Tree Replacement Notice

Tree Replacement Notice

Postby astreix » Mon Jul 31, 2017 2:40 pm

I have a lovely copper beech tree, protected by a TPO in my back garden. The tree has unfortunately got a fungus (meripilius). I had it inspected by a Tree Consultant (member of the Arboricultural Association) and they have recommended that the tree needs to be removed as soon as possible but in any case within the next 3 months.

The tree surgeon I appointed to carry out the removal has made an application to the council for removal of the TPO. The council is saying they will only remove the TPO if I agree to replacing the tree. I'm a bit perplexed as to how can the council even consider refusing permission given the very clear recommendation of the tree consultant? The tree is surrounded by properties on all sides, so if the worst were to happen it is guaranteed that the tree will cause massive damage to either mine or one of the neighbors properties. Unless there is some treatment which will save the tree I cannot see any option but to get the tree removed.

i never wanted to remove the current tree in the first place, but given circumstances have to pay for that. I would really like to avoid the cost of putting in a new tree.

Do I have any options to resist the council demand?

Any suggestions/inputs gratefully received.
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Re: Tree Replacement Notice

Postby MacadamB53 » Mon Jul 31, 2017 7:11 pm

Hi astreix,

the relevant legislation is The Town and Country Planning (Tree Preservation)(England) Regulations 2012.

the bits I think are relevant to your circumstances:

14.—(1) Nothing in regulation 13 shall prevent
(a) the cutting down, topping, lopping or uprooting of a tree
(i) which is dead;
(ii) in compliance with any obligation imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance

(c) the cutting down, uprooting, topping or lopping of a tree, to the extent that such works are urgently necessary to remove an immediate risk of serious harm, or to such other extent as agreed in writing by the authority prior to the works being undertaken;


14(a)(ii) allows for the tree to be removed without consent from the council if the removal can be shown to be necessary to prevent/abate a nuisance (avoid the tree causing actual or imminently anticipated damage to someone else's property).

14(c) allows for the tree to be removed without consent from the council if the removal can be shown to be necessary to remove an immediate risk of harm (avoid imminent danger to eg human life).

evidence the removal was necessary will be the decider - you must show that no other option could have achieved the same (or have expert opinion stating as much).

recommend you discuss these with your TO.

Kind regards, Mac
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Re: Tree Replacement Notice

Postby astreix » Mon Jul 31, 2017 10:51 pm

MacadamB53 wrote:Hi astreix,

the relevant legislation is The Town and Country Planning (Tree Preservation)(England) Regulations 2012.

the bits I think are relevant to your circumstances:

14.—(1) Nothing in regulation 13 shall prevent
(a) the cutting down, topping, lopping or uprooting of a tree
(i) which is dead;
(ii) in compliance with any obligation imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance

(c) the cutting down, uprooting, topping or lopping of a tree, to the extent that such works are urgently necessary to remove an immediate risk of serious harm, or to such other extent as agreed in writing by the authority prior to the works being undertaken;


14(a)(ii) allows for the tree to be removed without consent from the council if the removal can be shown to be necessary to prevent/abate a nuisance (avoid the tree causing actual or imminently anticipated damage to someone else's property).

14(c) allows for the tree to be removed without consent from the council if the removal can be shown to be necessary to remove an immediate risk of harm (avoid imminent danger to eg human life).

evidence the removal was necessary will be the decider - you must show that no other option could have achieved the same (or have expert opinion stating as much).

recommend you discuss these with your TO.

Kind regards, Mac


Many thanks Mac, much appreciated. I've pointed this out to the Tree Surgeon who is liasing with the council. Fingers crossed
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Re: Tree Replacement Notice

Postby ukmicky » Tue Aug 01, 2017 1:57 am

I could be wrong but I don't think you should be applying for permission ,because if they grant permission they can then apply conditions which obviously you don't want .


I think what you should be doing is simply giving them 5 days notice that the tree will be removed as its become dangerous due to disease. Its then up to them to pay a visit and inspect the tree to determine if the diagnosis is correct ,which if it is will allow you to remove it under the exemption .


Where is TO or Treeman when you need them.
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Re: Tree Replacement Notice

Postby astreix » Wed Aug 02, 2017 3:56 pm

ukmicky wrote:I could be wrong but I don't think you should be applying for permission ,because if they grant permission they can then apply conditions which obviously you don't want .


I think what you should be doing is simply giving them 5 days notice that the tree will be removed as its become dangerous due to disease. Its then up to them to pay a visit and inspect the tree to determine if the diagnosis is correct ,which if it is will allow you to remove it under the exemption .


Where is TO or Treeman when you need them.


Thanks Micky. I discussed this with the tree surgeon and he says the 5 day notice can be used where the tree is at immediate risk of failure. In my case the consultant report says tree to be removed "as soon as possible but in any case within the next 3 months" - hence that route cannot be used. According to the TS, even if we did go down that route, the council can still after removal of tree slap in a replacement notice - so it wouldn't solve the problem.

He is suggesting that I agree to something like a hornbeam put in place (copper beach cannot be put in due to fungus in the soil) which will take many years to grow substantially.
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Re: Tree Replacement Notice

Postby APC » Wed Aug 02, 2017 9:55 pm

If you fell it as an exception, you have a duty to replant.

If you fell under a TPO application, the LPA should condition replanting.

They are unlikely to serve a TRN unless you fail to comply with either the duty or condition.

You can apply for permission to do away with your duty to replant or appeal a condition to replant. You can also appeal a TRN.

If you ignore a TRN, the LPA could enter your land and plant the tree for you and bill you for it (or apply a land charge).

I wouldn't worry about Meripilus affecting a new tree; if you plant it properly and keep it watered, it'll be fine. Just remember that hornbeam can grow quite broad canopies in comparison with their height. If you have a problem with space, consider asking the tree officer if they would consider allowing a different species although don't waste your time asking for cherry or apple.
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Re: Tree Replacement Notice

Postby jdfi » Wed Aug 02, 2017 11:15 pm

What is the smallest size bonsai tree you could get away with?
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Re: Tree Replacement Notice

Postby ukmicky » Wed Aug 02, 2017 11:58 pm

APC wrote:If you fell it as an exception, you have a duty to replant.

If you fell under a TPO application, the LPA should condition replanting.

They are unlikely to serve a TRN unless you fail to comply with either the duty or condition.

You can apply for permission to do away with your duty to replant or appeal a condition to replant. You can also appeal a TRN.

If you ignore a TRN, the LPA could enter your land and plant the tree for you and bill you for it (or apply a land charge).

I wouldn't worry about Meripilus affecting a new tree; if you plant it properly and keep it watered, it'll be fine. Just remember that hornbeam can grow quite broad canopies in comparison with their height. If you have a problem with space, consider asking the tree officer if they would consider allowing a different species although don't waste your time asking for cherry or apple.



APC

if you fell a tree in contravention of a TPO there is a duty to replace but using the exception your not felling in contravention of a TPO .

The law says under section 198


section 198 -Power to make tree preservation orders.

Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply—
(a)

to the cutting down, uprooting, topping or lopping of trees which are dying or dead or have become dangerous,
.
If no such order (TPO) applies to a dangerous tree then Section 206 The replacement of a tree cant apply.

Can you show me a link to the legislation or case law that says there is a duty to replant if the exception is used to fell .Section 206 doesn't say it and I looked for something after I read your comments but I cant anything in the legislation(I probably looked in the wrong place)
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Re: Tree Replacement Notice

Postby TO » Fri Aug 04, 2017 11:30 am

S206 (1)(b) TCPA is the bit about replacement planting when relying on the exception to fell an imminently dangerous tree. It's worth noting that a tree planted as a replacement for one removed under the exception is automatically protected by the TPO. One planted by way of a condition isn't.
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Re: Tree Replacement Notice

Postby henners » Fri Aug 04, 2017 2:13 pm

[quote="TO"]S206 (1)(b) TCPA is the bit about replacement planting when relying on the exception to fell an imminently dangerous tree. It's worth noting that a tree planted as a replacement for one removed under the exception is automatically protected by the TPO. One planted by way of a condition isn't.[/quote]
TO,
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.

TO, the point is that the diseased tree would not have been removed in contravention of a TPO - the tree would have been removed under the exemptions of section 198, therefore it is not in contravention.
If you apply to the LA, it seems to me, you are conceding that the tree does not fall within the exemptions therefore the LA may indeed demand a replacement tree. That's how I see it.

If the owner of the tree has a report from a suitably qualified tree surgeon saying in his opinion the tree needs to be removed because it is diseased, I would think the LA has two choices, it challenges the written opinion or it allows the tree to be removed. If it challenges the opinion, and there is a delay in the trees removal, any damage caused by the tree in a dead, dying, or diseased state will the LA responsibility. That's how I see it.
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Re: Tree Replacement Notice

Postby astreix » Fri Aug 04, 2017 6:12 pm

jdfi wrote:What is the smallest size bonsai tree you could get away with?


:) I tried that. Initially I had suggested a japanese maple as I had it at my old house and even though it was ancient it never grew anywhere close to the size of a beech. The TS says council won't accept it. Minimum would have to be a 2.5m Hornbeam. My knowledge of trees is very rudimentary, so not sure if that is a good option
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Re: Tree Replacement Notice

Postby astreix » Fri Aug 04, 2017 6:21 pm

henners wrote:
TO wrote:S206 (1)(b) TCPA is the bit about replacement planting when relying on the exception to fell an imminently dangerous tree. It's worth noting that a tree planted as a replacement for one removed under the exception is automatically protected by the TPO. One planted by way of a condition isn't.

TO,
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.

TO, the point is that the diseased tree would not have been removed in contravention of a TPO - the tree would have been removed under the exemptions of section 198, therefore it is not in contravention.
If you apply to the LA, it seems to me, you are conceding that the tree does not fall within the exemptions therefore the LA may indeed demand a replacement tree. That's how I see it.

If the owner of the tree has a report from a suitably qualified tree surgeon saying in his opinion the tree needs to be removed because it is diseased, I would think the LA has two choices, it challenges the written opinion or it allows the tree to be removed. If it challenges the opinion, and there is a delay in the trees removal, any damage caused by the tree in a dead, dying, or diseased state will the LA responsibility. That's how I see it.


TS has had an update from the council - they will in any case grant permission to remove the tree given it is dangerous. However they will put in a condition saying it will have to be replaced by a substantial tree. If I don't comply with it, they can apparently take legal action (by arguing against putting in a new tree the TS says the Tree officer is now alert to the fact I didn't want a tree and so every chance they will check by March next year to verify compliance) The idea seems to be that the replacement tree should grow to a similar size as the current beech (around 18m high and around 17m wide canopy) eventually.... Also the TS says the new tree will have the same protection as the existing one.
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Re: Tree Replacement Notice

Postby alyson » Fri Aug 04, 2017 7:17 pm

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.
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Re: Tree Replacement Notice

Postby ukmicky » Fri Aug 04, 2017 9:50 pm

If the tree is dying or dangerous permission is not required so I myself would not be asking for permission all I would be doing is given them is 5 days notice


I don't hug them but I'm not someone who believes we should be going around and removing our trees unless there is a good reason. Despite my love of trees 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.

The problem with this one is much of the info on this subject is from councils which is a one sided view. I'm going to do some research to see if there have been any legal cases that have touch on this subject.
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Re: Tree Replacement Notice

Postby TO » Sat Aug 05, 2017 3:35 am

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.

If the exception did apply the council would not have to, I would say, could not, condition your 5 day notice requiring you to plant a tree. You've served notice not applied. However, s206 TCPA places a duty on the land owner to replant. If you fail to replant the council could serve a TRN.

As previously mentioned, the replacement tree is automatically protected. If it dies you would have to serve notice on the council to remove it, and s206 applies so another replacement will be required.
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