Cutting back conifers in C/A

[Carl1991]

Bird nesting?

I know, hence why I'm trying to see if I can crack on rather than get deeper into the season by 6 weeks. Tried t/o 3 times today still waiting for a return call

[Anno]

Not sure what the issue is, although its within a CA nobody is going to TPO a row of crap conifers...

[skyhuck]

2 hours ago, Anno said:

Not sure what the issue is, although its within a CA nobody is going to TPO a row of crap conifers...

Exactly!

 

I think some people worry far to much.

[daltontrees]

13 hours ago, EdwardC said:

How do you know they're 'crap'. I know of one case where there was a successful prosecution for cutting a row of conifers. The argument in court revolved around whether they were trees or a hedge. Trees won.

Quite right. Hedges can comprise trees, and in a CA cutting them is a breach, hedge or no hedge.

 

In the OP's case, they could possibly have been cut under the 'abatement of nuisance' exemption.

[kevinjohnsonmbe]

Completely obstructs access along side of bungalow - I’d give that ‘actionable.’

 

Maybe less so as it drops away down the garden but as it drops away down the garden so does the possible potential to warrant TPO. 
 

From the pen picture, I’d be 98.5% crack on and muller it. 

 

 

[daltontrees]

18 hours ago, EdwardC said:

Even more grey areas. Does nuisance mean actionable nuisance, or is mere encroachment nuisance.

 

If the former then they could cut back under the exception, but only so much as is necessary to abate the nuisance. That might not be sufficient for the client. If encroachment is considered a nuisance then they could cut back to the boundary.

 

There's arguments for and against both options. I vote for nuisance meaning actionable, but plenty see it the other way.

 

If intending to exercise your right under an exception it's worth running it past the local authority.

I'll be one of the plenty, but maybe not just on the interpretation of 'nuisance'. The relevant Regulation says "so far as may be necessary for the prevention or abatement of a nuisance". My dictionary says "prevent" means to stop happening", it's not just a synonym for "abate". So, depending on whether one thinks the "nuisance" has to be actionable, the Regulation either means 'prevent a nuisance becoming so bad that it's actionable' or it means 'prevent a nuisance'.

Anyone can look long and hard for a definition of 'actionable' but there isn't one (although one is hinted at in Lemmon v Webb). It was adopted as a test for use of TPO exemptions in Smith v Oliver and Perrin v Northampton on the basis that there must be actual or imminent damage, but in more recent case law the Master of the Rolls thankfully dispelled the myth that nuisance must involve damage, stating that it just needs to be a deprivation of someone's right to enjoy their property. Simple rights like growing plants, being able to get past your house to the back garden. These need not involve damage, and it would be pretty shit law that didn't allow someone to abate this type of nuisance despite there being no damage nor any prospect of damage.

 

So there's my firmly held view. The nuisance can be of any kind, and does not need to be damage or the apprehension of it, and since prevention of nuisance is as exempt as abatement, the 'actionable' test becomes one of whether it will become serious enough to be actionable rather than whether it is serious enough to be actionable. I'd go further and say that the seriousness issue is measured only by the 'so far as may be necessary' test, the actionable test being somewhat redundant. One could (and if anyone wants to see how it would look, I will) draw up a sequential scale of no foreseeable nuisance to actual material damage or prevention of use of property, and it is inevitable that prevention will precede actionable on that scale in any scenario.  

Edited March 13, 2020 by daltontrees

[Stubby]

If its just a CA can't you just say this is what I'm gonna do and if you don't get any reply from the TO then crack on ?

[daltontrees]

38 minutes ago, Stubby said:

If its just a CA can't you just say this is what I'm gonna do and if you don't get any reply from the TO then crack on ?

If in doubt, yes. But what I'm saying is there will be cases where you don't need to notify and wait 6 weeks.

[Carl1991]

Got a reply from the tree officer today, I can continue the work. He said normally yes, I would have had to file under 211 as trees havent been maintained as a hedge as such (the past application for reduction was done under t1,t2,t3 and g1) 3 separate conifers and a group formed as a hedge behind the bungalow. We are skinning the hedge area off which doesnt fall under ca. The trees do as such but he said as they have been reduced and formed into a hedge we can carry on without a 211. Just worth a check in my eyes. Thanks