Restrictive convenant - tree removal

Fluffy_badger

We have just moved into a property which has a large tree in the front garden. 

We are looking to do an extension in the new year which will require the tree to be removed. In our deeds there is a restrictive covenant which says: 

“No trees or shrubs now standing or afterwards planted by the Transferor on the land hereby transferred pursuant to the landscaping scheme required by the Local Authority shall be cut down or in any way interfered with without the prior written consent of the Local Authority” 

The tree in question is in the original plans so is covered by this convenant. 

What are the implications to us if we were to remove prior to submitting planning permission for an extension without asking the local authority? 

We are not covered by a TPO or in a conservation area. 

Currently it is making our driveway quite narrow and doesn’t allow us to park two cars next to each other. So we are considering cutting it down well before submitting for planning approval, as more of a fix for parking issues rather than relating to the extension. 

Are there any alternative ways round this!? 

Thanks in advance! 

silvercar

So the clause requires you to have written consent to cut down the tree. I don't know who in the LA you would ask. You could ask the tree/ environment people who would probably say there is no TPO, so not their concern. You could include it as part of your planning application - either explicitly or not. Arguably if you receive planning permission then you have consent. 

In terms of what happens if you do it without consent, the LA could tell you that you have breached the covenant and require you to plant a tree in replacement. At which point you would consent to plant in a different location. Either by asking permission or just by doing so.

It is probably one of those occasions where you ask permission after the event or not at all. I would be inclined to use a decent firm of arborists who would themselves check the TPO situation themselves with the council. You could then - Angela Rayner-esque - say you that you had consulted the experts who didn't raise a problem. Tree surgeons would check TPO status, but not download deeds etc

That sort of condition on your deeds can't be expected to last forever, as trees do die off naturally in the fullness of time.

RAS

Unauthorised tree work can be costly. 

Have you even checked if the council will allow any extension forward of the building line, as that's often a no no?

bobster2

silvercar said:

That sort of condition on your deeds can't be expected to last forever, as trees do die off naturally in the fullness of time.

The wording of the covenant "...pursuant to the landscaping scheme required by the Local Authority..." implies that the tree planting was something the developer was required to do in order to get planning permission for the development.

And the way it's worded - use of language - suggests this could be a fairly recent development (e.g. last 30-40 years?). So I suspect this is not an old tree.

Section62

Fluffy_badger said:

We have just moved into a property which has a large tree in the front garden. 

We are looking to do an extension in the new year which will require the tree to be removed. In our deeds there is a restrictive covenant which says: 

“No trees or shrubs now standing or afterwards planted by the Transferor on the land hereby transferred pursuant to the landscaping scheme required by the Local Authority shall be cut down or in any way interfered with without the prior written consent of the Local Authority” 

The tree in question is in the original plans so is covered by this convenant. 

What are the implications to us if we were to remove prior to submitting planning permission for an extension without asking the local authority? 

We are not covered by a TPO or in a conservation area. 

Currently it is making our driveway quite narrow and doesn’t allow us to park two cars next to each other. So we are considering cutting it down well before submitting for planning approval, as more of a fix for parking issues rather than relating to the extension. 

...

How old is the house?

It sounds like the covenant is to support a planning condition imposed when the original planning consent was granted.

If so, removing the tree without the consent of the local authority may be a planning breach which could (at least in theory) result in planning enforcement action, and perhaps them requiring you to replace the tree with a semi-mature replacement (i.e. £££££)

You also need to check whether there is a planning condition relating to parking - there may be a prohibition on increasing the number of parking spaces and/or a restriction on paving over 'green' landscaped areas.

The natural death of trees and other landscaping is usually covered in planning conditions by requiring replacement within 'x' years of the original planting, and thereafter being accepted as a natural loss.  If so, the condition (and covenant) is not affected by this loss, other than for the specific plant in question.

Some councils are fairly resistant to the loss of 'green' space within residential areas, so cutting down the tree to make additional parking space (without the councils consent) could start you down the route to having difficulties with the planners (and maybe the neighbours).

If you want to build an extension it would probably be unwise to do something which might cause upset before you get consent, unless you are sure the extension would be permitted development.  But if the tree is in the front garden and would have to be removed to do the extension then it sounds as though it won't be permitted development, and might be a controversial application. In which case it could be even more important not to get on the wrong side of the council by going ahead with the tree removal without consent.

Fluffy_badger

Thanks for all your comments. 

Does anyone have any information on taking out indemnity insurance to cover ourselves? Is it worth it/will it do the job of protecting us against any complaints? 

loubel

Indemnity insurance for something you haven't done yet would likely be expensive, if available at all. And you might need the insurer's permission to apply for planning permission to further alter the land if this could draw the council's attention to the breach. 

You might need to instruct a solicitor and/or a planning specialist to review the paperwork to see whether there is a planning condition and whether this remains enforceable. 

Section62

Fluffy_badger said:

Thanks for all your comments. 

Does anyone have any information on taking out indemnity insurance to cover ourselves? Is it worth it/will it do the job of protecting us against any complaints? 

Indemnity insurance would give some protection (mainly financial) about something which has happened in the past, but it won't cover you for something you intend to do, or have just done.

Indemnity insurance also can't stop enforcement action taken against you, nor can it stop the neighbours reporting you to the council and/or objecting to your extension plans.

If you were about to sell the property and had cut the tree down at some point in the past then your buyer might ask for indemnity insurance to protect them against the risk of enforcement, and this really is what it is designed to do.

Bigphil1474

I work for a local authority, and we have a 'tree person'. Nobody I know has ever seen them or spoken to them, but there is an email address and someone always responds if we query anything to do with trees. Your local council may have the same.

I would guess (I don't work in planning) that you probably need planning permission to remove the tree as it sounds like a planning condition to have it in the first place - you could just ask them for permission, and if you get it great, if they respond saying you don't need their permission, jobs still a good un. Obviously, if they say no, at least you know that you could have been in stum if you just got rid of it. I reckon an Indemnity policy is probably a waste of money in this instance.