Seeking advise from LA tree officers

[daltontrees]

1 hour ago, arbgirl92 said:

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.

You also asked " Are we, as the owners of the trees, liable for minor damage such as lifting block paving? That prompted some general replies about law of nuisance and abatement. It may have seemed off-topic for me to go on about TPO exemptions, but I was only reacting to incorrectly stated generalities. It' a public forum after all, and I don't like the idea of people going away with a misunderstanding.

You're probably in the wrong place if you expect to hear only from LA TOs. But why restrict yourselves to them? Don't you just want to know where any tree owner stands when faced with disproportionate demands for tree felling following minor damage? Why copy the pragmatism of others when you can come up with the right answer yourself?

If you do, it's just a matter of common law. And the common law comes from case law. You may not want to get into court cases, but that's what happens. The Perrin case for example was required because up till then the law was not clear enough. It probably cost the parties (including the Council) tens of thousands each. And we get the answer for free. Including you. If you want to see the danger of generalising without understanding, read that case and you may appreciate that the answer can hang in a fine balance, and that you may need to take correctly calibrated scales with you day-to-day.

[daltontrees]

Three flaws in your treatise Edward C.

 

The first clarification is that nuisance does not have to involve damage. The Network Rail case made this ever so clear, and is bang up to date. So, there can be nuisance from encroachment without damage, and it can be actionable of it's serious enough.

 

The second is that a tree owner can abate a nuisance by cutting branches or roots on the neighbour's land, with the consent of that neighbour, as part of an agreement to abate a nuisance or an offer to do so. The exception for TPO trees makes no distinction as to who abates or prevents, it is the nuisance that is important.

 

The third is that an encroaching branch that is causing an actionable nuisance can be removed to abate a nuisance, not to prevent it, and the 'abate' exception is therefore available to the tree owner, not just the 'prevent'. That's what the Act says.

 

There are even circumstances when abatement would requires removal of the whole tree. Unusual, but legally competent.

 

It's not dangerous ground at all. The TPO exception is clear and can apply to non-damage nuisance to a neighbour, and abatement or prevention of it by a tree owner. The risks are these (i) using the exception for trivial nuisance (ii) ignoring possible alternative solutions to pruning and (iii) doing more than is necessary.

 

I'll reword it as a set of simple rules.

 

If a TPO'd tree is causing or willl foreseeably cause nuisance to a neighbour, the tree owner may prune roots or branches or roots on his own land (or, with the agreement of the neighbour, on the neighbour's land) without the Planning Authority's prior consent, as long as (i) the nuisance is or will foreseeably become actionable (ii) possible alternative solutions to pruning have been considered and ruled out and (iii) no more is done than is necessary to abate or prevent the nuisance.

 

Hopefuly that's clear now. If not, a re-reading of Network Rail and Perrin will do the trick. The ground is only dangerous to tread on if uninformed or reckless.

 

I leave you with another pespective. If the exception could be used but the tree owner instead asks the LPA for consent, the LPA has no duty to consider the issues of nuisance and can not be relied upon (or called upon) to resolve a civil law dispute. Statute provides exceptions and expects that they be used. What would the justification be for th TPO application works? The prevention or abatement of a nuisance? If it was and I was the LPA, I'd bounce it and invite the applicant to use the exception. It's what it's there for, and what the LPA's not there for i.e. arbitrating in legal disputes.

[kevinjohnsonmbe]

A very keen point Jules - the neighbour may engage whomsover he sees fit to do work to abate - could be himself, could be a contractor, could be the tree owner. 

 

Havent read all of both posts yet yet but I think Ed was at the Mynors seminar at Barchams a year or 2 back. 

 

The “great caution” angle was certainly not how I recall the discussion of this topic as presented by the great wise one....