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Andrew L

TPO work permission granted but with a "note"

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58 minutes ago, benedmonds said:

There is debate, some say the opposite is true and that the right to cut back to boundary over rules the TPO. 

Interesting; don't think our local TO would see it that way.

When neighbours have carried out work on TPO'd trees i look after without permission (or proof of legal nuisance/ previously stated exemptions) they have always, at the very least, received a warning letter.

Edited by Michael h
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7 minutes ago, Paddy1000111 said:

You legend! If that was posted on here elsewhere I missed it. Concrete proof instead of hearsay and random website blog posts! 👌

Thanks Paddy

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There's some iffy stuff being said here. Bottom line is that encroaching branches can be as much of a nuisance in the legal sense as rooots causing damage. There need be no damage, just prevention of someone's property rights.

 

It seems plain enough that the OCuncil is mentioning nuisance as a preamble to clarifying that although there is a common law right of abating a nuisance there is no right to trespass to do so. So although the TPO works are consented the owner's consent would still be required for anything other than that which is allowed under common law too.

 

There is absolutely NO WAY that this is indicating that TPO cosent was not required in the first place.

 

Pause.

 

Now, as has been said, TPO legislation does allow abatement of nuisance without TPO consent. It's not that simple, though. Case law suggests that the nuisance has to be quite serious, at a level known as 'actionable'. Actionable can be taken to mean at a level where a court would on application of the encroached party order a tree owner to abate the nuisance. Or possibly issue a declarator that the encroached party has the right to self-abatement i.e do it himself.

 

I am adamant that the courts haven't got ot the bottom of this yet and that we will see refinements to the law. Some would argue that a TPO prevents a landowner doing what he wants to do with his own tree, and this also burdens anyone in its spread. That is to say it is the tree that is protected, not the land that the tree is on. But ultimately Dr. Mynors suggests that the exemption for abatement in a TPO nuisance situation is there to avoid a tree owner being obliged at common law to do something but prevented from doing so at statute. That is only fair.

 

The failing of the 'actionable' threshold is tha the exemption also allows prevention of nuisance, which suggests in the plainest interpretation of that word that the nuisance doesn't need to be serious. In fact, it doesn't need to have happened yet.

 

Summary to the OP,  don't take the advisories to be proof that consent wasn't needed. It may not have been but it has been granted so why worry? And secondly tread very carefully in future situations. One might not need to take a Council's word for it that abatement or prevention is not exempted, but one needs to be bloody sure that the reasons for abatement are genuine and the works are proportionate and justifiable. And I would add, done professionally so as to demonstate no avoidable additional damage to the public amenity provided by the tree.

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I just went off the .gov page that says: 

 

The authority’s consent is not required for carrying out the minimum of work on a tree protected by an Order that is necessary to prevent or abate a nuisance. Here ‘nuisance’ is used in its legal sense, not its general sense. The courts have held that this means the nuisance must be actionable in law – where it is causing, or there is an immediate risk of it causing, actual damage.

 

Which says to me that you need TPO approval unless the branch is imminently about to or actually causing damage? Is that right? 

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2 minutes ago, Paddy1000111 said:

I just went off the .gov page that says: 

 

The authority’s consent is not required for carrying out the minimum of work on a tree protected by an Order that is necessary to prevent or abate a nuisance. Here ‘nuisance’ is used in its legal sense, not its general sense. The courts have held that this means the nuisance must be actionable in law – where it is causing, or there is an immediate risk of it causing, actual damage.

 

Which says to me that you need TPO approval unless the branch is imminently about to or actually causing damage? Is that right? 

No, nuisance can be encroachment, damge by roots, prevention of cultivation because of roots, branches touching buildings, and probably other categories I can't think of just now. But I would agree that the 'prevention' should probably be for immediate apprehension of damage or physical encroachment rather than visionary forward planning.

 

See my previous comments about 'actionable', the gov website is being too literal about it and the law is not fully evolved yet. Just ponder if you would the contradiction, the gap. between actionable and preventable...

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9 minutes ago, daltontrees said:

No, nuisance can be encroachment, damge by roots, prevention of cultivation because of roots, branches touching buildings, and probably other categories I can't think of just now. But I would agree that the 'prevention' should probably be for immediate apprehension of damage or physical encroachment rather than visionary forward planning.

 

See my previous comments about 'actionable', the gov website is being too literal about it and the law is not fully evolved yet. Just ponder if you would the contradiction, the gap. between actionable and preventable...

I see what you mean, it does leave a lot to interpretation... I just took immediate threat as say, a large branch with a crack through it overhanging a house or fence or, branches physically touching a building where a strong wind could cause immediate damage? The other examples you gave like prevention of cultivation are a nuisance but not "causing immediate damage". By my theory though they wouldn't need the exception for work on dangerous trees unless that covers the cracked branch overhanging a school playground type of deal where the damage is human life. 🤷‍♂️

 

Do they get tree guys to write tree law or solicitors 😂

Edited by Paddy1000111

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If the proposed works by the OP ( the cherry and mountain ash ) are within the client  property boundary and not from someone else's property  is not all the rest of the debate irrelevant  ?

Edited by Stubby
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10 minutes ago, Stubby said:

If the proposed works by the OP ( the cherry and mountain ash ) are within the client  property boundary and not from someone else's property  is not all the rest of the debate irrelevant  ?

Yea completely, I'm not really debating anything, just trying to learn a little more about TPO's as it's not a heavily trodden path for me!

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Thanks all for your insights on this.

In answer to various comments above:

 

Yes.  Both trees are within the client property boundary and so the debate is purely hypothetical but the householder is clearly very keen to make use of whatever options to improve the light to her property.  There is substantial and sustained (spade?) damage to the cherry tree roots which I believe has caused die-back to the tree and I duly documented this on my application but this aspect was not even mentioned on the permission: did the TO even go and look?!  Who knows?

 

Cherry tree prune at this time of year?  Well I was originally contacted back in ~May 20.  No response from householder for at least 3 months after quote sent in.  First application for works to the council denied.  This order gives 2 years to complete the work,,,,  ;)   But it is interesting that I have yet to see a TPO with a species-specific time of year prune recommendation.

However, it is my understanding that both cherry and mountain ash are ideally pruned late winter-early Spring.

 

If and when our learned colleagues at the council do respond to my request for clarification, I will update here.

Cheers and thanks again

Andrew

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