Chris at eden

He did my training for the Q74 via WhatsApp. I also did the advanced user training at their place a while ago.

Have you tried Treesource?

What do you mean? Turn around time for a report once surveyed or lead time to get a survey done?

That isn’t really a pollard although it is often what tree owners want when they ask for a pollard. It’s been topped. Topping is not great for trees and although trees often grow back you are kind of rolling the dice. Pollarding is done from when trees are small and on a regular basis. The cuts are small and become occluded forming the bolling over time. This means they become resistant to decay and they are not site for entry of pathogens. It does not take much energy to occlude them and you are not removing much stored energy in the small branches removed. Yours has lost a lot of stored energy from large branch removals and the wounds are too large to ever successfully occlude. Plus, they are quite prone to frost damage so pruning in January may not be the best time. You could try decompaction and mulching to improve the rooting area but it’s a long shot. And Enerbite injections to give the top a boost. That’s an even longer shot as trees have to be actively transpiring and the more the better. Yours only has a bit of leaf area. Chris

The problem with the old 20% offset was that some folk were offsetting them in the direction of, and under roads to create more build space in gardens. That doesn’t make sense as the soft garden area is likely to be ideal rooting whereas the road will be suboptimal. Some folk were reducing instead of offsetting as well. The new standard does allow for changing the RPA to reflect barriers to root growth but it says deviation from the circle should be justified by the Arb. I personally think there is some scope to offset slightly or at least there should be. I did an AMS a few weeks ago which was secured by condition, bad start I know. The building footprint occupied less than 1% of the RPA, from memory I think it something like 0.2%. A tiny amount. I suggested hand digging and root pruning under supervision. My logic was that roots at this distance will not be bio-mechanical, and any fine roots can be replaced around the rest of the RPA as the build was only to the east. This was all presented in the AIA. The TO came back saying that there was a road in the opposite direction so we couldn’t offset. There isn’t, the road is to the south. I pointed out that roots could be replaced to the north and west. He said no and insisted on pile and beam. For 0.2%. Problem was that as the LPA had secured the info via condition, there was no scope to appeal. I am okay with the 12 x Dia but I think that it should be clarified that some offsetting could be possible if justified based on common sense as above. I think a standard off setting of 20% is too much though without a robust justification. This is a bit off piste but one of the other things he objected to was the removal of a Cat U tree that was next to the proposed drive. It was split at the base and hung up in the adjacent tree. He first said that there was no justification. I pointed out that the condition was advised in the survey schedule and also in the specification of tree works in the AMS. He then said okay you can fell it but I want a separate TPO application and it needs to be shown as retained on the TPP. Bizarrely, he didn’t want a condition survey with the TPO app even though this is a requirement of the one app! What is the point! Cheers Chris

Not really. There are loads of engineering solutions to avoid damage and he clearly wants to retain the tree. In that case it’s either engineer around it or move the house. Planting replacements is all very well but none of us will see them at maturity. If the OP want a big tree in the garden then fell and replace isn’t an option.

It possible but why would you want to. Engineering solutions are likely to be expensive and the tree is always going to dominate. Then there is the perceived risk from tree failure to contend with, you ma not like it so much when it’s whipping around in the wind above the roof. I do development site impact assessments and method statements for a living and have been for the last 15 years. I would always recommend appropriate clearances where possible. I suppose if you live in a hot country then the shade will be a benefit. if you do want to build near the tree then you will need to look at specialist foundations such as tree safe. See here: Treesafe - Abbey Pynford ABBEYPYNFORD.CO.UK If you are looking to build near trees with a TPO, our patented Treesafe foundation is tree friendly and will help your get planning. Then you need to consider things such as service runs and hard surfaces. Like I said it’s all achievable but it will be expensive. You will need some proper advice from a tree consultant really. Chris

Be careful with the expediency assessment. An immediate risk is when someone calls and says 'is there a TPO on that tree as i want to fell it'. Or sometimes council's get tipped off by tree surgeons that have been asked to fell something that they don't' think should be felled. Yours sounds more like perceived or maybe foreseeable. As long as the tree is nice, has reasonable retention potential and is visible then it shouldn't be difficult to get to the required score to justify a TPO.

Agreed - TPO guidance is available online It should have but not always. I did an Arb method statement last week where the whole lot including the survey was secured via condition. The house is in the RPA as is the parking so its just mitigation. i agree

If there was no planning, your neighbour could build a massive 3 storey 12m extension with balconies that blocks all of you light and over looks your garden so you lose your privacy. Planning can’t refuse reasonable requests, they wouldn’t be able to defend it on appeal. They only refuse stuff that has a negative impact on the area or the people that live there.

I’m guessing it’s along the lines of, she paid a premium price to buy a house in the leafy suburbs and she isn’t in favour of a developer buying a plot and felling all the trees so they can get more houses, make more money and never actually live there.

I think what Jules is saying is that there is no exemption for dying or diseased. Those reasons alone would need an app. Felling for those reasons would be a criminal offence subject to an unlimited fine. Dying was an exemption before 2012 but diseased never has been. The exemptions are now dead trees or those which impose an immediate risk of serious harm. Both require a five day notice. Or removal of deadwood. They may well not respond to notices as they are not required to, it’s a notice. But if you felled a tree on the basis of it being diseased they could prosecute you and there wouldn’t be much you could do about it unless you could otherwise show it was exempt. For the record I would ideally want a response from the TO before I went ahead anyway.

Because some of the exemptions changed. The DDD for example. Other bits changed as well. The provisional protection being automatic, before 2012 you had to serve them with a 201 direction. The requirement to use the one-app, from 2008 i think. Some of the very old TPOs didn’t cover uprooting or wilful destruction, prior to 1976 from memory. The orders became more compact. Lots of reasons. The 2012 regs were meant to streamline things and bring all the historic TPOs under the protection of the new regs. So even TPOs from the 60s prevented uprooting and wilful damage. Annoyingly, I resurveyed and reserved all of the TPOs older than 76 at the LPA I used to work at in 2010!

Dead trees require a 5-day notice or retrospective notice. Dead branches don’t.

Have a watch of the webinar that Charles Mynors did on the AA website. Or better still, read his book.

Not really. It isn’t a case of touching the tree and saying it’s protected. There is the site visit, amenity assessment, the creation of the TPO and plan. Then it goes to legal who get it signed and sealed. Then it goes out registered post. When I worked as a TO I got the requirement to seal removed from the procedure because it took too long. It had to be signed off by the head of service and they have a lot of other stuff to deal with so it would take days. It took years to get an agreement as the procedure was written into the council’s constitution and that stuff doesn’t get changed quickly. It has to be rewritten by legal and then go to cabinet to be agreed. TPOs is a tiny issue and council legal teams tend to be busy places with bigger fish to fry. The TO isn’t in control of the pace at which it happens. And they get a ridiculous amount of requests to TPO trees, most of them unsuitable. I got asked to TPO a load of daffodils once in a highway verge. That was by a planning officer as well. She didn’t believe me when I said I couldn’t.

Yes within days if it meets the criteria. It has to have good visual amenity when viewed from a public place. And it has to be under threat. The developer buying the land is enough to justify a perceived threat but if it isn’t visible to the public then it probably isn’t suitable. Ancient or veteran doesn’t really come into the assessment.

When you tell a tree owner that they need to replace a TPO tree either as a condition or subject to section 206, I would say that maybe 1 in 5 times, they actually do it. Probably less than that as I was always surprised when they called and said 'we have planted that tree and we are letting you know so you can come out and check and update the TPO'. Its what the letter told them to do but it rarely happed so i was always really surprised. Getting TPO trees replaced is a right pain! When they don't replace them, you then have to write to them and tell them that if they don't plant it then they may face legal action. You ask nicely the first time and then progress to telling them if they keep ignoring you. That usually does the trick. Realistically, they probably assume that legal action is something more serious than being served with a notice. Very occasionally, you have to get legal to serve a notice under section 207 (a TRN). Then they usually appeal that via the PINS and they lose the appeal. Then they plant it. I've sat in formal planning hearings with the inspector listening to residents saying that they don't agree with the condition, even though they didn't appeal it at the time and negotiated the size, species, and position prior to being given consent. I used to let them pick the species within reason as i thought, well, they have to live with it. I always tried to get the tree replacement scheme if possible upfront so everyone knew where they stood and could appeal the condition if they didn't agree. I'd have it all documented via email as some people seem to remember conversations very differently so you cant leave it to their word against yours. The PINS can be pretty brutal with their feedback when they think residents are being unreasonable. I have done both of the above several times, the first one dozens of times. If they ignore the TRN, the LPA can go in and plant the tree on their land and pursue costs via the courts. I have never been involved in one that got that far but i am sure it does happen. Hope that clarifies? Its rarely as straight forward as they have to replace the tree so they just do it. Cheers Chris

Yeah maybe. But what about the second part of subsection 1(b) - destroyed or dies. Destroyed in contravention is already covered by subsection 1(a) with regard to deliberate action (contravention). Why repeat it? And dies obviously relates to natural occurrence, otherwise it would be a contravention covered by 1(a) - destruction. Then there is the bit about woodlands in that you only have to replace trees in woodlands if its a contravention! This to me seems to indicate that section 1(b) relates to natural occurrences. Like you said though its open to interpretation. I take your point though about nuisance. A lot of LPAs wont though, which is what I meant about can of works. Its more hassle than its worth. I'd just say the tree has been destroyed by wind so is exempt (in my opinion). I've enforced this dozens of times with no questions asked by legal but its never gone as far as court (if you can call that enforcement). Pity really, it would have been a useful test. Cheers Chris

I think the first part talks about contravention but the second talks about trees dying or being destroyed. I think that means by natural occurrence personally.

Plus 206 also covers trees that are uprooted or destroyed as well.

Yes I agree Jules. If it’s still alive then they would need to apply. But then getting into the whole nuisance can of worms, they could only abate the nuisance. If the tree is blocking an access or leaning on a house I suppose the LPA could argue that the appropriate exemption would be an immediate risk which then brings 206 back into play.

Short answer is yes. Long answer. You are required to replace the tree in accordance with section 206 of the town and country planning act 1990. It’s a legal duty unless it’s part of a woodland TPO. This is based on the fallen tree being dead. In a woodland 206 only applies if the tree was removed illegally. It’s not a notice, it’s a duty. The new tree will be automatically protected, even if it’s a different species. When you get permission the replacement is a condition, not a notice. The notice under section 207 only comes if you fail to replace the tree subject to section 206, or pursuant of a condition as described above. They can’t issue a tree replacement notice as soon as the tree fails. You have to fail to comply with the duty or condition first. Replacement notices also have to be served within 4 years. Cheers Chris

If the driveway area is more than 5sqm then you technically require planning consent even if it’s a replacement. It’s only PD if you discharge surface water onsite. Ways to do this include: 1. Discharge into a soak away onsite. 2. Grade the surface into soft landscaping on site, e.g. a shrub bed. 3. Make it porous. Remember, the whole thing has to be porous. If you fit a porous wearing course on top of MOT type 1 it doesn’t count as porous due to the fines in MOT type 1. I worked in planning as a TO for over 13 years and used to come across this all the time. I never met a driveway company that knew about the requirement. It’s just not well known in the building industry. Suppose if no one ever told them then how would they.

The evidential test for civil litigation is on the balance of probabilities, not beyond reasonable doubt so they don’t have to show 100% proof to win. Just more chance than not that the tree is implicated. I.e.. 51%, or even 50.1%. It doesn’t have to be the only cause either. They should be providing full details though which often they don’t. It would have zero impact on water uptake so not realistic. Jules has already provided the relevant technical info. Not really. TPO refusals are subject to appeal via the planning inspectorate and if they have enough info to show that the tree is implicated on the balance of probabilities then it may become exempt due to actionable nuisance. Note the word may, I would strongly advise to stay away from the exemption unless it’s accepted by the LPA or they have some solid legal advice. Not worth the hassle and could land them in trouble if they haven’t ticked all the boxes. It’s always best to get in writing from the LPA. This I agree with although it makes no difference where they are from realistically. Legal advice also if they intend to fight it. The duty holder or their insurance company. It’s the owners responsibility, not the claimant.