Abating Nuisance

[daltontrees]

Gosh, I struggle to keep up with both the English and Scottish legislation and guidance on TPOs, so I ask out of ignorance, is it the case that root investigation costs can be claimed back from the Council? HAs the recent refusal triggered that?

[Andy Clark]

Gosh, I struggle to keep up with both the English and Scottish legislation and guidance on TPOs, so I ask out of ignorance, is it the case that root investigation costs can be claimed back from the Council? HAs the recent refusal triggered that?

 

 

In reference to my comments about the Tree Radar stuff you mean? And the costs being compensatory?

 

Let's not forget we have three parties here, and the resulting chain of liability.

 

Surely ALL reasonable costs would be payable by the tree owner (via insurance) as compensation?

 

 

 

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[Andy Clark]

In reference to my comments about the Tree Radar stuff you mean? And the costs being compensatory?

 

Let's not forget we have three parties here, and the resulting chain of liability.

 

Surely ALL reasonable costs would be payable by the tree owner (via insurance) as compensation?

 

 

 

Any-hoo, regardless, I did say that the questions where rhetorical, and that the point was one of providing evidence of exploring other "reasonable" alternatives - thus PROVING that removal of the roots was the only remaining solution - hence the "necessary" solution in order to abate the nuisance. . .

 

 

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[fagus]

Good thread this and I like the speed bump idea :-)

 

My too succinct attempt was just to point out that we are trained to know case law to assist our work but trained to interpret it I don't think we are;we might have a good go at understanding it but that is not the same.

 

We are responsible for the advice we give. The brownstuff can hit the fan if by talking the situation through with a client they then think I am on safe ground here stuff this appeal malarky and goes out and takes action.

[Gary Prentice]

Good thread this and I like the speed bump idea :-)

 

My too succinct attempt was just to point out that we are trained to know case law to assist our work but trained to interpret it I don't think we are;we might have a good go at understanding it but that is not the same.

 

We are responsible for the advice we give. The brownstuff can hit the fan if by talking the situation through with a client they then think I am on safe ground here stuff this appeal malarky and goes out and takes action.

 

 

Definitely not going to happen in this case. Spent an evening with both the client and the neighbour discussing the situation. I warned the neighbour that the LA were likely to prosecute, even though I believed, personally, that they would be on shaky ground.

 

The result would be up to a magistrates interpretation of precedence and the appeal, although sometimes a lengthy process, would be the best option.

[daltontrees]

As you are not being paid for the advice, I think you would be reckless to stick your neck out on legal interpretations. But we can all learn a little thanks to your posting, the situation that has developed, you keeping us apprised and the excuse to wade through the likes of Perrin.

[Gary Prentice]

I've all weekend to wade through Perrin again. The senior TO has upheld the decision today. So I've loads of reading to do again, research, another site visit to gather the empirical data and photo's and so forth.

 

I'm thinking now that I was less thorough than I should have been, in my original application , which may be to my detriment for the appeal. I'm a little unsure now about what I can include, as its been a while since I've lodged one.

 

If nothing else, this has been a terrific academic debate, with input from some very experienced and knowledgeable people. Personally, I've often felt somewhat lacking, the little boy listening to the grown-ups talking, but it's encouraged me to make the effort to study and research more.

 

So thanks to everyone who has participated, update in about three months.

[kevinjohnsonmbe]

It's been good reading from the touch line! Its only on the basis that if you've got nothing to add, add nothing, that I've been a "silent observer" but please don't take that as anything other than passive admiration for all contributions!

[sloth]

It's been good reading from the touch line! Its only on the basis that if you've got nothing to add, add nothing, that I've been a "silent observer" but please don't take that as anything other than passive admiration for all contributions!

 

Ditto those sentiments

[daltontrees]

Just a couple of thoughts on the compensation issue.

 

Firstly it seems according to the latest version of the Planning Act that

"Tree preservation regulations may make provision for the payment of compensation ... where any consent required under tree preservation regulations is refused". Until there has been an application that has been refused there is no compensation payable.

 

Secondly a claim has to be put in within 12 months of the refusal or appeal determination.

 

Thirdly no compensation is payable "for loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused ....". It seems to me that this is there to allow a Council to make a fully informed decision whether to refuse and take on the compensation liability, and to cover the Council if they couldn't have foreseen the damage. Note, foreseeability seems to relate to the Council.

 

Fourthly no compensation is payable "for loss or damage reasonably foreseeable by [the applicant] and attributable to [the applicant's] failure to take reasonable steps to avert the loss or damage or to mitigate its extent". Foreseeably this time relates to the claimant.

 

If a driveway is being disrupted and is ongoing and only going to get worse, it looks to me like there is no way to avert the damage and no way to mitigate its extent. If it is plain to see at the time of an application and has been pointed out in the application, the Council could not claim that further damage was not reasonably foreseeable. Compensation should be payable as long as a claim is made in good time.

 

But I can't see where in the legislation compensation is payable for past damage, only for future. This seems to be backed up in case law. It also seems that claims might struggle unless at least the start of damage is plainly atttributable to the tree. Not so much an issue with a driveway but important for subsidence cases. So there seems to be a narrow window for claiming - you spot damage, prove a tree did it, apply for consent, get refused, claim withn a year for cost of unavoidable future damage and take it from there?

 

Sorry btggaz, you are probably scunnered by all this stuff, no need to reply. But if anyone else has any views on how the compensation rules operate in cases like this please pitch in. I was just following up on that Tree Radar thing, which according to my reading of the Regulations isn't the sort of cost the Council would compensate.