Roz

I agree but its not always that straight forward to bring a criminal prosecution once all the facts come to light as it has to be 99.9% not based on balance of probability, in the respect that the Council also have to consider is it expedient and in the public best interest. In this case YES, I had one 18 months ago where a sub contractor removed 10 of 12 TPO trees on a development site. Straight forward you would think? Well the developer held a site meeting with all parties - tick in his box, the arb consultant took the TPP and stated how the trees were marked and they were fenced off leaving the TPP on site - why wouldn't you?, the contractor sub contracted and they said they never had a copy of the TPP and to add to the mix the site was under remediation for asbestos so they all blamed the remediation company as they were in control of the site and pointed the finger at the guy on the ground in charge on the day who apparently couldn't speak English and just wanted the job done. To add another layer this arm of the remediation company went into administration after completing the project so we couldn't interview them under caution! The trees removed were identified for retention within open spaces following planning approval of an agreed layout so at that time it wasn't that they were going to benefit financially from putting more units on the site............Id say one big F@*K up......I think the Council would have looked like an episode from the Magic Roundabout with that one in front of a judge !! On the flip side they agreed a hefty replacement scheme of 10 specimen trees........................ I would guess to a certain extent this was fairly straight forward case.........bloody good result though

If you read Biddle heave is not as common as subsidence and in my experience from data supplied by insurance mitigation companies when you question the risk of heave they run around chasing their tails licking a finger and sticking it in the air to get an answer. I am no expert but one factor that has to be considered among others mentioned is the moisture content of the soil when the property was constructed? I note when it was built so while you wont have a definitive if for example built on already desiccated soil this has continued to potentially dry out slowly over time with some seasonal re-wetting, whereas a site which has been built on when the soil is at field capacity and has had the soil moisture gradient drastically modified by development etc may experience a more dramatic volume change? Doesn't answer the question to fell or not to fell but another aspect to ponder.

I embarked on this project some 5 years ago when I joined a new LPA - and I am still reviewing - its time more than anything and as already said its a massive administrative task just make sure you have the legal team on board if they make and serve the TPOs - I have over 40 sitting in legal going back to 2014 from reviewing part of the town !! I have also digitised so everything is on the corporate system and linked to the TPO doc - I'm not being dismissive its a big task you will need to think logically as it can become a bit overwhelming if your doing it on your own. The one think I would say is ask yourself what do you want the end result to be? and how do you want to manage them in the future - If you are/have/can digitise what information do you want to be available? Make sure your data is clean data or you will get in a mess and disapeare in your own spreadsheet. Re TEMPO its an accepted assessment and I use it for informing a decision to serve, also I would be cautious of producing large TPOs, smaller ones relating to a property in the long run make life more simple and remove ambiguity. Don't forget the 2012 regs brought all TPOs of whatever age onto a level playing field - but reviewing them is important as land use changes.

As the tree is not afforded any statutory protection then its down to what you are happy with in terms of good practice and if you have spoken to the owners of the tree? Personally i would not want to remove the overhanging stem or leave a large wound - while it may not impact significantly upon the tree as they can be more robust than we give them credit for would you be happy with the result? If the owners are in agreement then total removal with the offer of a replacement may be a more sympathetic way to go. Its not a perfect world but only you can really answer your question of do I don't I?

I guess what it demonstrates is that until such time something is tested in court it is down to interpretation - and that's what the barristers get paid for word play and a battle of BBB's until it may make sense and a ruling is made. I know Mynors always said that if anyone has a case of a TPO tree being reduced back to the boundary under common law without an application being made to a LPA for teh works and the LPA were going to take legal action he would like to take it on for free as it had never been tested in court......... Sent you a PM ref TPO review and links - don't know if you've picked it up

While the initial question appeared straight forward for those who like something to get their teeth into - Gary, Jules Trees do not know trespass........you may also be interested in this ref 'actionable nuisance in terms of the statement of 'Common Law Right' that the industry correctly or incorrectly throws around......its a little long ........ ......comments from the case of Perrin (involving Robin Green) in 2007: 34. As a result of these authorities, Mr Green, on behalf of the claimants, submitted that s.198(6)(b) was doing no more than enshrining in statute the common law right of a neighbouring land-owner to remove the branches and roots encroaching above or into his property, even if no actual damage was being caused. He submitted that, effectively, s.198(6)(b) was preserving the common law position even where the tree was covered by a TPO. In this submission he was supported by Mr Charles Mynors, the learned author of The Law of Trees, Forests and Hedgerows (London, Sweet & Maxwell, 2002). At pp.463-470 of his helpful book, Mr Mynors argues that the nuisance identified in s.198(6)(b) does not have to be an actionable nuisance dependant upon damage, but a nuisance in the broader sense of the common law. 35. I have reached the conclusion that this argument, although persuasively put by Mr Green in the present case, is incorrect. I conclude that Mr Findlay is right to submit that the reference to “nuisance” in s.198(6)(b) means “actionable nuisance”, where damage has been caused or, if no action is taken to prevent it, will imminently be caused. There are a number of reasons for this conclusion. 38. More importantly still, I consider that, as a matter of construction of s.198(6)(b), the reference to nuisance must be taken to be a reference to actionable nuisance (i.e. that damage must have been caused or must be imminently like to be caused) in order to give coherence and effect to s.198(6) as a whole. The other exemptions in s.198(6) will, so it seems to me, arise relatively rarely, and will only operate in limited situations such as a dead or dying tree or a tree which has become a danger to those passing close to it. It can only be consistent with the remainder of s.198(6) to read the reference to nuisance in s.198(6)(b) in that context, as a situation which will not arise on a regular basis. It is common for the tree roots in one garden to encroach onto or into the neighbouring garden, but, fortunately, much rarer for those tree roots to cause damage to the foundations of the neighbouring property. It therefore seems to me to be consistent with s.198(6) as a whole for the reference to “nuisance” to be a reference to “actionable nuisance” (requiring actual or imminent damage), which will arise relatively rarely, and not just “pure encroachment”, which will be much more common. 40. Any other interpretation of the word “nuisance” would, so it seems to me, lead to absurd results. It would be completely contrary to the purpose and scheme of these parts of the 1990 Act, if a man could fell his neighbour's tree, despite its protection by a TPO, because one of its branches overhung part of his garden or because some of the roots of the tree ran under his lawn. It would be contrary to the principal purpose of the Act if TPOs were to be of no application in any case of overhanging branches or encroaching roots. Something more must be required in order for the TPO not to apply, something significant and relatively rare, which balances the primary purpose of tree protection with the right of an individual to live in a safe and unthreatened home. Accordingly, for all these reasons, I have concluded that the reference to “nuisance” in s.198(6)(b) must be a reference to “actionable nuisance”. The judge cited support from two other cases. So the owner of the adjoining land must prove actionable nuisance in the sense of an existing or imminent threat to property. Further, they would then have to show that whatever works they were carrying out was necessary. In passing…… falling leaves or twigs is not a nuisance.

Could be Rigidoporus ulmarius - you need to have a better look at a cross section to see if there are obvious tubes - others on here will no doubt be able to give more detail.

...The piece of land as you identify was newly acquired from the council so the conveyancing/legal documents from the council who would be doing the land search for any party didn't flag this up........The council kinda failed at the first hurdle >?!?!?

OK ...some of you are bashing Jose for not directly contacting the council quite clearly the council have not acted appropriately in their processes and records being 'CRAP'........no real surprises there?!? So to place some council context on this I have been with this current council over 4 years 15 years in total in LA........when I joined this council there was a major development in a rather 'nice' part of the town and many residents and local members kept saying there was a TPO. I was not part of the planning process development already approved before I joined - all the information I inherited, files of copies of TPOs, incomplete spread sheets blah blah there was no ref to a TPO and nothing plotted on the system, checked with legal - nada. So this week land charges sent me an inquiry about a TPO on the said site as properties have been sold, my response there's no TPO, land charges there is Roz and this is the ref.....................back to legal.....................oh yes there is and it was confirmed...............................so planning aside information goes missing..........councils aren't perfect and there is one thing courts hate.........Incompetent councils. In going to court ..if a court doesn't throw it out............Jose might be hauled across the coals and made to feel a tad silly but I would guess the council would get a butt kicking for twice not providing the information through 2 different processes - if all the facts are as we have them.

I agree - I have spent hours hours just collating the TPO data for this council and I am hoping by the end of June for it to go live - it wont be perfect but I can then go out and ground truth but all TPO docs will be available from the maps. I'll send you a link to see what you think ?!?!?

One line of exploration which I think all have omitted, if not apologies - for those with Mr Mynors book page 781 the first question to be asked is.....is there sufficient evidence available to prove "realistic prospects of conviction"?.if there is then the prosecutor - the council - must then ask is a prosecution in the public best interest and there are several factors militating (of a fact or circumstance) be a powerful or conclusive factor in preventing) against prosecution, this includes - the offence was committed as a result of a genuine mistake or misunderstanding. So if we have all the facts (not supposing otherwise Jose) given as we understand the land recently sold by the council showed no TPO in the conveyancing pack, an e-mail from the TO confirms no TPO while a breach of a TPO has occurred (if there is a TPO) then the mistake stems from the incompetence of the council.................. I would go to court - I know of cases with our legal team when they have presented a case at magistrates and been told really is this in the public best interest I think you may want to think about this ? Th council have pushed it through out of 'were the council we know best' and been well and truly butt kicked by the magistrate and been hit with costs...........what a good use of public money huh...!?!?!?

Understand.............given its an either way offence there's no time limit but even so again the council need to be proactive otherwise courts don't take that well.......Mmm Not a nice situation to be in when you've done everything you can to determine the correct information, unfortunately the one thing councils are not good at is admitting they made a mistake

Good for him - would like to have been a fly on the wall. Of course there is also the hidden politics, local member trying to prove a point etc...........which in fairness can place us TO's in an awkward situation sometimes but even so. we aint perfect here in the world of bureaucratic tick boxes but even so no need to make yourself look totally incompetent......... What was the outcome or is your client awaiting a letter.........................

Interesting - god love the TO of tree police. Valid points made : - In the conveyancing the TPO (if it exists) would have been identified in the land search and it hasn't/wasn't A check on line and communication/correspondence with the council produced nothing and there's evidence /paper trial So council now say there was/is a TPO and they want to give you a caution to which you have to agree which thereby makes you guilty..............so don't accept the caution but offer that you are happy to undertake an interview under caution under PACE regs......if their trained to do it.? You will be cautioned but you wont be under arrest and can leave at any time, I would be very interested to hear their questions........?!?! When did you purchase the land..................errr 6 months ago from you the council Did you make any inquiries about the status of the trees - yes here's my e-mails and copies of the information you don't show on your mapping system. Ohhh errrrr do you have anything you'd like to say or add?.........................Yes can you tell me why this information was not produced as part of the conveyancing/legal pack? ......and where else I was meant to seek the TPO information (if a TPO does exist)..????? .....No ok see you in court While the offence is one of the contravention of a TPO I would be interested on a courts stance when the council can't even supply the information in their own conveyancing............A magistrate really hates an incompetent council

Call me odd as a TO but I find it really sad when I read the frustration you allseem to go through - I know everyone's different and councils don't do themselves any favors but I have always seen the role of the TO within reason to 'enable' in the respect that its about the tree(s). Validation only requires a sketch plan (among other details) to identify the trees on site not for them to be identified against the TPO, I am guessing many of the TPOs are ambiguous but our role (or part of it) is to manage the TPOs and therefore interpret the data we work with to enable. I have argued at two councils I have worked at that a copy of the TPO documents should be free - the schedule and plan as TPO files are public...........doesn't really help you though as your not on my patch