Tree Protection Order

Question

Over 12 months ago I asked a Parish Council for consent to do some pruning works on a large oak tree tree in unregistered land in a ditch forming the boundary between mine and their land. The proposed works consisted of reducing the crown and the tree is behind next doors house and faces a recreation ground owned by the PC. The PC included the tree in a previous tree survey they commissioned. When asking for permission I also pointed out that technically I needed to speak to the owner of the tree to gain such permission but that I had not been able to trace said owner. As the land was unregistered.  Long story short the council said that no works would be carried out until they had checked with there solicitor if they owned the tree. Low and behold a year later they have received a report from a solicitor claiming that they own the land in which the tree sits and the rest of the ditch and that an error was made when registering the title. They now propose to apply for title rectification. They have also gone back on their promise to discuss any works on the tree that is despite the involvement of my local MP. They now propose to apply for a TPO for all of the trees along the ditch including the tree in question.  I think they are including all of the trees to cover the fact they they really want to protect the tree I have asked for permission to do work on.

So my question is this. Looking at the requirements for a TPO I think that from the frontal view of the tree ie if viewing would score high on the amenity requirement. However the amenity requirement suggests that it would be unusual for a tree to be given a TPO on amenity grounds only. Also if it was under a management program as purportedly apllies to this tree.
Therefore I can only assume that the PC are going rely on the expediency requirement ie that the tree is is danger of being pruned(by me). However I don’t know if the Council are just going to make a blanket application for all of the trees in one go or if they are going to make a case for each tree. However is it likely  that a council would consider that the tree is in danger because a Parishioner had previous sought consent for works on the tree?  Is this a valid reason as I would not be pruning the tree without consent which has been refused anyway and the tree is not in land that would be developed. So does anyone know if it is likely that a TPO would be granted in theses circumstances? Sorry I know this is more planning but I wondered if anyone could help?
Thanks for looking

Answer 1

It is uncommon that a large Oak tree would require pruning for arboricultural reasons - not uncommon that people convince themselves that a tree 'needs' pruning.  Trees very rarely need pruning to achieve optimal structural and biomechanical balance - they have been doing it perfectly well for themselves for millennia.

It is the conflict of people and trees which creates the human belief that a tree needs human intervention - it doesn't.

I suspect, from what you describe, that what you want to do is reduce (what you believe to be) an overbearing or excessive crown spread?  This will provide no benefit to the tree which has optimised to the prevailing conditions.  Done sympathetically the adverse impact may be minimised but be in no doubt, this is not to the benefit of the tree it is to the benefit of the human.  Not at all uncommon for a short term 'gain' to result in a mid - long term loss when mature tree pruning is executed by inadequately trained and informed practitioners - very easy to make a complete ass of it and make matters worse for both the tree and the human when the tree reacts to loss of canopy.

In the situation you describe there are several options depending upon the current situation.

Has the PC had the land ownership record adjusted Yes or No?  If No, they don't own the tree, don't bother talking to them about tree pruning since they don't own the tree.  Talk to the person that does own the tree or take a unilateral action if the land is not in registered ownership.

If PC does own the tree don't 'fear' a TPO being initiated.  TPOs do not preclude works to trees with a TPO they simply require a properly considered justification to be submitted to the LPA in support of a planning application.  If the proposals are sound, reasonable and necessary, the work schedule will be approved.  If the works are unreasonable, unjustifiable or unsound they will be refused.

TPOs are meant to protect public visual amenity but that is only 1 of several fundamental considerations in the decision making process.  Don't 'fear' a TPO, they are for the greater good and simply require sound arboricultural justification for sensible works.  There are also exemptions where consent of the LPA is NOT required for works to a tree subject to a TPO and suitably qualified and experienced arborists will be able to inform you if these apply. 

    

Comments

Thank you for your very considered and informative response.
Have the  PC had the land ownership record adjusted Yes or No?  If No, they don't own the tree, don't bother talking to them about tree pruning since they don't own the tree.  Talk to the person that does own the tree or take a unilateral action if the land is not in registered ownership.

The PC Solicitor is of the view that the PC is owned by the PC by virtue of the deed of conveyance for the original purchase of the land in the 1930s. The Solicitor provided me with a plan that accompanied the original transfer of the land to the PC. The solicitor asserts that the ditch in which the tree sits is shaded in red and is with the ownership of the PC. However the tree is in an area a ditch that forms the boundary between the two parcels of land and the boundary has not been determined ie it’s subject to the general boundary rule. Also I have been told that in this case the hedge and ditch rule is a rebuttable proposition as the land was in common ownership when the boundary was drawn and the ditch had already been dug before that time. The title was registered in 2002 but this did not include the ditch. The Solicitor says this was due to an error by the Solicitor back in 2002. So the simple answer to your question is no the land is not registered but will be if the Land Registry agree to title rectification the PC have told me they are the landowner.

I am  at the stage where now as pppsed to the crown works I just want to get the considerable overhang cut back on the tree,but I am worried this would add weight to the PC application for a TPO. Ie is the tree under threat.  In itself the TPO does not worry me for the reasons you state but It galls me that the PC only appear to be doing this because they either wrongfully  assume the tree is under threat from me or are using this as an excuse to get a TPO. Also I am a bit worried if when and if the TPO is granted it will be difficult to get permission to cut the overhang back.

Thanks again and any further comment appreciated.

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Am I right in thinking that the tree canopy currently crosses the vertical line of your boundary already?

If yes, and if there is currently no TPO, you don’t need the tree owners consent to cut back any branch or root which crosses the boundary into your curtilage.
Even if there IS a TPO there are still circumstances where you need neither the tree owner nor the LPA consent to cut back to the boundary.

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Yes it’s crossing the boundary as you say. Thank you for all of your the information you have provided. Very helpful and much appreciated.

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Prior to a provisional TPO being initiated (if that even happens) you are empowered to remove any part of a tree which encroached across a boundary.
There are a couple of caveats however.
In common law you are entitled to initiate an abatement of the encroachment but the entitlement is qualified by the responsibility to do least mischief (if there is an easier or less mischievous way then you should take it)

Any arisings from the abatement remain the property of the tree owner so branches removed should be offered back or placed reasonably back across the boundary.
Works to abate a nuisance should not be so severe as to unreasonably deprive the tree owner of their tree (such brutal pruning as may cause the tree to terminally decline.)

Apart from that, if no TPO (or provisional TPO is yet in force, you may cut away any part (root or branch) which crosses your boundary.
If reality - a straight line is never going to be aesthetically pleasing nor will it allow ‘target pruning’ to a suitable growth point so the tree owner (where known) is almost always best to allow a neighbour reasonable access and pruning so as to avoid them taking their lawful right to cut back to the boundary.
Best of all parties agree but if that is impossible know your onions.

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I’m intrigued as to how the TPO will play out as to how the PC will demonstrate that the trees are in danger under the expediency requirement, but I suppose myself and other residents will soon find out! What bemuses me about the PC with whom I’m dealing is that when you ask why they have taken a decision Ie the TPO, they don’t give a reason but just say that is that has what has been decided.
It’s quite clear that I’m the only person who has asked to dare for permission to do tree works and it’s quite clear that we’re it not for that fact there would be no TPO application.

I can post this separately but also do you know if a PC is allowed to show a residents full address in PC minutes?
Thanks again