Appeal against refusal to fell - direct contact structural damage

[kevinjohnsonmbe]

5 minutes ago, daltontrees said:

Gary, as you know, there is an exception in TPOs for the prevention or abatement of a nuisance. The damage appears to be substantial enough to be actionable, although in my opinion the wording of the legislation and the trend of court interpretation is that the nuisance doesn't even need to be actionable to be an appropriate  use of the exception

A point which raised great sighs of horror and astonishment at the Mynors  Barcham seminar some years ago (was it 2015 already??)

[daltontrees]

5 minutes ago, Gary Prentice said:

The reasons for removing in the original app were that it was causing an actionable nuisance. I don't think that it actually matters if the aggrieved party has started an action in the CC or is already claiming for damages. The fact remains that my client has a liability due to the tree. 

 

 

I would say that actionable nuisance should never be the only reason in an application. Parliament has given the exception, and it can and should be used rather than asking for a LA to exercise its discretion or interpret whether a legal nuisance exists. 

Perhaps what's really in mind is that use of the exception would either only hold back the tide for a while or would necessitate the removal of so many roots that the tree would die or fall over. In that case, it's a question of what it's reasonable to do. It could in certain circumstances be valid to remove the whole tree under exception on the basis that root removal is absolutely unnecessary and tha the tree will be dangerous thereafter, which is in itself a valid exception.

It's back to the Perrin/Northampton sceabnario of alternative engineering solutions and whether their costs are unreasonable.

How about a budget cost for a pile and beam rebuild and an amenity valuation side by side? That way you could quantify the disproportionate burden on the tree owner.

[daltontrees]

Just now, kevinjohnsonmbe said:

A point which raised great sighs of horror and astonishment at the Mynors  Barcham seminar some years ago (was it 2015 already??)

Ooh, please explain! I only have Mynors 1st edition but in it he was drifting towards the interpretation that I now hold to be the only possible one. What was his latest take on it?

[daltontrees]

7 minutes ago, Gary Prentice said:

Can you still claim compensation for additional costs, resulting from a refusal, after an unsuccessful appeal?

Yes, as long as the original application contained sufficient grounds to allow the LA to reasonably foresee the damage.

[Khriss]

Am I doing yr job fr you come darn ere n deal with these baffling wankrs I need a rest k

 

(OPM I ask you ! Barrel of laff !)

[kevinjohnsonmbe]

1 minute ago, daltontrees said:

Ooh, please explain! I only have Mynors 1st edition but in it he was drifting towards the interpretation that I now hold to be the only possible one. What was his latest take on it?

It was part of his seminar at Barchams (I think it was 2015) Generally, the discussion was circling around his view that the construct, interpretation, administration, deliverables and consequences of the current TPO system being clumsy, administratively burdensome and not particularly effective/ efficient. 

 

His declaration that abatement of actionable nuisance would (provided it actually was) require no consent from LA. 

 

There was a palpable collective gasp of horror from the +/- 80% LA TO audience.  

 

 

 

[Gary Prentice]

8 minutes ago, daltontrees said:

Gary, as you know, there is an exception in TPOs for the prevention or abatement of a nuisance. The damage appears to be substantial enough to be actionable, although in my opinion the wording of the legislation and the trend of court interpretation is that the nuisance doesn't even need to be actionable to be an appropriate  use of the exception.

I think it would be appropriate to include in your arsenal the 'so far as may be necessary' possibilities for abatement. That covers the neighbour's side. On the client's side the compensation rules would apply for a while after refusal, but only from the time of the application and only if the (further) damage was foreseeable. So my client would still be able to claim for the difference between 'tree/roots gone rebuild and tree retained with engineered foundations, should we lose the appeal? 

There was a thread on here a couple of months ago when a similar physical circustance was looked at, and a piles + ground beam solution looked possible to support a replacement wall. Expensive? No doubt. Possible? Almost certainly. Fair? Well... I was trying to find the concrete beams that, I think, you mentioned. R21 or something?

It all seems a bit unfair, but the tree would have done the damage anyway and the TPO is only a retrospective cosntraint on the solutions available. I think the species susceptibility to DED is a red herring, if anything it creates a scarcity value that might even bolster the LA's grounds for refusal. To make matters worse, there are two large mature ash along the clients eastern boundary, either on the fenceline or in other adjacent properties. Both look pretty ragged and we're watching for Chalara symptoms. I'm sure that the TO has looked at them, thought that they will probably go in the next 5-10 years and that will have been a consideration too, in the decision. It don't rain but it pours!

All a bit negative towards your cleint's position, but it's a perspective anyway. Perspective appreciated. 

 

5 minutes ago, openspaceman said:

Even if unadopted if there is  a PROW it could be highway, the solus could belong to the property.

Despite a quick search, you're still going to have to explain what 'solus' means 

5 minutes ago, kevinjohnsonmbe said:

A single tree TPO Gary, or part of a group / area order?

 

If individual, is there a history of perceived threat to the tree from previous land owner?

 

Maybe not central to the circumstances going forward, but maybe of interest / some relevance in understanding LA position. 

 

Horse trading potential if landowner can be patient?

 

Let it die, reduce as hazard requires, leave remains, no re-plant no TPO moving forward....

 

Kevin. An area TPO. I searched this a while back, for other reasons, and it was a bit unclear. I had a TPO date of 1986, which I used in the application to fell. I've just noticed that looking at the refusal it refers to another order dated 2018!!! More recently the area has become a bit contentious with large old properties in big grounds being developed so a newer order is kinda understandable but that doesn't explain why I was given the early TPO date. 

 

"Let it die, reduce as hazard requires, leave remains, no re-plant no TPO moving forward...." That may be where we end up! But there is still the issue of a solicitors letter arriving from the neighbour at some point.

[Gary Prentice]

20 minutes ago, daltontrees said:

How about a budget cost for a pile and beam rebuild and an amenity valuation side by side? That way you could quantify the disproportionate burden on the tree owner.

That's the way I think that I'm going, although I've never had to calculate an amenity evaluation before. Best one to use?

[Gary Prentice]

20 minutes ago, daltontrees said:

Yes, as long as the original application contained sufficient grounds to allow the LA to reasonably foresee the damage.

I'm a bit fixated on those words 'reasonably foresee'.

 

In the original app I said that the wall, and pillar showed signs of historic damage, and repair, and were now cracked and leaning again - apparently due, in part, to the lateral root in the photo. I acknowledged the usual requirement to seek an engineering solution but said that this would require remediation of the third parties wall as well. (Leaving it unsaid that this would be a complication- I just raised that point) I'd hope that all of that would be adequate to make everything reasonably foreseeable?

[Gary Prentice]

22 minutes ago, kevinjohnsonmbe said:

His declaration that abatement of actionable nuisance would (provided it actually was) require no consent from LA. 

I'm not sure that I'd want to be the test case for that locally. I'm fairly confident that the head TO would be delighted to take me to court just to clarify the position. 

 

Still, I'd have plenty of company in the dock, me the agent, the contractor, the tree owner and the wall owner! I wonder how much liability I'd actually have as the agent, if I told everyone to cart on? Not my tree to allow it to be done, not actually doing it... I suppose that anyone prosecuted for contravention could pursue me...