oslac

Why not construct the garage above the ground. Insert micro-piles which can be inserted under a suitable methodology and construct the ring beam and concrete floor above the existing ground level leaving a void. The issue with the crown is separate but it looks like your arb has stated that only minor or limited branches need removal. I would argue with the TO and say that building above the ground is outside of the RPA. If the TO is concerned about the piles being close to the tree, this can be dealt with (as mentioned) under methodology or cantilever the foundation.

I would also ask the Case Officer for the specific reason why this was proposed for refusal rather than a generic comment. 

Also and without knowing what T6 is and its visual impact but the tree doesn't look particularly big, you could go for its removal and if necessary replant under a landscape condition.

No TPO, no CA restrictions, possible planning condition - that would be a problem solely for the property owner, that's what I was asking??

I think you are right. The only real penelty for the Contractor is a potential loss of reputation and possible cost implication for works being stopped whilst costs and overheads continue. If I was that Contractor, I would be very upset with the land owner if it turns out that the landowner asked me to do something which costs me money which was in breach of planning.

👍🏻

 

Just a supplementary thought as relates to OP situation:

 

If I understand it correctly, Planning condition applies to the property owner rather than a potential contractor.

 

Contractor "could" do as requested by property owner (if, as stated no TPO in effect.) No penalties applicable to contractor for a breach of a planning condition, nor any obligation to check (unlike TPO / CA)

Not too sure but I thought it belonged to the property i.e. the land. That is why you can sell land with planning permission.

The law of TPO is likely to come into force if any unapproved works are carried out on a protected tree. Both land owner and tree surgeon are open to prosecution.

It doesn't matter who is carrying out the works or who instructs, if there is a breach of planning, then there is a breach of planning and enforcement can be taken. Enforcement leading to conviction in a court is a very rare thing and it will be up to the legal eagles to navigate the prosecutions but usually enforcement is an instruction to do or not to do something and the stick is that the works can be closed down.

So there's already a way to impose monitoring.

 

What happens where there is no planning discharge?

Then there is no planning discharge. It will show up on the search when the house/development is sold but some folk don't care about such things.

The council's seem to want the Consultants to do their job for them. Probably because the TO is overworked and understaffed. By including all of the monitoring stuff in the approved docs, the TO is probably hoping that some sites are monitored but these are likely to be well run sites in any case.

The Consultant is hardly going to dob their Client in and therefore, policing of the condition is a bit of a wing and a prayer. Enforcement is no good after the development is completed and therefore, the LPA needs to fund TOs to do their job which is in part, following up planning conditions. In the great scheme of things, money spent on social care wins votes and money spent on enforcement doesn't . . .

You would hope, that like writing BS5837 reports, the consultant would remain objective. But I take your point and think I'd probably have to agree they'd be a certain degree of pressure.

 

One way I imagine it might work, if the local planning had a list of consultants they trusted to monitor the site and conditioned usage of that list (might be shaky legal ground), and if it came to light the consultant was bowing to pressure - hearing, then off the list for good. Just a thought.

Council lists do not work and neither do council statements such as 'use a registered consultant of the arb assoc' If you have proper qualifications and experience, you should do what is right and make your judgement based on the approved documentation and good arboricultural practice - hopefully they will not contradict each other.

Even when monitoring is included within the approved documents, the Consultant still needs to be invited to site by the Client and paid for their time. Many Clients see the monitoring as a waste of a lot of money and they may be right.

One solution would be to provide two tree related conditions within the Decision Notice. The first is to discharge the arb documentation and the second is on completion of the approved amount of monitoring viists and satisfactory outcomes. If the monitoring visits are not carried out as approved, then no planning discharge.

Some Clients won't care and some will try and bend the system but I cannot see any other way in the present system which will have a chance at working.

I would speak to the TO to gauge his/her view. The Client may want to engage a planning consultant who would look into the LPA's policies on housing or whatever the application is for. If the TO is adamant that he/she will oppose the development on the grounds of the loss of a TPO tree and you cannot resolve this any other way, I would say you are doomed to failure and outline or full won't make any difference.

If the TPO is supportive or you think you could win the planning argument, you could submit a plan and documentation (as part of the outline scheme) showing the tree for removal. If the council approve the outline scheme with the TPO tree shown for removal, I would say you are home and dry otherwise the principle of development couldn't be fulfilled.

It is also usual to submit a supportive landscape scheme to show mitigation for the loss of the TPO and also to mitigate for screening of the development etc. This landscape scheme would probably be refined at reserved matters stage but at outline stage, it would give the LPA a clear indication of the benefit (including landscape) of the development within the public realm.

Hi,

 

Just thought I'd try and get some more information on this matter...

 

Where a new development site has been built, and the landscaping completed, the existing vegetation and trees are then protected for (x) amount of time according to the planning.

Surely, where a tree is to be retained for (x) amount of time, it can only be retained or conditions to what can be done in terms of pruning work if the tree has a TPO?

 

...Or once the (x) time is up, and the tree hasn't been TPOd it could potentially be removed?

 

If this is the case, why not put a TPO on it at the development stage to permanently retain it?

A soft landscape scheme is usually accompanied with a soft landscape specification and a five year establishment (management) plan. This will form part of the approved documentation and any works as set out within this document can be carried out with no further recourse to the LPA. In reality, soft planting works are rarely followed up by the LPA and all sorts of horrors occur with the management/maintenance.

It wouldn't be realistic to serve a TPO on every tree planted within all planting schemes and it probably wouldn't be realistic to serve a TPO on all the trees within a reasonably large planting scheme. The on-going costs and time would probably break most LPA trees/planning sections.

Once the planning condition comes to an end (usually 5 years), there is nothing to stop the trees from being removed or left to die. Just look at most supermarket car-parks where one or two trees are miserably hanging on.

My view is that there needs to be a change to the T&CPA to allow soft planting conditions to be unending and replacement for dead or dying trees could be enforced inperpetuity. If there are to be any further changes to the planting layout, a new planning application must be submitted. This way we can require replacement trees in our semi-public spaces. I raised this point with the Secretary of State . . . he isn't my mate and I only wrote him a letter but was informed that this was not part of the Government's thinking but thanks for contacting us. Until the Government sees how important trees and landscape is, I don't hold up too much hope that the quality of our landscape will improve.

There always appears to be plenty of capital money to create wonderful planting schemes but rarely the revenue money to maintain them and perhaps this also needs to change.

I think you may both possibly be on dodgy ground. How do you get the no dig drive down to meet the highway level when you consider that the RPA probably meets the highway. I think you need to grade down and that may require TPO consent. Otherwise, you may have a steep ramp onto the new drive, pretty unsightly.

 

The LPA will know as soon as you start work so I wouldn't go under the radar. There are other considerations. What if the PD rights have been removed from the property say by a long standing condition? What if the planner comes out to look and says that the change in level is an engineering operation and therefore requires consent? I've seen this happen and its can stop works half way through.

Oh, so much to consider.

Ok the easy one first. I would be very surprised if it would be classed as engineering. This has never come up with me and I would be astounded if it ever did, unless I was constructing some fantastic structure and even then, I doubt it would be an issue.

Driveway down is an issue and there is no real answer to this. I would apply for a cross-over and let the council do what the council do best and ignore the tree and its roots whilst dropping kerbs. This issue is variable though and may depend if the meeting of the proposed parking area and roadway/footpath is already paved or bare grass. In any case, it is likely to be a Highway issue if a vehicle crosses the footpath.

I don't think there is anything in the TPO legislation to stop you from cutting tree roots and/or changing soil levels providing you don't (and to paraphrase) destroy the tree. Its not a BS 5837 issue, unless you want it to be. It may be possible to hand dig a trench and see if roots are present. It may be possible to sleeve roots, to plate the rooting area, or to offset the rooting area.

I don't see why PD rights would be removed. If in a Conservation Area, PD rights will almost certainly be removed. If a condition, 5 years is max. Both easy to check.

I know every situation is different and what works for one may not for another, and in this situation, we don't know the facts but my point is, you do not need to go running to the TO. As a consultant, you should have enough knowledge,experience and skill to manage the situation and rather than ask the TO, perhaps you should be telling him/her. Even if you do feel you need to speak to the TO, I would get my paperwork in line first.

If the TO turns up make him/her a cup of tea and talk about more important things.

Mind you, some TO's are so involved with their work that one of my client's was told that they could not use their ride-on mower beneath a TPO tree's canopy growing in their garden for fear that compaction would occur.

Levels can go up as well as down Chris!

 

I'm definitely presenting the "devil's egg based alcoholic beverage" position, but all of what is briefly described COULD be achievable without any acquiescence (cost or acknowledgement of authority) to assumed legislative authority if the land owner were of such a temperament to be sufficiently independent of mind and deed!

If you are saying that a half decent arb consultant would instill such confidence in the Client as to make him/her realise that all tree related issues, including construction methodology would be fully covered and that contacting the LPA is not only not necessary but could be detrimental to the whole process, I agree with you.

Providing the property is outside of a Conservation Area, it is likely that Permitted Development Rights will allow you to construct a fence (1.0metre to front and 2.0mtere to resr is usual although there are some oddities with this).

PD will probably allow you to construct a car parking area. So far so good and no planning is required and no communication with the LPA or TO is required.

The only concern here is damage to a TPO tree but if you employ a good arb consultant, there will be a range of methodology available so as not cause damage.

My view would be to involve a good consultant, have them, inspect the tree if they agree, ask them to prepare a methoology for the car parking and fence.

Follow the methodology to the letter and everything should be ok. No need to involve the LPA or TO but you have the paperwork if anyone comes calling.l

How the planning process ended up with this scenario is beyond me. Either the tree should have been removed at the planning stage and a landscape plan implemented, or the building moved away from the tree. There is only one winner here and the TO, the Case Officer or the Members should have been bold enough to do the right thing.

If the building is deemed more important than the tree, and if the retention of the tree will result in its decline or the potential future nuisance of residents/occupiers of the building, then the most sustainable outcome is remove and replace.

It can be difficult to get it right for all parties but in this case, it looks like someone got it wrong.

I have:001_tongue: and Paul Melarange is involved with them. Not sure but I think Paul Muir from Treework Environmental Practice may be the only practitioner atm

 

Fascinating, and pretty damned conclusive testing.

If anyone has the kit and experience to do this, maybe a bit of CPD could be arranged as I would like to think there are a few consultants who would like to see a pull test in action. Ideally in or near Essex

Agreed - a fine cost / result balance is required when spending others money.

 

Maybe I make it all too 'personal' but if I'd received that decision notice I'd feel professionally and morally obliged to follow up (perhaps more realistically, pre-discuss positions with with TO prior to DN) what appears to be a fairly generic, unimaginative and lame brush-off DN based on less than compelling consultee input.

 

Perhaps that region isn't blessed with approachable, sensible and experienced TOs who have the time / resource to engage with applicants?

Many TO's are (and I am treading on dangerous ground here) but not up to the job. I am an arb person but one of my other fiddles is that I am a Chartered Landscape Architect which is a good combination especially when it comes to trees/planning/construction/methodology. There are numerous times when the TO is responsible for the landscape element of planning applications and so I have the TO, telling me how to plant trees, my choice of shrub is wrong, maintenance is an issue, even commenting on my LVIA's, then I have TO's commenting on structural issues and so on. I took an arb degree a few years back and my dissertation was about the qualification level of TO's versus their decision making in relation to how much of an RPA they would allow to be built on (old BS). In general, the more academically educated the TO is, the closer was their spread of opinion. The lower their academic level, the wider their spread of opinion. Sounds obvious but then apply that to the real world and you have TO's giving out opinion which is wrong or uninformed or contradictory or emotional. This often adds delays and price rises to a project and makes the Consultant (in the eyes of the Client) look like they don't know what they are doing.

Give me an educated and experienced TO who has a pragmatic view of the world and keeps their emotions at home, sadly not enough of them about.

But in your last you repeated Picus. So how would you go about it with either? I am genuinely interested in learning something here.

Perhaps I should have mentioned resistograph in my second post but as it was mentioned in my first, I though I had got the point across. My bad

I was not advocating the use of either, I think too much money can be thrown at the so called 'proving' a potential hazard tree. Yes it is possible to go to extreme lengths to prove but where does it stop.

Carry out a tree inspection by an expert (Consultant), then

Carry out a picus on a limb or trunk then;

Resistograph on the buttress roots and possibly surface roots then;

Ground penetrating radar for the remaining roots and then just to make sure, air spade to expose the roots for complete investigation and we come back to the need for the picus and resistograph.

All invasive and non-invasive techniques have their limitations and I guess the most cost-effective and resilient method to reach 51% probability is recommended. What that method is should be down to the Consultant. Otherwise the Consultant is redundant and all tree inspections will need go through a process of assessment based on tools and computers and carried out by a technician.

Not sure the cost justifies the outcome though.

oslac, I am intrigued to know how you go about testing for root decay with a Picus?

I think I said in my first post picus/resistograph.

The homeowner appears to have been "content" to accept the refusal notice rather than progress the matter.

 

The survey report failed to provide sufficient evidence to PROVE the probability of failure (or provide sufficient weight of evidence in support of the probability.)

 

The TO appears to have relied upon the old "amenity" chestnut to recommend refusal.

 

If the homeowner or surveyor had had sufficient conviction they could have progressed to more advanced investigations (leaning Beech - Merip? GPR root finder?)

 

Will be interesting to see where liabilities are laid!

 

The lesson I'd take from it is, if you really believe the cause is just, never, ever give in (unless you have a signed indemnity excusing you from progressing any further - wether that be from the tree owner or the authority who is taking on liability as a consequence of refusal.)

Sounds good but the reality is that homeowners can't or won't keep paying out for advice. They employ a consultant at great expense and then the consultant says, this is my opinion but you will now need another expert with a picus to agree with me and by the way and additional £500 will be required, or maybe an appeal with no guarantee that my (consultant's) opinion will be agreed with.

I think its very difficult for homeowners when two so-called experts are locked into a battle with spiraling costs. Proof is a difficult concept especially when it comes to trees. These are weasley words used by TO to show that they are considering the issue but don't agree. The TO should set out why (in their opinion) the consultant has got it wrong. Using words and phrases like:

Not enough evidence, or the consultant is unable to prove or demonstrate are meaningless and leaves the consultant and the Client in limbo land.

Seems amenity has taken priority over safety. Third opinion should have been sought. Good survey report I thought.

 

Sent from my Nexus 7 using Arbtalk mobile app

Why should a third opinion be sought. The surveyor appears to be qualified, his report seems to be comprehensive as does his conclusion. The Tree Officer has decided to overrule the opinion of an expert.

The question I would consider, is not whether the tree has amenity value but is the surveyor's opinion relating to the tree's structural integrity defendable and if it is not, the TO should set out why the expert's opinion is wrong.

Requiring additional information (picus/resistograph) may be the answer but perhaps the TO should understand that bonfires can cause extensive and irretrievable damage to a tree and noting the lean and location of the tree, should consider the probability of failure rather than be swayed by the amenity value.

Trees planted pursuant of a condition are not automatically protected by the original order. The LPA would either have to vary the order or serve a new one.

 

Trees are only protected by the original order if they were, felled in contravention, felled because they were dead, or felled due to an immediate risk of serious harm (i.e. they were exempt due to condition).

 

I'm not convinced they can condition that you replant before felling either although I'm not sure about this. I would appeal the condition just to see what happens.

 

Regards

Thanks for the comment, I should have known this . . . . I have now checked the legislation and you are right. The conditioned replanted trees do not carry the TPO.

From the LPAs perspective they want them in and signed off. Its a pain when you have to start chasing them up at a later date.

Yes this is correct but I think it is also not compliant with the legislation. The council wants to know that the replacement trees have been planted before removal so that they won't need to enforce tree replacement at a later date should no tree be replaced.

The original TPO tree (two trees in fact) have been given approval for removal to facilitate a proposed development. One of the trees is in in such poor condition that it has been given a U category (BS).

The replacement trees do not need to be in the same spot as the trees approved for removal but can be planted near by. In this case, nearby means a few metres away.

So if the replacement tree does not carry the TPO (can anyone point me towards the legislation on this point), what is the purpose of the condition to replace a tree unless the council have it in mind to then serve a new Order on the two newly planted trees.

A bit of a conundrum:

Permission has been granted to fell a TPO tree with the condition that a replacement tree is planted prior to the TPO tree being felled. All sounds normal and above board:

If the replacement tree is planted before the TPO tree has been removed, does the replacement tree carry the TPO? If so, then we have the situation when two trees are protected by the same TPO (no revocation of TPO on existing tree and the Order only refers to one tree). This is further complicated because, if I then decide not to fell the TPO tree, we have a legal limbo.

In addition,, if the so called replacement tree has been planted before the TPO tree is removed, how would it be legal to transfer the TPO from the existing TPO tree to the new tree without serving a new TPO on the replacement tree. The replacement tree would now be an existing tree as it existed prior to the removal of the TPO tree.

My thought is that, firstly the condition is not enforceable, secondly the LPA cannot transfer the TPO from the existing tree to the replacement tree and thirdly, the council are therefore required to serve a new TPO on the replacement trees.

Does anyone have an opinion?

Seen some similar locally. Not consistent on all responses, seem to be a bit random but they are "dressed up" to look like conditions.

 

Trouble is, there are still some people that take an official correspondence from "the ministry" as an authoritative direction that must be adhered to.

 

Had a re-stocking notice issued to a 90+yo landowner client recently. She was really shocked & upset by it. Daughter phoned me to resolve it. Quick meeting with TO and a firm line that unless written retraction issued PINS & associated costs would be applied.

 

Written withdrawal followed, no apology mind.

Using the passive-aggressive threat is worth using when you know you are right although I don't think mismanaging the CA 211 system is a PINS issue and therefore no costs can be applied.

I think this is a case for reminding the council legal team that either one of their Tree Officers' has gone feral and is making up law as he/she goes along or the whole department is using inappropriate and misleading documentation to prevent legal works from being carried out. Possibly a case for the Ombudsman who can apply costs.

In any event, this particular case of incompetence appears to have a corporate identity as the 'Notice of Refusal' has been signed off by the Director.

hi all

 

Just wondering if any knows what the legal minimum for new construction of pedestrian pavements/footpath (public).

 

I understand that people say the min width is for mobility scooters but Im trying to find where its actually states it.

 

any help would be great

 

thanks

tree

Have a look at the local Design Guide; 2 examples below.

They set out pavement widths in relation to road type for new developments.

https://www.essex.gov.uk/Environment%20Planning/Planning/Transport-planning/Infomation-for-developers/Documents/19715_essexdesignguide.pdf

http://www.devon.gov.uk/highwaysdesignguidepart1.pdf

You will need to search for the info but its there.

Well put, Paul. It's not a rule, it's a starting point. Justification for accepting or rejecting it is always required, even if it's the acquiescence of teh LPA. And detractors of the arbitrary 12x may wish to consider how any alternative formula (10x, 15x, 20x...) would be justified.

 

Sorry Gary, it being easy to calculate at 10x is not a good justification. Nice try, though.

The 12x is arbitrary as would be any other multiplication. Its not about the multiplication but the arbitrary nature of the multiplication. You seem to be suggesting that because a formula for the RPA is required it's OK to pluck a figure out of the air, in which case, why not 10x or 15x.

It is not for me to justify the formula of the RPA, that is why clever people are employed to work these this out for us but it would be helpful if there was some science in the system.

My earlier point was that roots can grow well beyond the RPA and if, as far as the BS is concerned and many TO's, consultants etc. are concerned, the tree roots can be reduced to the extent of the RPA and all these people are content with that, what was the point of the tree growing such extensive root systems in the first place. The comment from Paul that this is the the "minimum area around a tree deemed to contain sufficient roots and rooting volume to maintain the tree’s viability" doesn't stack up if the RPA is an arbitrary size. I have seen many a council owned tree have their rooting area sliced in half to accommodate a footpath yet continue to thrive.

It seems to me that a Standard was required, protection of tree roots are required in some way and so an arbitrary way of determining an RPA was invented. We all work to it because it is the system, but actually it's is a load of cobblers and not supportable.

I don't have any suggestions about a better system but then again I am not clever but I can still see the flaws in the present system

Think you just answered your own question there mate. Anchorage. If the tree falls over it has no potential to recover. Plus you will have fibrous roots on the inner RPA anyway and I would imagine its easier for a tree to regenerate small roots than much larger ones.

 

Not saying fibrous roots are not important (so I probably worded it poorly) as they clearly are but, would you rather recommend removing 50% of the fine roots or 50% of the structural roots? What do you think would be more damaging? To be fair the removal of 50% of the structural roots would automatically remove way over 50% of the fibrous but I'm going off piste now. My point was that if you trenched around the RPA that would probably remove 50% of the fine roots based on roots fanning out and becoming fine in that area. I have no source for this its just me speculating to respond to the other post.

 

 

 

Other opinions may differ.

 

Cheers

Mmmm. My post wasn't really about one set of roots versus another. I believe that nature doesn't do anything for fun and as such all roots are needed. The point is, if you remove all of the roots outside of the RPA which could be a considerably proportion of the whole amount of roots, how come that is OK in planning terms and OK in BS terms and OK in Tree Officer and Consultants terms. So whats the point of these roots outside of the RPA and where is the evidence that 12 times the trunk diameter is the magical number between tree being happy (Planning, BS etc) and unhappy (Tree Officer etc). Why not 15 times diameter or 11 times diameter.