Seeking advise from LA tree officers

[Chris at eden]

Hi Arbgirl

 

I currently split my time between consultant and TO within a Planning Department.  I processed an application last year to fell a mature Horse Chestnut as it was damaging the edging blocks on a driveway.  I refused the application as the tree has high amenity value and clearly there is an engineering solution in that the block pavers could be lifted and re-laid grading up slightly over the offending root.  Not a costly operation.  The agent then submitted an appeal to the PINS who dealt with the issue via fast track.  The PINS inspector agreed with us that the amenity value of the tree (and loss of) would outweigh any benefit that would be gained by felling.  The appeal was dismissed and the drive is still in the same condition.  I suppose technically we could be liable if the damage progressed significantly but it cost would be low so we take that risk.  We never receive claims anyway so not a big issue where I work. 

 

Cheers

          

[Gary Prentice]

1 hour ago, Chris at eden said:

Hi Arbgirl

 

I currently split my time between consultant and TO within a Planning Department.  I processed an application last year to fell a mature Horse Chestnut as it was damaging the edging blocks on a driveway.  I refused the application as the tree has high amenity value and clearly there is an engineering solution in that the block pavers could be lifted and re-laid grading up slightly over the offending root.  Not a costly operation.  The agent then submitted an appeal to the PINS who dealt with the issue via fast track.  The PINS inspector agreed with us that the amenity value of the tree (and loss of) would outweigh any benefit that would be gained by felling.  The appeal was dismissed and the drive is still in the same condition.  I suppose technically we could be liable if the damage progressed significantly but it cost would be low so we take that risk.  We never receive claims anyway so not a big issue where I work. 

 

Cheers

          

It seems that PINS isn't always consistent. A had a similar situation with a 'washboard' block-paved drive, the LA refused an application to fell because I hadn't shown that engineering solutions couldn't be used. It went to appeal and we won. In hindsight, I think that the LA could/should have done more to bolster their position.

 

It feels like an imposition on the affected neighbour though, to undertake a 'short-term' solution where there's a probability that further regrading will be required. (depending on the age/maturity of the tree)

[Chris at eden]

1 hour ago, Gary Prentice said:

It seems that PINS isn't always consistent. A had a similar situation with a 'washboard' block-paved drive, the LA refused an application to fell because I hadn't shown that engineering solutions couldn't be used. It went to appeal and we won. In hindsight, I think that the LA could/should have done more to bolster their position.

 

It feels like an imposition on the affected neighbour though, to undertake a 'short-term' solution where there's a probability that further regrading will be required. (depending on the age/maturity of the tree)

Hi Gary

 

It used to be pretty easy to judge what the PINS inspector was going to come back with but then they stopped using Arbs for the appeals and started using planners.  Its more like rolling the dice now.  Its quite a recent development so I haven't handled enough to judge what their views are going to be moving forward.   

 

In response to the one you had, I suppose it depends on whether the use of an engineering solution was feasible.  If it wasn't then there is only one option.  The one I mentioned was an easy fix and they were using the drive as an excuse to fell the tree.  Its also in the AONB.   

 

Cheers

 

[Gary Prentice]

1 minute ago, Chris at eden said:

Hi Gary

 

It used to be pretty easy to judge what the PINS inspector was going to come back with but then they stopped using Arbs for the appeals and started using planners.  Its more like rolling the dice now.  Its quite a recent development so I haven't handled enough to judge what their views are going to be moving forward.   

 

In response to the one you had, I suppose it depends on whether the use of an engineering solution was feasible.  If it wasn't then there is only one option.  The one I mentioned was an easy fix and they were using the drive as an excuse to fell the tree.  Its also in the AONB.   

 

Cheers

 

Definitely a step backwards with the loss of Arboriculturists in the Appeal System.

 

If I remember correctly the TO wanted me to go to appeal as a test case on 'nuisance' as the authority didn't have any procedure as such in response. They could deal with subsidence, but a drive and 'actionable nuisance' was a different thing. Mick Boddy was the inspector and ultimately I think that he took a pragmatic approach, even though it meant he loss of good, mature birch which was very prominent. Sometimes it just a case of a tree in the wrong place. 

[daltontrees]

But that's irrational. If a tree is causing nuisance, the neighbour who is being 'nuisanced' can self-abate under the exception. But the tree owner must be able to prevent or abate a nusiance, otherwise the statute would be preventing him doing what the common law obliges him to do. As such I believe the exception allows the owner more, not less, opportunity to carry out tree works to abate nuisnace, because the owner is better placed to anticipate, then prevent nuisance.

[kevinjohnsonmbe]

Agreed, the tree owner DOES have the opportunity / facility to abate or prevent further nuisance to a neighbour - by submitting the circumstances and proposals via a TPO app. 

 

If consented, proceed. If not, liability for remediation of nuisance (after application) may be transferred. 

[daltontrees]

WRT preceding two posts, I am finding this explanation unsatisfactory, and I'd like to get tho the bottom of this with or without you guys' help.

 

I believe it is wrong to assume that the compensation for damages provision in the 2012 Regs (and formerly in the Act) override the exception for abatement. I believe it is clear that the compensation provisions are there for the benefit of someone wanting to address damage to their own property by their own tree. Arguably they are there only for that situation and not for the nuisance damage situation. And the compensation Regulation obliges the tree owner and claimant to have averted or mitigated loss. I'll even stick my neck out and say that on ones own land, "to avert the loss or damage or to mitigate its extent" (R.24(4)(c)) is directly analagous to "necessary for the prevention or abatement of a nuisance" (R.14(a)(ii)). As such, it's irrational to infer that they overlap or that one overrides the other. They anticipate and deal with different situations.

 

I'd add that it is dangerous to assume that nuisance equals damage, or vice versa.* It's probably safe to stick to the line that the nuisance or imminent prospect of it has to be 'actionable', but that's not the question here. There are other forms of actionable nuisance than damage (see recent Network Rail case, which seems to question convincingly and usefully that dangerous assumption).

 

There could be situations when failing to prevent a nuisance could be just as damning as failing to abate it.

 

Sorry guys, but you appear to be arguing against the very plain wording of the legislation. Can anyone direct me to case law that clarifies that a tree owner has to apply for consent to do something that is specifically and clearly excepted in the Regulations? I accept that 'necessary' and 'nuisance' are not trivial hurdles to get over, but once over them there's no further obstacle to crossing the line i.e. abating the nuisance before getting sued.

 

* e.g. branch encroachment preventing the parking of a car could be nuisance but not damage. A dangerous tree fallign on a neighbour's property could be damage but not nuisance.

[daltontrees]

I have done that. I am working from the 1st edition of Mynors. At 17.5.8 he says "It seems therefore that the 'prevention of a nuisance' means the carrying out of works for the removal of branches and roots of one's own tree that are encroaching over or into the land of a neighbour".

 

Unless there's been a screaming and completely inexplicable U turn on his deliberations in the 2nd edition, I hold that I am in fact correct, the exemption may be used by the owner of a TPO'd tree to carry out work to it without consent, if and only to the extent necessary (all other solutions being disproportionatley expensive or complex*) to prevent or abate an actionable nuisance.

 

The perusal of Mynors has been useful in reminding me that the courts and parliament see the statutory exemption as useable in the sense of common law nuisance, subject to the severity being 'actionable'. I am relieved that it is that simple. The compensation for damage provisions are a different thing completely, as I thought.

 

If Mynors goes to a 3rd edition, the recent development of the law of nuisance particularly the validity of quia timet nuisance, would I think be such that the abatement exemption may be explained as allowing for work in the anticipation of damage.  In the 1st edition he hinted at government intention to make changes. I wrote to him in such a tone during the recent welsh tree law review.

 

*along the lines thrashed out in Perrtin v Northampton at appeal.

[arbgirl92]

Thank you to everybody that stayed on topic...

My query wasnt about TPOs or CAs or long winded court cases. Simply 'how do council TOs respond to complaints of council trees causing damage to drives'.

 

I'm not concerned about court cases, I dont expect for such minor damage to lead to court. Any cases of significant damage I would deal with accordingly. I'm just sick of the public telling me I need to fell our trees because roots are pushing up their paving so thought it would be good to know how councils deal with this.

[daltontrees]

1 hour ago, EdwardC said:

3.7.2 & 17.5.1

Still in denial?

 

Mynors launches into this from the perspective of the neighbouring proprietor's rights at common law. 3.7.2 is mainly about whether his tenant can abate a nuisance. It is about the tort of nuisance, not about abatement. It does not say that a tree owner can't abate or prevent a nuisance. Of course he can. That's so obvious it doesn't need to be said.

 

17.5.1 is also from the neighbour perspective, but where there is a TPO. 3 scenarios are presented. Abatement  by the tree owner is dismissed if it is to be done to abate a nuisance to himself. Quite rightly. But the section (17.5) goes on to conclude at 17.5.8 as I did yesterday that if a nuisance exists to a neighbour, the tree owner can prevent or abate it by carrying out work to his own tree. It's almost identical to common law. It really really is that simple.

 

Please read 17.5.8.