Tree Replacement Notice

Re: Tree Replacement Notice

Postby TO » Sat Aug 05, 2017 5:06 am

ukmicky wrote: i am very far from convinced that a replacement tree is required under section 206 for a diseased and dangerous tree, because the removal of the tree that is diseased and dangerous is not in contravention of the Tree preservation order .And for section 206 to apply it must legally be in contravention of the order.


It also makes no sense because you could just let the tree die if removal required a replacement.
S206 applies to Trees removed in contravention of the order, OR where the removal of the tree is authorised by the exceptions including the removal of a dead (replacement) tree.
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Re: Tree Replacement Notice

Postby APC » Sat Aug 05, 2017 7:53 am

alyson wrote:A 2.5m tree will cost, can you plead poverty?
Alternatively leave the tree to die a natural death.
Or plant the new tree and if it should fail to thrive, so be it.


I've just had a PINS decision back (appeal dismissed) where the appelent pleaded poverty following felling a dangerous tree under an exception. The TRN was subsequently varied and a 10-12 specified instead of a 12-14. This has been playing out for 3 years and still not got the replacement in.
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Re: Tree Replacement Notice

Postby alyson » Sat Aug 05, 2017 1:16 pm

APC wrote:
alyson wrote:A 2.5m tree will cost, can you plead poverty?
Alternatively leave the tree to die a natural death.
Or plant the new tree and if it should fail to thrive, so be it.


I've just had a PINS decision back (appeal dismissed) where the appelent pleaded poverty following felling a dangerous tree under an exception. The TRN was subsequently varied and a 10-12 specified instead of a 12-14. This has been playing out for 3 years and still not got the replacement in.


Our neighbour deliberately felled a TPO'd Lime tree (because it would have made their lawn a funny shape (new build)) and they had to replace the tree, but not in the original position . They replaced it with a £12.99 flowering cherry, now dead.
It would be good if the powers that be were consistent across the country.
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Re: Tree Replacement Notice

Postby henners » Sat Aug 05, 2017 1:27 pm

[quote="TO"]
If you rely on the exception to fell a tree then there is a duty to replace. S206 makes that quite clear.

If relying on the exception you must give 5 days notice, as soon as possible.

But that could be after the tree was felled. It would then be for the council to decide what action if any to take. If prosecute it would be for the tree owner to prove the exception applied.
[/quote]
TO,
A thorough reading of the legislation might be useful, rather than relying on your preference of how the legislation and regulations should apply.
The legislation in general, and S206 in particular makes it clear there is no requirement to either notify the LA nor is there a requirement for a replacement tree.
That LA web sites are littered with the type of advice you note, does not make it law, it is simply recommended advice to avoid the possibility of subsequent subsequent disputes and legal action by the council. However, given the owner of the tree, in this case, has a written statement saying the tree is diseased and should be felled, I suggest the LA would be stupid to consider prosecution.

As a number of folks keep saying, removal of the diseased tree is not in contravention of an Order, because the Order itself provides the exemption in the case of removal where the tree is diseased.
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Re: Tree Replacement Notice

Postby TO » Sat Aug 05, 2017 1:54 pm

S206 is quite clear. If you remove a tree by virtue of the exceptions the land owner has a DUTY to plant a replacement. A careful reading of the Act makes this clear. Which bit of 'it shall be the duty of the land owner to plant a replacement tree' is not clear.

Regards giving notice. The 5 day notice actually relates to felling dead trees not dangerous trees. In respect of dangerous trees you must give notice as soon as practical after the works become necessary.

As well as carefully to reading s206 TCPA I recommend a careful reading of the 2012 tree regs. And the Government planning guidance on TPO'd trees.
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Re: Tree Replacement Notice

Postby APC » Sat Aug 05, 2017 2:08 pm

The relevant act says:
206 Replacement of trees.
(1)If any tree in respect of which a tree preservation order is for the time being in force—
(a)is removed, uprooted or destroyed in contravention of the order, or
(b)except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a time when its cutting down or uprooting is authorised only by virtue of section 198(6)(a),it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can


Henners, ignore 206 1 a, apart from the word "or".
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Re: Tree Replacement Notice

Postby mugwump » Sat Aug 05, 2017 4:23 pm

b only applies to "a tree to which the order applies as part of a woodland" not a stand alone tree
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Re: Tree Replacement Notice

Postby TO » Sat Aug 05, 2017 5:50 pm

Read what the TCPA says. EXCEPT in the case of a tree to which the order applies is part of a woodland...

There is no exception allowing the felling of diseased trees. Only dead trees and trees which represent an immediate risk of serious harm.

Read the legislation, primary and secondary as well as the guidance.
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Re: Tree Replacement Notice

Postby ukmicky » Sat Aug 05, 2017 11:23 pm

TO and APC are correct on this one Henners.
Advice given is not legally qualified and you are advised to gain a professional opinion
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