Boundary multi stem tree

[openspaceman]

3 hours ago, Mick Dempsey said:

11 hours ago, Barti said:

He still is of the view that it’s a jointly owned tree and we both have to agree to everything….

Well you can waste your time trying to disabuse him of that view, or do it anyway.

Yes the right to cut anything overhanging your land trumps all else, except statutory protections.

Edited June 8, 2023 by openspaceman
spellchucked

[Canal Navvy]

14 minutes ago, openspaceman said:

Yes the right to cut anything overhanging your land trumps all else, except statuary protections.

Has that ever been tested in court ?

Surely planning laws don't have the powers to override preexisting laws of property 🤔

[openspaceman]

1 hour ago, Canal Navvy said:

Has that ever been tested in court ?

Surely planning laws don't have the powers to override preexisting laws of property 🤔

Which bit? There is quite old case law about removing overhanging branches (without notice) dating back nearly 200 years.

 

As to the debate about whether a TPO can be ignored in the case of an actionable nuisance has been tested in court yet, I didn't think so but the barrister who wrote "Law of Trees, Forests and Hedges"  appeared to suggest it was so. I can't afford the book let alone the legal costs if he is wrong 😉

[JAG63]

Tree officers round my patch still require an application for over the boundary pruning if it's protected.

 

[Canal Navvy]

It was Charles Mynors offer to act as an expert witness pro bono to anyone brave enough to take it to court that caught my attention. I've heard that it has got close before but the planning authority withdrew the case so it remains untested. 

[Puffingbilly413]

12 hours ago, openspaceman said:

Which bit? There is quite old case law about removing overhanging branches (without notice) dating back nearly 200 years.

 

As to the debate about whether a TPO can be ignored in the case of an actionable nuisance has been tested in court yet, I didn't think so but the barrister who wrote "Law of Trees, Forests and Hedges"  appeared to suggest it was so. I can't afford the book let alone the legal costs if he is wrong 😉

Taken from the .gov website. Detail is in the Town and Country Planning Act etc.

 

"What is the exception for work to prevent or abate a nuisance?

 

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.

 

When deciding what is necessary to prevent or abate a nuisance, tree owners and, where applicable, their neighbours and local authorities, should consider whether steps other than tree work might be taken. For example, there may be engineering solutions for structural damage to buildings."

 

I believe Mynors reckoned preventing an actionable nuisance was didn't necessarily mean to prevent damage but also other circumstances but I'd need to check that.

Edited June 9, 2023 by Puffingbilly413

[john87]

On 04/06/2023 at 08:54, Barti said:

is there anything in writing online that states you can cut an overhanging tree trunk? Everything just talks about branches and roots 

If it is on your property, you can do as you like with it. If it unbalances the rest of the tree, not your problem. Nothing the neighbour can do, if they want to waste their money trying, let them get on with it. TAKE LOTS OF PHOTOS FIRST.

 

john..

[daltontrees]

On 09/06/2023 at 10:28, Puffingbilly413 said:

Taken from the .gov website. Detail is in the Town and Country Planning Act etc.

 

"What is the exception for work to prevent or abate a nuisance?

 

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.

 

When deciding what is necessary to prevent or abate a nuisance, tree owners and, where applicable, their neighbours and local authorities, should consider whether steps other than tree work might be taken. For example, there may be engineering solutions for structural damage to buildings."

 

I believe Mynors reckoned preventing an actionable nuisance was didn't necessarily mean to prevent damage but also other circumstances but I'd need to check that.

I agree, with one addendum. The law on nuisance has been clarified by a couple of recent cases (network rail v williams and waistell and fearn v tate) such that it is clearer than ever that nuisance isn't just damage, it can be any infringement of property rights. That would include encroachment.

 

I am also pretty much convinced that Mynors is right. Everyone fixates on whether the action as to be so serious that it is 'actionable' (i.e. so serious that a court wouldn't throw it out as trivial) but the Act says 'prevent or...', which plainly means that it doesn't even need to be serious enough to be a nuisance (yet). I think there is an important distinction to be made, and it is mentioned in the case that Mynors refers to as casting doubt about the 'actionable' test. An 'action' could be raised to prevent nuisance. Therefore the 'actionable' test is not whether there is severe nuisance but whether rights to property enjoyment are or will imminently be infringed.

 

The cost of courht action is so high that this matter will probably only get thrashed out when there is a serious subsidence case affecting insurers and property values.

[daltontrees]

16 hours ago, john87 said:

If it is on your property, you can do as you like with it. If it unbalances the rest of the tree, not your problem. Nothing the neighbour can do, if they want to waste their money trying, let them get on with it. TAKE LOTS OF PHOTOS FIRST.

 

john..

I think you are taking this to an unjustifiable extreme. If someone cuts back a neighbour's tree to such a  degree that it almost immediately falls over and causes harm or damage before the tree owner has had the chance to apprehend the risk and reduce it, the cutter would I believe be guilty of negligence. 

[john87]

13 hours ago, daltontrees said:

I think you are taking this to an unjustifiable extreme. If someone cuts back a neighbour's tree to such a  degree that it almost immediately falls over and causes harm or damage before the tree owner has had the chance to apprehend the risk and reduce it, the cutter would I believe be guilty of negligence. 

Oh yes, i agree with that, you would have to warn them that this was a possibility, in writing i would. You would i believe, have to give them a chance to mitigate against this risk, or it would indeed be negligence i would think..

 

john..