Neighbour intends to cut tree with TPO?

[Deano 73]

Whilst it is a difficult situation your best bet is the local Tree Officer. It is an offence to cut live branches from a Protected Tree (or even one in a Conservation Area) without first obtaining formal written consent (or notification in CA). There are exemptions but light is not one and can never be considered an actionable nuisance in the UK. Has to be causing harm / damage to something to be that (such as contact with a building or roots damaging a structure or surfacing) - sorry daltontrees! I would also advise your mother in law might want to take pictures now before it is too late, and if someone comes to prune the tree get their vehicle registration. Situations like this can get really messy and some people can be so intolerant about trees and light. If the tree is protected they will have to abide by the law. 

[Stubby]

8 hours ago, Deano 73 said:

Whilst it is a difficult situation your best bet is the local Tree Officer.

In his last post he said he has .

[Paul Cleaver]

12 hours ago, Deano 73 said:

 There are exemptions 

One example that I remember was a tree that caused a person that much anxiety, it was deemed to have caused actual bodily harm to that person, so the Court ruled the tree could be pruned or felled, I cant remember which.

[daltontrees]

On 16/10/2020 at 22:05, Deano 73 said:

 There are exemptions but light is not one and can never be considered an actionable nuisance in the UK. Has to be causing harm / damage to something to be that (such as contact with a building or roots damaging a structure or surfacing) - sorry daltontrees!

Well since we're being blunt, I have to say that you are wrong. But don't take my word for it, the law was stated in modern terms by the Master of the Rolls in 2018 in Network Rail v Willians and Waistell.

"... although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them.  In Hunter at 695C, for example, Lord Lloyd said that nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.  The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law." 

"... the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance because nuisance is derived from the old form of action on the case must be treated with considerable caution.  As to the proposition, see, for example, Lemmon v Webb [1894] 3 Ch 1, 11, 21, 24; Davey v Harrow Corporation [1958] 1 QB 60, 71; Hunter at 695D; and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, [15] and [33].  It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one."

 

"It is also well established that, in the case of nuisance through interference with the amenity of the claimant’s land, physical damage is not necessary to complete the cause of action.". and later in the written judgement...

"Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance."

Or, in short, nuisance is not damage, it's interference with property rights. One of those rights is light. Another is the right not to have your property damaged.

Break free of the tyrranical misconception created by Lemmon v Webb and driven into the head of every arb student. There does NOT need to be damage for an action in nuisance to succeed. And so, if it's actionable, it can be done under exemption in a CA or TPO situation.

It's not me that's right, it's the Master of the Rolls and he's the highest civil law authority in the commonwealth.

There's even a reported case in the Court of Session in 1781 where nuisance by light blockage was actionable.

One more time  - There does NOT need to be damage for an action in nuisance to succeed. It's the law.

[kevinjohnsonmbe]

29 minutes ago, daltontrees said:

Well since we're being blunt, I have to say that you are wrong. But don't take my word for it, the law was stated in modern terms by the Master of the Rolls in 2018 in Network Rail v Willians and Waistell.

"... although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them.  In Hunter at 695C, for example, Lord Lloyd said that nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.  The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law." 

 

"... the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance because nuisance is derived from the old form of action on the case must be treated with considerable caution.  As to the proposition, see, for example, Lemmon v Webb [1894] 3 Ch 1, 11, 21, 24; Davey v Harrow Corporation [1958] 1 QB 60, 71; Hunter at 695D; and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, [15] and [33].  It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one."

 

"It is also well established that, in the case of nuisance through interference with the amenity of the claimant’s land, physical damage is not necessary to complete the cause of action.". and later in the written judgement...

"Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance."

Or, in short, nuisance is not damage, it's interference with property rights. One of those rights is light. Another is the right not to have your property damaged.

Break free of the tyrranical misconception created by Lemmon v Webb and driven into the head of every arb student. There does NOT need to be damage for an action in nuisance to succeed. And so, if it's actionable, it can be done under exemption in a CA or TPO situation.

It's not me that's right, it's the Master of the Rolls and he's the highest civil law authority in the commonwealth.

There's even a reported case in the Court of Session in 1781 where nuisance by light blockage was actionable.

One more time  - There does NOT need to be damage for an action in nuisance to succeed. It's the law.

 

[Deano 73]

Wow what a response, certainly caused a stir - not really intended, but i think we might have to agree to disagree on this one in terms of what is considered an actionable nuisance. Obviously if someone goes to court and pleads to case then a court could make a ruling, possibly in injunction, but that is a slow and probably very expensive process.

Some things that I can certainly agree is that in theory you might be able to demonstrate that light has caused so much harm to you or your property to get it claimed as a nuisance that you could then action (please note i did say harm or damage and that it can always be possible to go to the ends of the world to demonstrate harm if it is not physical damage). I would be impressed to see that case when it does come to court, but it is certainly not impossible.

The 2 cases you quote, the first relates to Japanese Knotweed encroaching on to a neighbouring property from Network Rail land. The issue about not causing harm, is a bit interesting given that Network Rail had allowed an awful lot of it to trespass, which in itself is an offence, but also it threatens property in both resale (which i think this was - without reading the judgement again?) and reasonable enjoyment as it grows rather aggressively underground and through surfacing. I bet the landowner got really frustrated with the lack of action by Network Rail and the ruling appears to be a good one with sound logic?

I do believe that the second case refers to light loss caused by a new building (please accept my apologies if not) and to my knowledge has never been upheld in respect of trees blocking light to buildings? My recollection of that case is also that the appellant had to demonstrate an awful lots of years of enjoyment of light to a particular aspect of his building.

I certainly would never advise anyone to use the actionable nuisance exemption to prune overhanging branches of a protected tree (TPO or Conservation Area) in terms of light loss, and would be concerned if any Arb professional did as it would be difficult to defend when a prosecution beckoned. But i suppose everyone has to give advice they feel is appropriate.

Having quite a few years of LA experience including a fair number of prosecutions & TPO appeals i would suggest that there hasn't been anything to lead me to believe that actionable nuisance in terms of light loss would apply to protected trees - that can obviously change. 

Anyway lets see what happens to tree in question, and lets keep it nice going forward as these forums are really useful and it did make me read Mynors and look at the cases quoted again - every day we should all try and learn something.

[kevinjohnsonmbe]

26 minutes ago, Deano 73 said:

Wow what a response, certainly caused a stir - not really intended, but i think we might have to agree to disagree on this one in terms of what is considered an actionable nuisance. Obviously if someone goes to court and pleads to case then a court could make a ruling, possibly in injunction, but that is a slow and probably very expensive process.

Some things that I can certainly agree is that in theory you might be able to demonstrate that light has caused so much harm to you or your property to get it claimed as a nuisance that you could then action (please note i did say harm or damage and that it can always be possible to go to the ends of the world to demonstrate harm if it is not physical damage). I would be impressed to see that case when it does come to court, but it is certainly not impossible.

The 2 cases you quote, the first relates to Japanese Knotweed encroaching on to a neighbouring property from Network Rail land. The issue about not causing harm, is a bit interesting given that Network Rail had allowed an awful lot of it to trespass, which in itself is an offence, but also it threatens property in both resale (which i think this was - without reading the judgement again?) and reasonable enjoyment as it grows rather aggressively underground and through surfacing. I bet the landowner got really frustrated with the lack of action by Network Rail and the ruling appears to be a good one with sound logic?

I do believe that the second case refers to light loss caused by a new building (please accept my apologies if not) and to my knowledge has never been upheld in respect of trees blocking light to buildings? My recollection of that case is also that the appellant had to demonstrate an awful lots of years of enjoyment of light to a particular aspect of his building.

I certainly would never advise anyone to use the actionable nuisance exemption to prune overhanging branches of a protected tree (TPO or Conservation Area) in terms of light loss, and would be concerned if any Arb professional did as it would be difficult to defend when a prosecution beckoned. But i suppose everyone has to give advice they feel is appropriate.

Having quite a few years of LA experience including a fair number of prosecutions & TPO appeals i would suggest that there hasn't been anything to lead me to believe that actionable nuisance in terms of light loss would apply to protected trees - that can obviously change. 

Anyway lets see what happens to tree in question, and lets keep it nice going forward as these forums are really useful and it did make me read Mynors and look at the cases quoted again - every day we should all try and learn something.

Your written response very much mirrors the collective, coordinated sharp intake of TO breath which caused a noticeable vacuum in the room when Dr Mynors expressed a very similar view to that Jules has presented above during his lecture at Barcham Trees 4 or 5 years ago. 

[Khriss]

Think the Network Rail case came abt after one landowner suicide so its a causal matter that could be used. Similar with High Hedges regs after the two old mad blokes took shotguns out over a Leylandii . If its still not sunk in-  usual courses of action before lawyers, if you value wots in yr wallet  ? K

[daltontrees]

On 19/10/2020 at 21:11, kevinjohnsonmbe said:

Your written response very much mirrors the collective, coordinated sharp intake of TO breath which caused a noticeable vacuum in the room when Dr Mynors expressed a very similar view to that Jules has presented above during his lecture at Barcham Trees 4 or 5 years ago. 

It's probably an uncomfortable truth for TOs. Dr. Mynors advocates the idea that the TPO exemptions such as nuisance abatement are necessary to avoid a tree owner being in a situation where he is in negligence at common law but cannot remedy it because of a TPO. That is intuitively correct and in a civilised society cannot be any other way.

[daltontrees]

On 19/10/2020 at 20:43, Deano 73 said:

Wow what a response, certainly caused a stir - not really intended, but i think we might have to agree to disagree on this one in terms of what is considered an actionable nuisance. Obviously if someone goes to court and pleads to case then a court could make a ruling, possibly in injunction, but that is a slow and probably very expensive process.

Some things that I can certainly agree is that in theory you might be able to demonstrate that light has caused so much harm to you or your property to get it claimed as a nuisance that you could then action (please note i did say harm or damage and that it can always be possible to go to the ends of the world to demonstrate harm if it is not physical damage). I would be impressed to see that case when it does come to court, but it is certainly not impossible.

The 2 cases you quote, the first relates to Japanese Knotweed encroaching on to a neighbouring property from Network Rail land. The issue about not causing harm, is a bit interesting given that Network Rail had allowed an awful lot of it to trespass, which in itself is an offence, but also it threatens property in both resale (which i think this was - without reading the judgement again?) and reasonable enjoyment as it grows rather aggressively underground and through surfacing. I bet the landowner got really frustrated with the lack of action by Network Rail and the ruling appears to be a good one with sound logic?

I do believe that the second case refers to light loss caused by a new building (please accept my apologies if not) and to my knowledge has never been upheld in respect of trees blocking light to buildings? My recollection of that case is also that the appellant had to demonstrate an awful lots of years of enjoyment of light to a particular aspect of his building.

I certainly would never advise anyone to use the actionable nuisance exemption to prune overhanging branches of a protected tree (TPO or Conservation Area) in terms of light loss, and would be concerned if any Arb professional did as it would be difficult to defend when a prosecution beckoned. But i suppose everyone has to give advice they feel is appropriate.

Having quite a few years of LA experience including a fair number of prosecutions & TPO appeals i would suggest that there hasn't been anything to lead me to believe that actionable nuisance in terms of light loss would apply to protected trees - that can obviously change. 

Anyway lets see what happens to tree in question, and lets keep it nice going forward as these forums are really useful and it did make me read Mynors and look at the cases quoted again - every day we should all try and learn something.

I am glad that you recognise that there can be nuisance without damage. At least we can discuss this issue now in the current century.

The important thing about the Network Rail judgement is that it's a statement of the law of nuisance, not a statement of the law of nuisance as it related to Knotweed. It was a conscious decision by the MR to make a modern statement that can be applied to and cited in ANY nuisance case. Tree people seem to be guilty of being unable to assimilate non-tree cases into their understanding of the law, whereas the law has no difficulty in applying the generalities of the law to tree cases.

I honestly don't see the problem of interpretation. Light is a natural riught. A neighbour's tree is encroachign and depriving you of that natural right. You can abate (Lemmon v Webb). You can if it is severe enough force the neighbour to abate (Halkerston v Wedderburn). The TPO legislation says not only that you can abate but you can prevent, suggesting a pretty low threshold.

I have advised clients that they can self-abate in TPO and CA situations. That's not risky, that's the professional thing to do because my duty is not to trees but to people and if they have rights they should know it and know that they can assert them. Difficult to defend? I don't think so. Difficult to prosecute, yes.