Branches Growing over my Neighbour's Boundary

[Puffingbilly413]

23 hours ago, daltontrees said:

to try and clarify the current law on nuisance

Thanks Jules. Interesting read. But in reality we could say that no one, even the highest civil judge in the country, can actually define it - certainly not succinctly (or dare I say it, usefully!)

[daltontrees]

6 hours ago, Puffingbilly413 said:

Thanks Jules. Interesting read. But in reality we could say that no one, even the highest civil judge in the country, can actually define it - certainly not succinctly (or dare I say it, usefully!)

Well, it is definable in the sense of it being the prevention of the rightful use of your property, but the list of things that could prevent it is elastic and the degree is always going to be important in seeing whether a court will entertain an action. It becomes even more difficult in deciding to exercise the TPO 'nuisance' exemption, since the only case on that says that it can only be used where the nuisance is 'actionable'. And considerable doubt remains on the correctness of that judgement. Time (and someone's deep pockets) will tell.

 

Personally I don't see why everyone focuses so much on 'actionable' when the exemption allows not just for abatement of nuisance but for 'prevention'. In the dictionary in my head that means before it becomes a nusance, actionable or otherwise.  A stich in time saves nine!

[kevinjohnsonmbe]

15 hours ago, daltontrees said:

Well, it is definable in the sense of it being the prevention of the rightful use of your property, but the list of things that could prevent it is elastic and the degree is always going to be important in seeing whether a court will entertain an action. It becomes even more difficult in deciding to exercise the TPO 'nuisance' exemption, since the only case on that says that it can only be used where the nuisance is 'actionable'. And considerable doubt remains on the correctness of that judgement. Time (and someone's deep pockets) will tell.

 

Personally I don't see why everyone focuses so much on 'actionable' when the exemption allows not just for abatement of nuisance but for 'prevention'. In the dictionary in my head that means before it becomes a nusance, actionable or otherwise.  A stich in time saves nine!

And that is exactly the point I took away from the Dr Mynors presentation to the assembled masses (60-70% TOs I’d guess) at Barcham Trees - what was it now, 5 years ago?

 

There was such a sharp intake of breath at the point Where he suggested there was a fairly broad abatement / prevention TPO exemption that a vacuum was created in the building and several people had to be taken to A+E with ruptured eardrums!

 

 

[Sutton]

49 minutes ago, kevinjohnsonmbe said:

And that is exactly the point I took away from the Dr Mynors presentation to the assembled masses (60-70% TOs I’d guess) at Barcham Trees - what was it now, 5 years ago?

 

There was such a sharp intake of breath at the point Where he suggested there was a fairly broad abatement / prevention TPO exemption that a vacuum was created in the building and several people had to be taken to A+E with ruptured eardrums!

 

 

So, in summary, a wealthy individual could prune a TPO without notifying the local TO, sidestep compliance, force it to court and then push the case for prevention of nuisance as trumping established regulation and, if successful, set a future precedent for LAs' affect on urban streetscape, conservation areas etc???

 

Dangerous grounds, m'lord! Shirley!🤣

[kevinjohnsonmbe]

5 hours ago, Sutton said:

So, in summary, a wealthy individual could prune a TPO without notifying the local TO, sidestep compliance, force it to court and then push the case for prevention of nuisance as trumping established regulation and, if successful, set a future precedent for LAs' affect on urban streetscape, conservation areas etc???

 

Dangerous grounds, m'lord! Shirley!🤣

I'd change your word "wealthy" for "righteous" since if the correct circumstances prevail, a just man should be able to rely upon the sound interpretation of the law resulting in a fair judgement.

 

In reality though, you'd have to have deep pockets, big kahoonas or a complete disregard for personal finances to embark on such a journey.  

 

In the mean time, all those of us that lack any or all of the attributes noted above will likely just carry on presenting well reasoned and justified TPO applications whilst treading the fine line between what the tree owner wants, what the planning department will approve and what is best for the tree.  

[daltontrees]

On 02/10/2022 at 13:58, kevinjohnsonmbe said:

I'd change your word "wealthy" for "righteous" since if the correct circumstances prevail, a just man should be able to rely upon the sound interpretation of the law resulting in a fair judgement.

 

In reality though, you'd have to have deep pockets, big kahoonas or a complete disregard for personal finances to embark on such a journey.  

 

In the mean time, all those of us that lack any or all of the attributes noted above will likely just carry on presenting well reasoned and justified TPO applications whilst treading the fine line between what the tree owner wants, what the planning department will approve and what is best for the tree.  

Yes but remember you would only have to embark on such a journey if the local authority also had the nerve. It has to persuade its members and then the prosecution service of the legal basis for a prosecution.  Which, on reading the plain english of teh legislation, it would fail to do.

I believe Mynors to be right on this. As he suggests, the legislation cannot prevent someone from doing something that the common law obliges him to do i.e. causing legal nuisance.

Unless you're the scottish parliament, but that's a different story.

[daltontrees]

On 02/10/2022 at 08:40, Sutton said:

So, in summary, a wealthy individual could prune a TPO without notifying the local TO, sidestep compliance, force it to court and then push the case for prevention of nuisance as trumping established regulation and, if successful, set a future precedent for LAs' affect on urban streetscape, conservation areas etc???

 

Dangerous grounds, m'lord! Shirley!🤣

It wouldn't be sidestepping compliance if the law says it would be allowed. It wouldn't be trumping established regulation, it would be setting aside established misconception and custom and practise. It wouldn't be a legal precedent, because the law is already clear.

Think of it this way. Someone's tree encroaches and prevents someone else's use of their land. At common law either party could and should do something about that. Why should the imposition of CA or TPO be allowed to prevent that?

[Sutton]

23 minutes ago, daltontrees said:

It wouldn't be sidestepping compliance if the law says it would be allowed. It wouldn't be trumping established regulation, it would be setting aside established misconception and custom and practise. It wouldn't be a legal precedent, because the law is already clear.

Think of it this way. Someone's tree encroaches and prevents someone else's use of their land. At common law either party could and should do something about that. Why should the imposition of CA or TPO be allowed to prevent that?

I cant dispute common law nor CA regulation particularly as this is your specialty and you give sound advice for forum users all the time.

 

Besides, I can't even differentiate between Kevin's subtle distinction of justice for the righteous and principled wealth because, to my mind, few would get legal aid on tree nuisance cases so seeking justice necessarily means you need a surplus of cash, balls, etc so that wealth and getting justice in the legal world of trees amounts to the same thing- as I say, I defer to those with the experienced expertise.

 

That said, would it be fair to say the following:

Loss of light from overhanging tree branches from a neighbour's garden or encroaching roots below ground from this hypothetical tree would be classed as a mere nuisance (you'll know the correct term). But when a nuisance becomes severe then complying with regulation and submitting to process can be ignored because any delay could make the situation worse.

That is, I'm asking if time is the only factor that supports lawful abatement which sidesteps applications to the CA, where, for instance a branch is (evaluated by an expert witness with documentary evidence and) deemed an immediate risk and preventable action must be taken asap- i.e. get a tree surgeon to deal with it?

[daltontrees]

34 minutes ago, Sutton said:

I cant dispute common law nor CA regulation particularly as this is your specialty and you give sound advice for forum users all the time.

 

Besides, I can't even differentiate between Kevin's subtle distinction of justice for the righteous and principled wealth because, to my mind, few would get legal aid on tree nuisance cases so seeking justice necessarily means you need a surplus of cash, balls, etc so that wealth and getting justice in the legal world of trees amounts to the same thing- as I say, I defer to those with the experienced expertise.

 

That said, would it be fair to say the following:

Loss of light from overhanging tree branches from a neighbour's garden or encroaching roots below ground from this hypothetical tree would be classed as a mere nuisance (you'll know the correct term). But when a nuisance becomes severe then complying with regulation and submitting to process can be ignored because any delay could make the situation worse.

That is, I'm asking if time is the only factor that supports lawful abatement which sidesteps applications to the CA, where, for instance a branch is (evaluated by an expert witness with documentary evidence and) deemed an immediate risk and preventable action must be taken asap- i.e. get a tree surgeon to deal with it?

I don't have a monopoly on being right. An apprehension about being wrong causes me to double-check things before committing to advice. But I do like helping people (and their contractors) understand their rights and obligations. It's good for society, and we sure as hell need a better society.

For sure we live in a society where money can buy you justice or even help you avoid it. But in the situation of using the statutory exemptions it need cost nothing.

Being pedantic (I always am) the right reminology is this -

Basic level. 'Encroachment' is roots or branches crossing into another's property. It isn't the same as 'nuisance'.

The next level up is 'nuisance' when the encroachment is preventing somebody making use of their own property. It may not be serious enough for a court to act on it, if so it is not 'actionable nuisance'. There is a right to self-abatement, without notice and generally without consequence.

Next level up is 'actionable nuisance' which is so severe that a court would order the tree owner to abate it or make the tree owner pay back the cost of the neighbour dealing with it. It may or may not include an injunction/interdict preventing the tree owner from letting it happen again.

In the CA/TPO context (and I think this is a really useful principle to understand) if exemptions are available they should be used; applying to the Council is NOT an appropriate alternative. Councils should reject applications or notifications that seek approval to use powers that are already available to people. In the 'nuisance' context it has nothing to do with how urgent it is (but tree nuisance is rarely urgent).

Decide if it's a nuisance, or about to become it. If it is, deal with it. If it isn't, notify or apply. Time is not a factor.

 

The 'risk' exemption is different. If it is 'urgently necessary to remove an immediate risk of serious harm', deal with it. If it's not (e.g. less urgent, less serious, alternative risk measures are available), notify or apply.

I hope that helps.

To refere back to earlier posts by me, the law is still slightly unclear on whther the 'nuisance' exemption is only for 'actionable nuisance'. But, teh 'revention' option appears to answer that question i.e. it doesn't need to be that serious for the exemption to be useable.

 

The super-summary is that time is only a factor upon deciding if the risk is 'immediate'.   

And, I might be wrong. I hope not.

[Sutton]

1 hour ago, daltontrees said:

 Being pedantic (I always am) the right terminology is this -

Excellent refinement of terms. Pedantry is most welcome when it comes to the law!