Right to prune branches when it destabilizes tree.

[john87]

1 hour ago, Will C said:

 Am I reading this right that a tpo/ con area is completely irrelevant if you are abating a nuisance?
Therefore you could completely muller a decent protected tree providing you stopped at the boundary line with no TPO permission? 

Yes, the local authority cannot force a person to put up with a nuisance on their land. [no matter what they all claim on their websites]

Here you are;

 

john..

Edited February 22 by john87

[Dan Maynard]

I'd check that carefully, looks out of date to me as I think dead/dying has been removed. There have been amendments to the 1990 act.

 

[daltontrees]

12 hours ago, Dan Maynard said:

Is that not an 'actionable' nuisance? Phrase rings a bell from previous discussions.

There is one case that indicates tha the nuisance needs to be 'actionable' but the author of Law of Trees Forests and Hedges (Mynors) believes that this will be challenges successfully in time and show that there is no 'actionable' test to be applied.

It stands to reason. You can 'prevent' a nuisance, which means stopping it before it becomes a nuisance (therefore it is quite minor) and you can 'abate' a nuisance once it is not so minor any more, so why would the law create an in-betweeen situation where it is beyond minor but not bad enough to be major (actionable)?

One you get in to the concept of 'actionable' it is impossible to get any clear sense of what is supposedly allowed. It is literally a single word, without any useful definition, except perhaps to indicate that a court 'action' could be raised. It does not clarify whether the 'action' would have to be succesful.

I'll go into that a bit more if you want, but it's murky. And it would just be my reading of the law, which although obsessive carries no authority on the subject.

The most honest outcome would be for the industry to conclude that we know tha twe don't know. That's way better than polarised views based on glib interpretations and half-remembered observations on both sides.

[daltontrees]

10 hours ago, Will C said:

 Am I reading this right that a tpo/ con area is completely irrelevant if you are abating a nuisance?
Therefore you could completely muller a decent protected tree providing you stopped at the boundary line with no TPO permission? 

Not completely, my view is that there would have to be reasons for the work i.e. prevention or removal of an actiual nuisance (in the legal sense of the word).

[daltontrees]

9 hours ago, john87 said:

Yes, the local authority cannot force a person to put up with a nuisance on their land. [no matter what they all claim on their websites]

Here you are;

 

john..

That part of the Act was repealed in 2008.

[john87]

6 hours ago, Dan Maynard said:

I'd check that carefully, looks out of date to me as I think dead/dying has been removed. There have been amendments to the 1990 act.

 

 

Could be, yes. I just looked at the first version of the act that popped up!

john.

[john87]

5 hours ago, daltontrees said:

There is one case that indicates tha the nuisance needs to be 'actionable' but the author of Law of Trees Forests and Hedges (Mynors) believes that this will be challenges successfully in time and show that there is no 'actionable' test to be applied.

It stands to reason. You can 'prevent' a nuisance, which means stopping it before it becomes a nuisance (therefore it is quite minor) and you can 'abate' a nuisance once it is not so minor any more, so why would the law create an in-betweeen situation where it is beyond minor but not bad enough to be major (actionable)?

One you get in to the concept of 'actionable' it is impossible to get any clear sense of what is supposedly allowed. It is literally a single word, without any useful definition, except perhaps to indicate that a court 'action' could be raised. It does not clarify whether the 'action' would have to be succesful.

I'll go into that a bit more if you want, but it's murky. And it would just be my reading of the law, which although obsessive carries no authority on the subject.

The most honest outcome would be for the industry to conclude that we know tha twe don't know. That's way better than polarised views based on glib interpretations and half-remembered observations on both sides.

Yes, i would love to hear more.. I too believe that "actionable" means nothing at all. There is a principle that; "the law does not concern itself with trifles" well in that case, you have the right to self abatement then and in the case law that i have read, the ability or right to self abatement arose specifically to deal with matters of nuisance that the courts would not be interested in.

 

For judges to try to "water down" as to what THEY think consttutes a nuisance is wrong. It attacks [as you put it] the very concept of the ownership of land.

 

Have a read of this, see what you make of it..

 

john..

CD6.16 Perrin Appeal Judgement.pdf

[daltontrees]

14 minutes ago, john87 said:

Yes, i would love to hear more.. I too believe that "actionable" means nothing at all. There is a principle that; "the law does not concern itself with trifles" well in that case, you have the right to self abatement then and in the case law that i have read, the ability or right to self abatement arose specifically to deal with matters of nuisance that the courts would not be interested in.

 

For judges to try to "water down" as to what THEY think consttutes a nuisance is wrong. It attacks [as you put it] the very concept of the ownership of land.

 

Have a read of this, see what you make of it..

 

john..

CD6.16 Perrin Appeal Judgement.pdf 135.04 kB · 0 downloads

I am more than familiar with Perrin, and it casts such doubt on the idea that the nuisance needs to be actionable that personally I find that the 'actionable' test is fictitious.  So did the judges.

[john87]

1 hour ago, daltontrees said:

I am more than familiar with Perrin, and it casts such doubt on the idea that the nuisance needs to be actionable that personally I find that the 'actionable' test is fictitious.  So did the judges.

What you think of this?? here is what the Welsh government think. Surely the two paragraphs contradict with "26" being complete nonsense since the roots/branches constitute a nuisance so see the preceding paragraph. [25]

 

john.

[daltontrees]

25 deals with TPO restrictions. 26 deals with common law rights. I don't really see a contradiction.

 

There might not have been a Welsh high court decision but the House of Lords in Lemmon v Webb and the Kings Bench in Earl of Lonsdale v Nelson.

 

The Welsh parliament has stated its intention to get rid of the statutory nuisance exemption if and when it ever gets around to producing its own planning Act (been in discussion for 5 years now). It's pretty naive for a few reasons.