Abating Nuisance

[Gary Prentice]

Pinn and a lot of arborists these days are tree hungers want to save everything

 

Hope not as the Planning officer refuses to about turn on this,

 

hi ho hi ho its off to appeal we go.......

[daltontrees]

Oh well, you tried. Good luck on appeal, I believe the legislation, case law and official guidance are all on your side if (sorry, when) you put the case plainly. The weakest point might be whether the tree would be definitely unsafe after root removal, only you have examined the tree. I thought the Council hasn't even argued against that though, just that the driveway could be repaired.

[Gary Prentice]

I'm getting to the stage of not being sure. This is from Judge Chadwick, Perrin V Northampton at Appeal

 

53. It is pertinent to have in mind that nothing in section 198(6)(b) of the 1990 Act authorises B to go onto A’s land for the purpose of preventing or abating a nuisance. Save in exceptional circumstances, B’s remedy in self help is limited, under the general law, to cutting roots and branches on his own land: as Lord Cooke of Thorndon pointed out in Delaware Mansions Limited v Westminster City Council [2001] UKHL 55, [12]; [2002] 1 AC 321, 328B-C. In so far as the nuisance cannot be abated or prevented by cutting roots or branches on B’s land or (by agreement with A) by operations to the tree on A’s land, B’s remedies (under the general law) are (i) to seek an injunction requiring A to abate or prevent the nuisance by something done on A’s land (which might be the cutting down, uprooting, topping or lopping of the tree), (ii) to seek an order for damages against A in respect of the damage suffered (including the prospective cost of remedial works) or (iii) to carry out remedial or preventative works on his own land and seek to recover the costs of those works from A: see the Delaware Mansions case. Absent the ability to rely on section 198(6)(b) of the 1990 Act, the existence of a tree preservation order may restrict what A can do to the tree on his own land; and so may restrict B’s ability to obtain an injunction. But there is nothing in section 198, as it seems to me, which alters B’s remedies under heads (ii) or (iii). There is no substance in the argument that, unless section 198(6)(b) of the 1998 Act is interpreted in such a way that it is simple for B to decide whether he can cut down a protected tree, B will be deprived of an effective remedy.

54. By restricting what A can do to the tree on his own land, a tree preservation order may restrict A’s ability to abate or prevent the nuisance on B’s land. In that context, it may be said that there is a need for section 198(6)(b) of the 1990 Act to be interpreted in such a way that it is simple for A to decide whether he can cut down a protected tree; so that he can avoid or limit his liability to B for damages under heads (ii) and (iii). But it is necessary to keep in mind that A cannot rely on section 198(6)(b) in order to prevent or abate damage to his own property. It is not difficult to envisage circumstances in which the same protected tree causes subsidence damage both to A’s house and to B’s house. Parliament plainly intended that, in such a case and subject to obtaining the consent of, or compensation from, the local planning authority, A is left to bear his own loss: a risk which, in the ordinary way, he will cover by insurance. In those circumstances it is not self-evident why Parliament should have wished to encourage A to carry out operations to the tree in order to abate or prevent damage to B’s house, so relieving A from his liability in damages. It is difficult to see why – subject (again) to obtaining the consent of, or compensation from, the local planning authority – Parliament was not content that A should be left to bear that loss also: a risk which, again in the ordinary way, he will cover by insurance. So although it may be said that there is a need for section 198(6)(b) to be interpreted in such a way that it is simple for A to decide whether he can cut down a protected tree – and so avoid or limit his liability to B - there is no reason to think that Parliament had that need in mind when enacting section 198(6)(b) of the 1990 Act (and its statutory predecessors) in the terms that it did.

 

 

This reads to me that the neighbour may not be able to get an injunction for abatement, (if he so wished) but could claim damages - ordinary covered by insurance- but reclaimable from the LA.

 

The text in green suggests that he is able to resort to self-help, but lacks clarity as to the extent.

Edited July 3, 2013 by Gary Prentice

[kevinjohnsonmbe]

Tough read!

[Gary Prentice]

Tough read!

 

Blinding headache after reading the initial proceedings in the Construction and Technological High Court too

[daltontrees]

It took two reads, but I think I get it. The judgement is immensely helpful.

 

Contrary to what you say (and assuming A is your client and B is the neighbour) it is very clear now to me (thanks to the court filling in the very blanks that we have been debating) that your client's neighbour can remove the roots as long as he doesn't rely on the law of nuisance or the TPO law to get access to your client's land to do so. That is the first point. Your neighbour can cut the roots from his side, with impunity, as long as they are causing damage and therfore constitute a nuisance.

 

The next step to consider is whether your client can rely onm the TPO laws to cut the roots from his own side with impunity to abate the nuisance to the neighbour. Again the judgement seems very clear, he cannot.

 

All of this is what we have suspected all along. Accepting the neighbour's clear rights and the client's clear restrictions, the hypothetical questions must be answered (i) is it reasonable for the Council to refuse an application to remove a tree that will be dangerous (and you would have to be satisfied in that regard) after the neighbour has removed the roots and support from his side and (ii) was it reasonable for the Council to refuse the application for the reasons it did?

 

I have before given my tupppenceworth that the refusal might be technically correct but churlish. I still think that might be the case and partly for me answers the first question (which will be the essence of the appeal debate if your client appeals). I think the answer to the second question has to be no, the Council has no locus at law to interfere with the neighbour's absolute right to abate the nuisance, and the TPO laws do not give the Council any additional locus to interfere or prosecute or to say how he should accommodate the nuisance.

 

So what can be done. The neighbour can remove the roots. He cannot be stopped or prosecuted. The tree will (if you are satisfied in this respect) be dangerous. It can then either be removed by your client with statutory immunity from prosecution or be the subject of a second fresh TPO application. If the second one is refused, the Council is responsible for compensation for damage caused by the falling tree.

 

The dilemma is brought into clear focus before a second application is made. If you are satisfieds that the tree, after root removal, is dangerous you should tell your client and recommend he exercises his right to remove it without further consent. Conversely if you are not satisfied, then you should apply and give the Council the option to refuse and to take on compensation responsibility (but only to the extent that damage was foreseeable and couldn't be mitigated by your client in other ways) or to approve removal if it concludes that the risk of damage and harm outweighs the public amenity value.

 

Is it not this very matter that has been anticipated and been the reason for the first application? Your client might be frustrated ant a refusal that ignores the inevitable issue, particularly when the Council has misguidedly refused on spurious grounds.

 

You have probably got no obligation to advise the neighbour, but your client would be at liberty to have you explain to the neighbour his position (without prejudice, of course) as regards abatement and immunity from prosecution. If the neighbour then cuts the roots, the tree must go if it's collapse is inevitable and imminent, and should probably be the subject of a second application if it is not imminent.

 

My advice to the client about whether to appeal now would probably depend on the neighbour's immediate intentions as regards root removal. If he plans to cut, the course ahead is reasonably clear. If he does not and plans to tolerate the roots, the problem disappears. If he wants to force your client to abate the nuisance by other means he, well, can't. If he invites you or your client to cut the roots at his yoyur client's expense but on the neighbour's land, the way ahead is just as clear as if the neighbour had wielded the saw, it matters not whose hand cuts, only who instructed it (i.e. the neighbour).

 

I hope my opinion and analysis helps. I long to hear the outcome. If your head was nipping before, I only hope I haven't made it worse.

Edited July 4, 2013 by daltontrees

[daltontrees]

Footnote - having just read more of Perrin v Northampton it is even clearer. One of the reasons I suspect it was appealed and the appeal succeeded was tht thte original judgement ignored the judge's own stated view that the neighbour could abate the nuisance with impunity from TPO prosecution.

[Gary Prentice]

I thank you Jules, You've made me re-read the section I posted above and the concept has become clear.

[Andy Clark]

I hate to say it folks, but I still think this all smats of loophole exploitation and will all end in tears if not careful.

 

I mean P v Northants is being used pretty far out of context to be fair.......

 

Granted my memory of the nitty gritty is pretty cloudy these days, (I was OCA's contracts manager when Dealga and Maggie McQueen were acting on behalf of Perrin at the time of the Appeal) but I was involved in the matter towards the end of the Appeal, and had the delightful pleasure of writing the method statement and overseeing the works for the root pruning......

 

For one, the root pruning works were minor and posed only a negligible loss of any rooting structure - unlike this instance.

 

On top of that, the works were to be undertaken at such a distance from the tree, that there was minimal (if indeed ANY) question of impact on the trees health, let alone any questions over it's stability! - again, unlike this instance.

 

And lastly, we are of course talking about significant subsidence damage, extremely costly to repair, and the consequent effects on the value/fabric of the Perrin property (from memory a beautiful and quaint old detached cottage) - again, no where near comparable to the damage being suffered in this instance.

 

(All of those things to my mind really is why the case went full whack, as there was just no reasonably justifiable way that the LA could/should've refused consent in the first place.... considering the almost zero long term impact on the tree, I don't thing the LA ever had a leg to stand on).

 

PLUS, the best bit....... notwithstanding ANY of the Court proceedings, the LA STILL categorically stipulated that all root pruning works were to be in accordance with NJUG! (being the only best practice doc. in relation to pruning roots). And made damn sure that NJUG was followed to the very last letter! Hessian sacking, hand tools, sterilised tools, the whole 9 yds!

 

 

Ok, on paper, the black and white bare bones of the instance of root severance of a TPO'd Oak tree is the same, but I've gotta say that that really is about as close as it gets by way of similarity.

 

KNOWING that the works WILL pose the tree at a significant risk of collapse, ok, the LA themselves may not have the locus to dictate how your client should abate or suffer the nuisance, but the principles of Law itself do already clearly make that dictation! And we can sit here till kingdom come, and try and nit pick the proceedings and Judgements, but the overarching principles will always stay the same......

 

One is expected to act "reasonably".

 

Tread carefully.

 

 

 

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[daltontrees]

It's not my case but the conclusion I reached from Perrin etc. was that the Judges went out of their way out of necessity (as they sometimes have to do) to define the law and seemed to conclude tha there were underlying intentions in the ststute that were meant for situations like this. Not really loopholes. I though the original poster did te decent thing by asking the Council and it is the COuncil that is hiding behind a technicality to avoid making a more difficult decision. Time no doubt will tell...