The Comedy Of Errors

[Gary Prentice]

Aaahhh..?!!?

SO the situation is the same as if there was a traceable owner who had said "you can't touch my tree, ever", is it not? The TPO seems to be a side issue, a statutory prevention (if and when it is validated) to sit alongside the ownership prevention.

 

Correct. Although the situation is more difficult, in that there is no-one to sue to abate the nuisance/trespass. I'm wondering what then occurs in the future, when the tree becomes diseased/decayed.

 

This situation can't be that uncommon, but I'm unaware of any legal precedent on what can be done.

[Gary Prentice]

It does bring into question as to if the order has ever been confirmed ?

 

I'm not sure when the 201 section was applied. Thanks for posting the section on the implementation. I would assume that in the T&C Act(s) itself there must be something to cover unknown title though, as Treequip is saying. I'll check with planning.

[Pumpy]

Client has never had the use of this land, nor fenced it etc. After having a quick look at the garden law site I wouldn't be that happy to promote it. If the roots were severed, legally or not (bearing in mind the consent already given) who is liable when the tree falls into the neighbours garden or onto his conservatory? I don,t think it can be as simple as you can just cut invading roots, whether the tree dies or not( as garden law appears to claim)

 

I meant in relation to exploring adverse possession, with no apparent owner I'd be tempted to move the fence line and claim the land 12yrs hence, but it needs some research. I was not suggesting cutting the roots, presumably client would want to retain the TPO'd tree and just have it pruned if he could move the fence.

 

The council are unlikely to want to spend on the legals to claim the land as they are then responsible for maintenance, either way the client either gets the land, or identifies a "new" owner responsible for the maintenance.

[HCR]

I meant in relation to exploring adverse possession, with no apparent owner I'd be tempted to move the fence line and claim the land 12yrs hence, but it needs some research. I was not suggesting cutting the roots, presumably client would want to retain the TPO'd tree and just have it pruned if he could move the fence.

 

The council are unlikely to want to spend on the legals to claim the land as they are then responsible for maintenance, either way the client either gets the land, or identifies a "new" owner responsible for the maintenance.

 

Definitely. Find out when compulsory registration came in in that area as well - if the land changed hands since 1990 it will definitely be registered, if before then it depends and it might not be. When were the houses built?

 

There's a fair chance that the LPA does own it, but if it was never registered and they can't find any records, no one will ever know. Extra bits from development most often go to the LPA as part of the handover.

 

But no rules are set in stone and it may even still belong to the developer, who may be dead/not trading any more/merged with other companies etc etc etc. All paperwork lost and no one wanting what is to most people a pretty useless plot of land.

 

Adverse title is the way forward, though it might be worth getting a little advice from a solicitor - though to be honest everything he needs to know can be found on the internet.

 

Applications for first registration made by the owner in person (Public Guide 13) - Land Registry for England and Wales

[Jesse]

I'm not sure when the 201 section was applied. Thanks for posting the section on the implementation. I would assume that in the T&C Act(s) itself there must be something to cover unknown title though, as Treequip is saying. I'll check with planning.

 

10.9 As a general rule it is no defence for the defendent to claim ignorance of the existence of a TPO. Nevertheless, the LPA should ensure that a VALID TPO exists, that the tree was CLEARLY protected by it and that they HAVE carried out their statutory functions PROPERLY. In one case, the defendant escaped prosecution because his ignorance of a TPO was in fact due to the LPA's failure to place a copy of it for inspection as required by the Regulations.

I think your time would be well spent to go and inspect all paper work relating to the order yourself, they should provide a private room for you to go through all the paper work which should provide your answers, your TO is unlikely to be so methodical, make notes of any errors or ask for copy's, this way when you do have your site visit with him (the Tree Officer) you will already have all the information to hand for clarification. Explain your intentions and get him to confirm in writing what ever is agreed or just the outcome of the meeting as discussed .

[Gary Prentice]

I meant in relation to exploring adverse possession, with no apparent owner I'd be tempted to move the fence line and claim the land 12yrs hence, but it needs some research. I was not suggesting cutting the roots, presumably client would want to retain the TPO'd tree and just have it pruned if he could move the fence.

 

The council are unlikely to want to spend on the legals to claim the land as they are then responsible for maintenance, either way the client either gets the land, or identifies a "new" owner responsible for the maintenance.

 

Sorry, I got a bit sidetracked on the roots section of the website, but didn't particularly think that was what you were proposing. I'm tempted to put forward that idea of just claiming the land, but hold off on any tree work for a year or two.

[Gary Prentice]

Definitely. Find out when compulsory registration came in in that area as well - if the land changed hands since 1990 it will definitely be registered, if before then it depends and it might not be. When were the houses built?

 

There's a fair chance that the LPA does own it, but if it was never registered and they can't find any records, no one will ever know. Extra bits from development most often go to the LPA as part of the handover.

 

But no rules are set in stone and it may even still belong to the developer, who may be dead/not trading any more/merged with other companies etc etc etc. All paperwork lost and no one wanting what is to most people a pretty useless plot of land.

 

Adverse title is the way forward, though it might be worth getting a little advice from a solicitor - though to be honest everything he needs to know can be found on the internet.

 

Applications for first registration made by the owner in person (Public Guide 13) - Land Registry for England and Wales

 

I think the estate will be pre 1990, but have no idea when the owner bought it. From what I've been informed, the original builders plans show this parcel outside the estate and the councils plans don't extend to the clients boundary.

 

The land is useless to everyone, being landlocked, apart from a neighboring property. Its roughly triangular, with two fencelines (Clients and Neighbours) meeting at right angles. Third side is unfenced but borders onto a large grass verge with council owned trees.

 

I wish the council had just said they had maintained it, planted trees on it, for long enough to claim it. Then sold it to him.

[Gary Prentice]

10.9 As a general rule it is no defence for the defendent to claim ignorance of the existence of a TPO. Nevertheless, the LPA should ensure that a VALID TPO exists, that the tree was CLEARLY protected by it and that they HAVE carried out their statutory functions PROPERLY. In one case, the defendant escaped prosecution because his ignorance of a TPO was in fact due to the LPA's failure to place a copy of it for inspection as required by the Regulations.

 

I think your time would be well spent to go and inspect all paper work relating to the order yourself, they should provide a private room for you to go through all the paper work which should provide your answers, your TO is unlikely to be so methodical, make notes of any errors or ask for copy's, this way when you do have your site visit with him (the Tree Officer) you will already have all the information to hand for clarification. Explain your intentions and get him to confirm in writing what ever is agreed or just the outcome of the meeting as discussed .

 

I've spent many an afternoon in planning to prove they haven't. Worse case was an unconfirmed order for eight years, during which they'd given two or three pruning consents.

 

We have a decent relationship with the local authority, we can just chat about the issue and they can re-serve if necessary. I'm coming to the conclusion that the job isn't worth the hassle. I can just imagine being half way through it when the landowner turns up, spitting napalm and going ballistic.

 

If the client wants to fence it, and tell me he owns the land, at least I have some defence

[Jesse]

I've spent many an afternoon in planning to prove they haven't. Worse case was an unconfirmed order for eight years, during which they'd given two or three pruning consents.

 

We have a decent relationship with the local authority, we can just chat about the issue and they can re-serve if necessary. I'm coming to the conclusion that the job isn't worth the hassle. I can just imagine being half way through it when the landowner turns up, spitting napalm and going ballistic.

 

If the client wants to fence it, and tell me he owns the land, at least I have some defence

 

I agree

[fagus]

I have dealt with a few of these mostly re effect on garden walls. The hidden agenda was to get rid of the tree. There is often a simple remedy i.e amend the wall or fence. I used to recommend a slight wall reconstruction with the addition of lintel to over span the roots. A less expensive solution to removing the tree.