Abating Nuisance

[kevinjohnsonmbe]

A really good read! I doff my cap in respect!!

[kevinjohnsonmbe]

To all

[Gary Prentice]

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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Andy

In an earlier post you also referred to the loophole. I did sit down to reply, but unfortunately my written skills lack the clarity of some other posters, so I decided not to reply. Too many years on the tools..

 

To be honest, I care little if the tree stays or goes, there's a few hundred pounds in the job. The application and appeal paperwork are all pro bono.

 

Am I attempting to exploit a loophole or apply a legal exemption of the T&C? When the exemption appears to be applied differently from one LPA to another, how does the humble tree surgeon know where he stands? I don't personally like to admit to clients that I don't know, or advise them to seek legal advice. It's nonsense. Too often, after researching files in the planning department and reading Law, I've discovered abuses of the system, sometimes obviously with foreknowledge but also due to misapplication.

 

Ideally, after the senior TO visits the site this week we get a reversal of the decision. But I'm happy to go to appeal in an attempt to clarify the situation. Does or should it matter if the tree has to be removed? The TPO is made for the benefit of all, but should that overall the legal rights of one?

 

Perrin V Northants may appear to have little bearing on my case, but it would appear to hold the key to the questions that are being raised. Bearing in mind, that the original basis of the case was an application - by the neighbour, in agreement with and supported by the owners - to the Local Authority to remove the tree. The oak was 14m from the affected property, so root pruning and a barrier were a viable alternative. If my recollection is correct, it may not be, another closer tree was allowed to be removed.

 

Should it matter, as to the outcome to the tree? (Obviously there would be other issues if the owner wished to retain it) The law allows, or appears to allow, the neighbour to protect his property. The degree of damage or threat IMO should be immaterial.

If there is another precedent that addresses this better, I, unfortunately, am unable to find it.

 

Andy, I hope this has come across appropriately, without any assumption of malice. As it is written without such, I greatly appreciate your input and views and have given them a great deal of thought. Thank you.

Edited July 9, 2013 by Gary Prentice

[Gary Prentice]

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.......

 

 

Thinking about this, which I have been a lot, P V Northants is the reason, mainly, that LA's seek to impose alternative engineering solutions. Chadwick, one of the three Appeal Court Judges, went to great lengths to say that works to the tree need not necessarily be required.

[daltontrees]

Thinking about this, which I have been a lot, P V Northants is the reason, mainly, that LA's seek to impose alternative engineering solutions. Chadwick, one of the three Appeal Court Judges, went to great lengths to say that works to the tree need not necessarily be required.

 

I have just read it again, it is very difficult, I think I have confused in my mind what was quoted by teh original Judge and what Judge Chadwick said in disagreement on appeal. It does appear competent for the Council to refuse on the basis that alternative solutions exist to abate a nuisance. There does appear to be a rider, though, that 'necessary' does not mean is the only solution left when an infite amount of money and ingenuity and disruption will not provide a solution that does not involve touching the tree or its roots'.

 

In Perrin it seems that underepinning, albeit at considerable expense which then might have been recoverable by the neighbour from the owner, was a possible and reasonable alternative to removing the tree. Hence the COuncil's refusal. That seems intuitively correct. But as an alternative to pruning the roots, underpinning seems intuitively disproportionalte if the root pruning would not materially damage the tree or its vitality and amenity.

 

If your client's neighbour's drive cannot be fixed (without root removal) other than by breaching the dampproof course, is the neighbour to consider jacking the house up to avoid the problem? That really would be disproportionate. And if it were the only solution he might seek reimbursement. OK, I knmow this is exaggeration for effect, but I do it deliberately to make apoint. Perrin et al differed as I see it in a couple of ways. It arose from a refusal of consent to fell, not to prune roots. The tree was of special amenity value. An alternative to felling or root removal existed (i.e. underpinning) within the normal gamut of subsidence solutions. And it was assumed the parties were insured (as indeed they were) and that the cost of the solution was for them at worst indirect.

 

If in the current case a simple cost-efective soulution does exist the Council's refusal seems as I continue to see it technically correct but if the cost is ridiculous (and I would think uninsurable might be a factor too) and the tree is of ordinary amenity value compared to Perrin's then I think that the Perrin case has left the door open for the neighbour to take a different and more ordinary interpretation of necessary than 'cannot be avoided by the application of infinite resources'. Just make sure explanation by you to neighbour is 'without prejudice'.

[Gary Prentice]

I'll have to reread it again, but a couple of points come to mind.

 

Any tree with protection is viewed as having ameniity value, Chadwick elaborated that the very fact of the order meant so and it wouldn't be practical for the aggrieved to assign a value on a sliding scale of how special this was. The Sec of State advises that 'amenity value' must be disregarded when the nuisance exemption is applicable.

 

The senior TO is visiting the property today, so the final decision will be made. I can foresee a long weekend before me. Thanks for your input Jules, this has become a grueling workout for the old brain cells.

[fagus]

In Court remember their Brief will likely ask you-You climb trees and have an arboricultural qualification but you are not a member of the legal profession, am I correct? You say yes. He says- Can you explain therefore why are you giving legal advice.Err .Boom Boom.

It happens.

[Gary Prentice]

In Court remember their Brief will likely ask you-You climb trees and have an arboricultural qualification but you are not a member of the legal profession, am I correct? You say yes. He says- Can you explain therefore why are you giving legal advice.Err .Boom Boom.

It happens.

 

Why would I be in Court?

 

I've acted as an agent in submitting a planning application. After receiving a Refusal Notice I'm continuing to act as an Agent in appealing to the Department of the Secretary of State.

[daltontrees]

Sorry if I picked it up wrong but I thought I had read in the case somewhere that the tree had such high amenity value that it had Article 5 exemption. I thought that meant that the Council could exempt itself from compensation liability and that that had affected the judge's view not in the absolute right-or-wrong of the case but how 'necessary' might be interpreted. I must have got that wrong, and to be honest I am reluctant to re-read it.

 

As for Fagus's comments, fair enough I am always wary of overstepping the mark and giving out advice that I am not qualified to do. However, I would never charge for the advice and would always qualify it by saying that it is only my reading of the situation.

 

It is a cruel facet of society that if you are accused of inadvertently breaching the law, you are judged following minute examination of both sides of the case by not only people qualified in legal matters but experts in it who are exploring new areas of the application of the law before a judge who himself is having to make new law. The parties to this are simply fee-paying bystanders to a process that worlds away from their day to day lives and the understandings of right and wrong that is carried around in the head of the average reasonable person to arm them for the numerous daily situations when they are called upon to jump to the right side of the law. Yet it is they who receive the judgement as if they should have known the law. Ignorantia juris neminem excusat and all that.

So is the tree surgeon or even tree consultant wrong to offer his or her interpretation of the application of the law as it stands? It has been put to me in the past by someone whose opinion I respect (and this makes an interesting juxtaposition to the courtroom scenario ) that if someone was being done for having (in innocence of the law, they claim) a protected tree cut down by you, you would yourself possibly get the brunt of the punishment because the client would reasonably have expected a qualified tree surgeon to have advised them to check for TPOs or CAs and to not proceed without consent/notification because they would be breaking the law. So does the tree surgeon advise or not? Of course he does. Should he advise on moot points. Definitely not! Should he take opportunities to learn from situations like this as he goes along. It isn't obligatory, but I certainly do whenever I can. And in the future I will feel more confident to advise to a greater extent than I would before. Get an average family lawyer involved to advise from a standing start on a specialised area of law like this and you had better brace yourself for a hefty bill. Likewise an expert lawyer, only the bill will come slightly sooner.

 

I'm not agreeing or disagreeing with anyone here, I just feel sympathy for the common man who is caught not knowing his rights and wrongs on a rarely encountered specialist subject that has defied experts for decades, and who turns to someone whose daily business is trees for some pragmatic, let's call it, guidance.

 

I also see the point of view of the Council Tree Officer in trying to avoid the avoidable damage or loss of a tree. And I see the perspective of your average helpful, decent tree surgeon. But most of all I see an owner, a bewildered citized, whose tree is damaging his owner's tree and he can't do anything about it nor can his neighbour. The State has expropriated the tree for the public and left one or both of them to find an expensive engineering solution without compensation. Where's the justice in that?

 

I am now off on a slight variation of my previous thoughts on the best thing to do, which previously relied on the root pruning being 'necessary' i.e where no other reasonably priced solution is available and now in light of Perren et al relying on 'necessary' meaning no other solution is available, regardless of cost. I think the latter is a breach of natural justice, but I won't get into that any more than I already have. But would it be appropriate at this stage to simplify the matter by the neighbour reapplying to cut the roots? If Council refuses, otherwise unrecoverable compensation for expensive alternative engineering solution could be payable? If it approves, then...

 

PS Don't quote me on it I am only a citizen and therefore unqualified to advise on the law of our land.

[Andy Clark]

Andy

In an earlier post you also referred to the loophole. I did sit down to reply, but unfortunately my written skills lack the clarity of some other posters, so I decided not to reply. Too many years on the tools..

 

To be honest, I care little if the tree stays or goes, there's a few hundred pounds in the job. The application and appeal paperwork are all pro bono.

 

Am I attempting to exploit a loophole or apply a legal exemption of the T&C? When the exemption appears to be applied differently from one LPA to another, how does the humble tree surgeon know where he stands? I don't personally like to admit to clients that I don't know, or advise them to seek legal advice. It's nonsense. Too often, after researching files in the planning department and reading Law, I've discovered abuses of the system, sometimes obviously with foreknowledge but also due to misapplication.

 

Ideally, after the senior TO visits the site this week we get a reversal of the decision. But I'm happy to go to appeal in an attempt to clarify the situation. Does or should it matter if the tree has to be removed? The TPO is made for the benefit of all, but should that overall the legal rights of one?

 

Perrin V Northants may appear to have little bearing on my case, but it would appear to hold the key to the questions that are being raised. Bearing in mind, that the original basis of the case was an application - by the neighbour, in agreement with and supported by the owners - to the Local Authority to remove the tree. The oak was 14m from the affected property, so root pruning and a barrier were a viable alternative. If my recollection is correct, it may not be, another closer tree was allowed to be removed.

 

Should it matter, as to the outcome to the tree? (Obviously there would be other issues if the owner wished to retain it) The law allows, or appears to allow, the neighbour to protect his property. The degree of damage or threat IMO should be immaterial.

If there is another precedent that addresses this better, I, unfortunately, am unable to find it.

 

Andy, I hope this has come across appropriately, without any assumption of malice. As it is written without such, I greatly appreciate your input and views and have given them a great deal of thought. Thank you.

 

 

Dude, I've been trying all week to get some free time at a pc to sit down and write a worthy response to your post, but it ain't been so easy so apologies for the half RSed reply from my phone.......

 

Firstly, don't worry, no malice/bad feeling/ill will or anything of the sort taken. I learned not to take the Arb world personally a long time ago, and at the end of the day, if you can't have a good old debate on these here hallowed pages, well then what's the point eh?

 

The thing for me in all of this, and this is coming from the background as a time served climber, is that I'm well aware how easy it is to hammer a TO and think they're nothing more than idioitic bureaucrats who became a TO because they were rubbish at climbing, and couldn't actually tell one end of a good quality reduction from a slap round the chops Lol. (Be honest, we all know we've all thought it at some point or another!).

 

But at the end of the day, we are all here "hopefully" for the same reasons....... To do the best that we can regarding the tree in question, dictated by our own specific differing standpoint in the equation. Fair comment?

 

From your perspective, for example, you wanna do the best by your client, and walk away leaving a happy customer. From the TO's perspective though, this is just another in a big long list of applications, most of which will involve pruning a tree in order to abate a nuisance of some sort or another..... Tree blocking satellite reception, tree blocking out sunlight, leaves clogging up my gutters, tree causing subsidence, roots lifting my driveway.

 

The problem is though, for you primarily, is that the tree is getting more and more highly regarded, and less and less seen as the easy target. The pressures on the TO these days to protect the urban tree stock is increasing, but yet equally by contrast, our human nature demands and expectation for an improved quality of life are getting greater.

 

So what do we do?

 

Well, for a starters we now have such things as The Joint Mitigation Protocol, primarily in relation to subsidence. That itself set a fairly clear precedence in terms of how we manage trees vs the cost implications of any damage they cause. Calculate the monetary amenity value of the tree using CAVAT, compare that to the cost of repair, and if the cost outweighs the value, then fell the tree. If not, and the tree is of a higher value, then retain the tree and pay for the repair. Simples.

 

And that mentality really is getting more and more accepted (and pushed) across the board......

 

Granted, we don't know too many details about the tree itself in this instance as the majority of the focus has been on the driveway, but for arguments sake, let's just say that it could stand there quite happily for another 50-100 years if left unmolested. THAT's what the TO has to consider..... And on that basis alone, a couple of grand for repairing a driveway is pretty negligible. He/she sure as hell ain't gonna let it be felled without AT LEAST exploring an engineering solution to the problem, that's for sure.

 

And that's just the TCPAct stuff...... Get into the depths of Occ liability, and Nuisance and Negligence etc, and yes, the acts may be different, but the outcome is still the same and the Judge will still expect someone to have been reasonable and acted reasonably.

 

I mean take something else for example.....

 

The specific act of abating a nuisance - let's not forget that one can ONLY conduct such works as is necessary to abate said nuisance. One cannot have a free reign to do MORE than is necessary.

 

So on that basis alone, the question arises that do ALL the roots NEED to be cut in order to repair the drive? Or can just one or two surface roots be removed, thus negating the risk of de-stabilisation? Has that even been explored? Has anyone looked at the new fangled Tree Radar and tried to map the root system to find? Granted it's a cost, but it's a cost that can be recouped as compensation.

Ok, Cellweb may on face value take the driveway above the damp course, but has anyone dug trial holes and actually assessed that as being fact? Has anyone even rung the Cellweb folk and got them to come out and take a look? Has anyone looked at the possibility of re-routing the driveway further away from the tree? Or making it narrower? Or re-laying the driveway in gravel/pea single, or block paving and retaining the roots as a feature?

 

 

Ok, these are all rhetorical questions in the context of this thread and I'm not expecting an answer to any of them, but the point I'm trying to make is that these are all questions that can/will be asked. These ARE the things that a TO will likely expect to see, before they start rolling over on the consent.

 

They're also things that a Judge is likely to expect evidence of, should the matter ever go before the Courts if you client goes ahead without consent and then gets his collar felt by the LPA for possible breech of the TPO.

 

So when I say "loop hole exploitation" I guess what I'm trying to say is that yes, you may very well find a way to wangle an exemption by spending hours scouring through case law and legislation, but 1) don't forget the question of "context" when reading them and head off on a wild goose chase, and 2) don't put all your eggs in one basket and forget to cover the paper trail of evidence.

 

Make more sense? .

 

 

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