Chris at eden

I agree with the other comments. It’s too close to the house at 2m. But from a TPO perspective. Visual amenity - it currently has zero looking at the pics. It may in time grow to have some visibility but if so it will probably impact negatively on the house. Not just risk of damage but in terms of dominance. Can’t comment on risk of damage as not enough info but as a minimum the canopy will be rubbing against the building. Expediency / threat - minimal. The tree is 2m from the boundary meaning that the neighbour can’t fell it as that would be trespass and criminal damage. They can cut the overhanging branches to clear the house but that is reasonable and they would be able to do it to abate / prevent the nuisance under exemption even if it was TPOd. The only issue I can potentially see is if they cut off the roots that are trespassing again under exemption and if this destabilises the tree. If I was the tree officer (and I did that job for 17 years), I wouldn’t TPO the tree either. I don’t think you will get far with this if you make a complaint. It will be pretty easy for the council to defend. Not the news you want but that is my opinion. Jules (another member on here) may have something to add. He’s pretty good with the legal stuff so keep a look out. Cheers Chris Note. The above is based on very limited info as I haven’t visited the site so you should not take this as professional advice. Your own appointed Arb should be able to give you better site specific advice on the tree assuming they are competent to do so.

Visibility and threat are two different things. To warrant a TPO the LPA should meet two legal tests. Amenity - visible to the public, and it looks nice Expediency - tree under threat. If these two tests are not met they shouldn’t really TPO the tree. The amenity can be current or future so the whole, the tree is small may not stack up. If it can grow big enough to be visible then it may pass the test. In general, if the removal or damage of the tree would have a significant negative on the local environment, the LPA should consider making a TPO. There is no appeal as such in this situation. You would have to follow the councils complaints procedure if you are not happy with the service. Pics and info on the threat would be useful.

The regs say evidence needed for structural damage, not just subsidence. Also needed for works that relate to health and safety. Its in the regs and on the one app, full compliance with which is also listed in the regs. I agree though, the LPA must justify refusal. They must address points raised in the app. But, it can be as simple as saying that there is no appropriate supporting evidence. when the PINS do the appeals they make no attempt to assess risk. They usually say something like, in the absence of supporting evidence there is nothing to suggest that this tree is any more hazardous than any other tree. The other thing they often say is that residents should consider the impact of trees before buying a house. I’m alway surprised how blunt they are, I would never say something like that either as a TO or a consultant.

I agree. I don’t get where the op is coming from. It’s not difficult to do an app. Everyone has told him to just apply and he has come back saying all this talk hasn’t answered my question, what is the process to get it lifted. If he wants the TPO revoked the TO is going to assume he wants to fell it and that in itself justifies the expediency of the TPO. Assuming it looks nice and can be viewed that would make it suitable for TPO protection.

When you say VTA, did you get a report or was it just a conversation on site?

Its the amount of work you can do to achieve the objective while not damaging the tree. It’s not removing entire limbs when reducing the ends would do. Tree owners often have expectations that are not realistic when it comes to TPOs. I saw an application recently that was to reduce the height of a tree by half because the low branch were catching the roof of the cars when entering the drive. That isn’t reasonable. Lifting the low branches to 4m would be. cheers Chris

The word is revoke and it isn’t something you can do. The LPA may decide to revoke a TPO but only with good reason. Usually that they have made a new TPO to protect the trees as the area has changed. For example, an old TPO could show trees in a field which has now been built on so the trees are on a housing estate. You would make a new TPO showing up to date plans and then revoke the old one. They are not going to revoke one to save people time doing applications.

The time limit for TPOs consent validity is automatic in the 2012 regs. 2 years. They no longer have to set a condition for validity periods. But it can be varied by condition. For sample if it’s a management plan running longer than 2 years.

That is is the old blue book. It’s out of date. It’s doesn’t take into account the 2012 regs. It includes stuff like reg 3 notices, exemptions, etc. There is an online version now. Just Google TPO guidance and go for the 2012 webpage. There is also a short version that gives a brief overview. Again titled 2012.

Is it a job or just a one off survey of some trees? I am guessing you don’t have tree surveyors locally?

It’s policy. It’s in their local plan which has been signed off by the cabinet I think. Plus S197 says that you should make provision for adequate tree planting via condition, that’s the law bit. It doesn’t say how much. The England tree strategy published 2021 aim to increase canopy cover, not as ambitious as 30% but its there. Climate change mitigation. It’s not like they have plucked it out of thin air with no justification. Their TO knows his stuff. He’s probably ahead of the game with the 30% target but that’s not a bad thing. I don’t think it’s a slam dunk that you would win the appeal and I have never met a developer that wants to go to appeal to avoid planting trees. They don’t want to be sitting around for best part of a year for the appeal decision with no guarantee they will win.

It’s standard practice to check aerial photos and compare now with previous tree cover. Plus, as a TO you get calls everyday once the chainsaws start up.

Its surprisingly rare. It does happen but most folk play ball. I worked as a planning TO for over 12 years and it hardly ever happened. Even when you turned around saying we need a survey and AIA but there is no TPO they usually just got one instead of felling the trees. Remember trees and landscape is a material consideration so if you fell all the trees there is nothing to prevent the LPA from asking for a mega landscape scheme to offset the loss and this will impact on layout. I know one LPA that asks for evidence that existing and proposed trees will deliver 30% canopy cover for the site within 50 years. That’s a lot easier if you keep the big trees and work around them.

I am guessing he used one of the big multi dis companies. I know a lad who used to work for one of the big players. Said they were charging £2,000 for a survey and TCP with about 8 trees. Mental.

This I agree with, fix problems, not pretend they don’t exist.

And make recommendations. The risk assessment is the bit where the client gets to decide on risk tolerance. If my opinion is that the tree needs to be felled that is what I am going to say. If the client asked I may give a second recommendation and evaluate both but I would still say if felling is my preferred option. While expert advisors duty is to their client all of these reports have the potential to end up in court at which point you become an expert witness and your duty is to the court. I wouldn’t much fancy saying I didn’t recommend felling as the client asked me not to! Or even worse, I did but the client asked me to take it out. With impact assessments I am always objective. I don’t say there is no impact if there clearly is, I identify it and look at mitigation. It’s not rocket science.

It’s not yet clear why the tree fell! I think it is!

Yes, no problem. I can't do this evening though, I've just been hit with a last minute deadline for a planning app so will be doing the late shift!!! Feel free to give me a call tomorrow though, happy to discuss. I think I am too far away to represent you though and I am not really taking on new clients at the moment as work has gone a bit mad. Just so you know. If I don't answer just leave a message and I will call back. Number is on the below link t website. Regards Chris

Hi A couple of points to clarify for you: 1) You are not applying to have the TPO revoked, that isn't a function of the planning inspectorate (PINS). You are applying to fell the tree, there is a difference. The PINS will write to the LPA and ask the TO for all the documents as they were submitted and give them a questionnaire to fill out. One of the questions will be if the TO would like the inspector to apply any conditions in the event that they support the appeal. If the TO says yes, tree replacement, the inspector will probably include a replacement condition unless they think its inappropriate. Even if the TO doesn't ask for it the inspector may apply one anyway if they feel its appropriate. I have done dozens of these questionnaires, they always ask. 2) One of the other things the letter from the PINS will say is that if you and the LPA can resolve the issue before they attend, you should let them know so they can cancel the visit. You are applying to fell the tree, the tree has now been felled by the wind. I don't think the inspector will be particularly impressed of the rock up and the tree has already gone. Cheers Chris

I’d call it dead and submit a five day notice and see what happens. If the TO wants to argue and insist on a new app he must have nowt better to do.

Have you advised the PINS? Can’t se why they would come out now. Even if they do it won’t be until mid summer in all likelihood.

As you know I was a planning TO for 12 years and I wouldn’t. I would take it that the tree has been destroyed (it’s amenity if not the whole thing) and allow them to remove under exemption and then replace. I can only speak for myself but I think that approach would be sensible. Some TOs will be the same, some may differ. It isn’t like you can refuse it on app and have a chance of winning the appeal so what’s the point in insisting on an app. That is the point though isn’t it. If they insist on an app and condition replacement, the applicant can appeal the condition. As it is, if they allow removal as it’s been destroyed the owner will be legally required to replace it in accordance with S.206. No option to appeal. Ok if they know the regs they could ignore the 206 and then appeal the TRN when that turns up. As above, where is the amenity for a horizontal tree that prevents the use of the garden, or the securing of the boundary. And, it’s not a condition. 206 is a requirement. That’s my view anyway.

Yeah. That is pretty much what I thought the situation was. Just checking I hadn’t misunderstood.

Now I am really confused. I assumed he must have submitted an application to fell the tree after the TPO was confirmed. When he posted last year he was advised to get a report. This was after the TPO was served. He went and got one and submitted it apparently. From what I remember the original complaint was that the LPA confirmed it without telling him so clearly the the TPO was made and confirmed before the report was sent t the council. In which case he must have submitted an app surely? He couldn’t have submitted a second 211 notice once the tree was TPO protected, it would have to be an app. Plus, how would he get the PINS to validate an appeal against a 211 notice? The report can’t be about the original 211 as the TPO had already been confirmed.

Tree owners are not required to cut back the overhang. They are required to ensure they do not create an unreasonable level of risk so it depends on what your concerns are. If the overhang is damaging your roof, or their is a risk of injury you may have a case. If it’s leaf fall and blocked light then they probably won’t deal with it as there is no risk of a claim.