Protestors seeking to save the tree successfully gained an injunction on Monday (June 27) to prevent the hearing until today but in that hearing the case was dismissed.
Deputy District Judge Slaney at Peterborough County Court said he had no choice but to dismiss that case as he did not have sufficient jurisdiction to make a ruling.
A judicial review at the High Court would be the next step for protestors but it is yet to be seen whether they would be able to finance such a course of action.
The decision leaves the council free to resume the felling of the 600-year-old tree which was originally scheduled to take place on Tuesday.
"We understand the point of view of some residents, it is a beautiful tree and we would not be doing this if we did not have to. All options to save the tree could have cost the council hundreds of thousands of pounds in repairs and legal fees. This would have meant we had no money to plant additional trees in our city or maintain our existing tree stock.
“We will be going ahead with the felling and ask those at the scene to respect our decision– we especially ask that they do not put themselves in danger and to think carefully before doing anything illegal.”
The council has not given a date in which it intends to fell the tree but it has suggested a cordon will place around the tree and breaching it would be classed as trespassing.
A city council spokesperson said: “When the tree is felled, the police will be present to ensure an orderly felling of the tree and the council would like to remind all unauthorised personnel and the public that attempting to gain access to the cordoned off area is classed as aggravated trespass which is a criminal offence.”
To mitigate for the felling of the tree, the council has promised to plant 100 young oak trees across the city but that has done little to appease protestors.
The council has decided to remove the tree to remove its liability for repairs to a nearby home and insurance company claims has been damaged by the tree. It estimated that underpinning the house could cost up to £150,000.
The spokesperson added: “A key driver to the council’s decision is that the alternative to felling could cost the council hundreds of thousands of pounds in repairs and legal fees. This would mean the council would have no money to plant additional trees in the city or maintain its existing tree stock.
“Two ecological assessments have been completed so far. The first was conducted in the tree last week and concluded there were no bats or nesting birds. A crow’s nest was found, but this was believed to be empty. A further three-hour survey was completed on the ground on Monday which again, found no evidence of nesting birds.
“A city council CMDN giving permission for the felling follows a third independent expert assessment and report into the tree earlier this year which concluded that the damage is 'probably caused by root induced subsidence.'
"This report and the body of evidence available to the city council made it clear that on the balance of probabilities the tree is the primary cause for the damage to the houses.
“As well as the original home which is believed to have structural damage caused by the tree, a further home is raising a claim against the council and potentially another three homes could follow suit. The cost of underpinning just one of these homes could be around £150,000.
“A total of 100 young oak trees – up to two metres high – will be planted this autumn/winter across the city to mitigate against the environmental impact of this decision. A range of alternative options were assessed before the decision was made, including use of root barriers, which would depend on gaining homeowner consent and had no guarantee of success or the ability to eradicate the risk of further damage.”