ditto East Renfrewhsire. It doens't have a register. There's a related issue, and it's importance varies between Scotland and England. Knowing the existence or even extent of a TPO is not enouhg, as the contents of Orders is not stnadard. Just to makr absoultely certain that no-one can assume what a TPo contains, the Scvottish Parliament revoked the Regulations that contained the TPO pro-forma, and replaced them with a Model Order which is not mandatory. Worse still, up here the exemptions are in the Act, not in the new Regs. England does it the other way around.

If you read the article you may conclude that CAVAT makes little or no attempt to measure the environmental benefits from trees. It's an accounting exercise for trees as assets and an optimistic starting point for compensation for tree loss or damage. Helliwell makes no effort to value environmental benefits. itree eco makes an effort.

I've put the Council on notice to that effect, but mainly to incentivise it to get its act (or should that be Act) together. On the basis of Jo Heuch's pertinent observation that no copy of confirmed TPO means no enforcement, that could be right. On the other hand, the Council may have confirmend and recorded the TPOs but can't or won't get a copy form Sasines unless it is contemplating a prosecution. So what I have done instead is told the Council that if I or a client try to find out if there is a TPO on a tree only by visiting the Council office and asking to see the register, then no register entry means no enforceable TPO. I think there is some allusion to this defence in Mynors.

I'm going to stick my neck out and add that I don't think public access to TPOs comes under the Environmental Information Regulations because it is prescribed separately, predating the EIR by 14 years down there.

I've had a quick look at tthe decision. Looks like the Council refused a FoI request correctly on the basis that the info was available as 'environmental' info by another established process at its office. The decision arrived at a criticism of how much the Council charged for the information rather than that it wrongly refused FoI or wrongly made charges. The amount was just too much. I had this recently at a Council who wanted to charge a very large amount for a print-out of a planning permission or any part of it. I visited the office instead and got the whole file for free on my memory stick.

I have been on the receiving end of this. "Reasonably accessible" doesn't have to mean free, nor does it have to mean available from the Council. Anyone (but usually conveyancers) can obtain land charges information for a fee from the Land Registry. I would expect a Council to reject such a request. I amn't aware of that case, I'll have a look.

There's a FoI exemption for "Information which is reasonably accessible to the applicant otherwise than" under an FoI request. So if land charges can be obtained by a conventional public process (free or otherwise), an FoI could be refused.

My local Council (South lanarkshire Council) has admitted it has no copies of its TPOs before 1996. They're all delineated in the Local Plan but no paperwork. An area of 1,800km2.

I just re-read the OP. The brick wall is on an old sandstone footing. That explains the lack orf resistanc eto movement of the wall and the legth of wall affected by the movement. I withdraw my suggestion fo a concrete beam. It's too late for that. It probably needs a lot of wall and footings removed, mini-piles inserted wherever possible between roots and a ground beam cast on top then rebuild wall. The LPA may well be in the compensation zone and the approval may partly be a refelction of that.