Planning granted, yet tree officer refuses tree felling??

Planning granted, yet tree officer refuses tree felling??

Postby Caveman » Wed Jun 03, 2015 11:30 am

I have a council owned public footpath running along the side of my house, on which there are two large field maples growing on the very edge of the border closest to my land. The trees are 'trespassing' by way of air (crown) and land (roots), to the extent that almost 50% of each tree is on my land in some way. Both trees are heavily obscuring an existing garage and its roof that is on the edge of my property, immediately under these trees.

Last week I had planning permission granted to build a 2 storey extension immediately under the line of these two trees. Neither of the trees are protected and we are not in a conservation area. I approached the tree officer of the council, asking if we could get permission to fell the trees, and I was told that I could not remove them as there are considered of amenity value to the public etc. I was also advised that if I cut the trees back to the extent required to undertake the building, including removing the roots on my land, I am likely to destabilise the trees and they could die/fall over. He suggested that I would be liable.

Legally, in granting planning permission, the planning officer has to take a duty of care to consider any trees that might be implicated in the build, and under current legislation, even if a tree has a TPO, if planning permission is granted you have the right to carry out any works required to facilitate the building.

So my questions are:

1. Can I legally cut down the trees with no legal recourse if needed?
2. If I remove the canopy on one side of both trees (that which overhangs my land), and remove all the roots on my land (rendering the trees unsafe/unstable), who is liable if something were to happen as a result of the trees falling down, causing damage or injury?

Help much appreciated!

Martin.
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 11:44 am

Hi Caveman,

I approached the tree officer of the council, asking if we could get permission to fell the trees, and I was told that I could not remove them as there are considered of amenity value to the public etc.

cue an emergency TPO.

did your approved planning app identify the trees and include their removal as part of the proposed development?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 11:53 am

Hi Mac,

Thx for your reply.

The planning application doe not explicitly mention the trees, however I spoke to the planning officer, and she confirmed that the she did consider the trees as part of her assessment, and as the trees are neither under TPO or in a conservation area, so did not deem them important.

The law states that an exception exists where a tree can be worked on or felled, even if a TPO on it exists, if a planning application has been granted, and the tree is preventing the work from going ahead. So, even if an emergency TPO were placed on these trees, the law would exempt them from protection as planning was granted.

Just not sure where I stand??

M.
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 12:28 pm

Hi M,

the tree is preventing the work from going ahead

is this the case?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 12:37 pm

Hi Mac,

Yes, the roots of the trees and the overhanging branches are in the way of the new foundations and the proposed new extension. In other words, half the main body of the trees (crowns) are located where the proposed new building will be.

M.
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 1:21 pm

Hi M,

under current legislation, even if a tree has a TPO, if planning permission is granted you have the right to carry out any works required to facilitate the building.

which piece of legislation would that be?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 2:05 pm

The Town and Country Planning (Tree Preservation)(England) Regulations 2012

Exceptions

14.—(1) Nothing in regulation 13 shall prevent—

(a)the cutting down, topping, lopping or uprooting of a tree—

(vii)so far as such work is necessary to implement a planning permission (other than an outline planning permission or, without prejudice to paragraph (iii)(cc), a permission granted by or under the Town and Country Planning (General Permitted Development) Order 1995) granted on an application under Part III of the Town and Country Planning Act 1990 (control over development), or deemed to have been granted (whether for the purposes of that Part or otherwise)
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 3:07 pm

Hi M,

but the trees are not TPOed - see what you've done there?

the legislation says you don't need to obtain the consent that would ordinarily be required to work on a TPOed tree.

what is more, this does not grant you permission to do as you please because, whether TPOed or not, if you don't own the trees you'd still need permission from the owner.

the owner - the LA - have not given their permission... ...yet.

maybe you could offer to plant some replacements?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 3:20 pm

That's precisely my point here Mac! :D

As the legislation refers to the highest category of trees, those that have been specially designated as 'important', then one can reasonably expect that 'unimportant' trees, will at most be subject to the same conditions. Furthermore, the legislation does not refer to ownership of the tree in its text, so it's unclear if the legislation only refers to trees on your land...

If planning consent gives me the right to cut down a tree that has been protected, it's fair to assume with any logic and common sense that an unprotected tree will have even fewer rights! No?

At the same time, if a tree can only exist by 'trespassing' significantly on my land, then it is fair to surmise that the tree should be removed by the owner.
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 3:27 pm

Hi M,

If planning consent gives me the right to cut down a tree that has been protected

but it doesn't!

it simply means you have, by implication, been given the consent you would have needed to obtain from the LA.

you do not own the trees and so need the owners permission.
this would be the case if the trees had TPOs.

a TPO does not mean the LA own the tree - it creates the need for an additional permission so that you can't just ask the owner

think of it like this:

no TPO
man1: "can I cut your tree down"
man2: "sure"

TPO
man1: "can I cut your tree down"
man2: "sure"
LA:"whoa there matey - you also need our permission"

are you getting it yet?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 3:33 pm

The LA who granted the planning, and the tree owners are one in the same, i.e. the planning consent was granted by the owner of the trees. So from that, one can reasonably infer that as they have granted planning, they are also granting permission to carry our whatever works are necessary on the trees!

If the granter of planning and the tree owner were not one-in-the-same, then I could understand needing to obtain separate owner permission. Also, if the building works were subject to tree owner permission, this would have been sought before planning was granted. But as the planning permission and tree owner are the same person, then there's no reason to ask for permission twice, once it's been granted via the planning permission, no?

Or am I missing something?
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby arsie » Wed Jun 03, 2015 4:02 pm

Mac, I think you are saying that 'man2' here is the local tree officer, not planning? The tree officer is saying to the OP, 'no, you cannot chop my trees down: amenity value to the public'.

Caveman, planning permission does not 'trump' the owner's permission to remove trees. Gaining planning permission does not give you permission over other peoples trees. Trees that you own, not subject to TPOs and as long as you don't live in a Conservation Area, you may chop down.

If you had pointed out the trees at planning application time the tree officer would have been called in to comment before permission was granted. Surely your site plan submitted with your planning application showed the trees? Local authorities have different departments that are responsible for different things and planning do involve them in the process. It usually shows on their planning web site pages for each application the other departments' comments.

Did you not realise when you planned this extension you needed to remove someone else's trees?
arsie
 
Posts: 1955
Joined: Wed Apr 21, 2010 9:13 am
Location: Norfolk

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 4:25 pm

The planning officer visited the site and investigated the classification of the trees before making her decision. The trees were drawn on the plans, and were declared as being within falling distance of the proposed construction. Whether the council planning officer's decision acts as sufficient permission, I do not know, but it is her responsibility to check with the tree officer if there is any doubt.

Surely she is speaking unilaterally on behalf of the entire council body when granting her permission, and it is her responsibility to take due care that everything is considered before granting permission?? A planning decision is final. I can't be held accountable if she didn't do her job properly and check if the trees would be an issue??
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Re: Planning granted, yet tree officer refuses tree felling?

Postby MacadamB53 » Wed Jun 03, 2015 4:39 pm

Hi M,

am I missing something?

seems so.

you've asked the tree owners if you can fell their trees - they've said "no".
you've only asked them the one time - shortly after gaining planning permission to build an extension which you now say must involve the felling of said trees.

you seem to be suggesting the planning officer - charged by the relevant Secretary of State to handle your planning application on his behalf (regardless of whether the LA own land nearby) - would have telepathically know the trees would need felling even though the application you'd put in front of them for consideration made no mention of this.

Kind regards, Mac
edit: we're discussing why planning permission does not give you the right to chop the trees, you need to know how to get permission...
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Planning granted, yet tree officer refuses tree felling?

Postby Caveman » Wed Jun 03, 2015 6:24 pm

Thanks Mac, fair doos.

So how do I get permission?

Thanks,

Mart.
Caveman
 
Posts: 11
Joined: Tue Jun 02, 2015 11:28 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Trees

Who is online

Users browsing this forum: Google Adsense [Bot] and 2 guests