Abating Nuisance

[Gary Prentice]

I'm going to ask the LA, on Monday, as to which legislation the neighbour should seek alternate solutions. Maybe we will get an about turn on the decision after that query. If not, it's onto the appeal.

[Amelanchier]

And it's a refusal:lol:

 

' In regards to the proposed felling of T1, the applicant states that the Silver Birch is causing an alleged 'nuisance', as lateral roots have lifted the neighbouring properties drive (Address). Therefore, the resident of (neighbouring address) intends to sever and remove the offending roots. As such, the Agent of this application has applied to fell the tree,due to the foreseen root removal leading to the tree becoming unstable and dangerous. However, the Council sees no reason for the any (sp) root pruning or felling of the tree at this point due to the lack of evidence that the drive cannot be repaired or reconstructed with the trees root structure remaining intact.'

 

So there you have it, the council think that they can control how the offended party actually goes about abating the nuisance.

 

I'm meeting both the neighbour and client on thursday to decide the next step.

 

I would suggest appealing the refusal with an application for costs. Also taking up a point from Andy's post above - the client should be made aware that this is a long game. Hasty action will be counter productive should proceedings be brought by the LPA.

 

Perhaps a short term fix to prevent the trip hazard and if PINS uphold the refusal then another application in a couple of years with some estimates for the resurfacing vs the current and future amenity values (as suggested by Jules earlier) and some evidence of the rate of distortion of the surface. Some commentary by a competent builder / engineer about the tolerance/costs of driveway surfaces would 'outrank' any lay comments by the TO about driveways and as a final touch it never hurts to invite the local member or the head of planning into a discussion about the possible legal costs of pursuing refusal/prosecution. Even if they dismiss you out of hand it demonstrates reasonableness.

Edited June 29, 2013 by Amelanchier

[Amelanchier]

Ah beat me to it!

[daltontrees]

As before, I would be obliged if you would let us know the outcome. I am quite irrationally getting annoyed at your Council's attitude, maybe though they just need it put to them very plainly, I wouldn't have the appetiete for a long game.

[Gary Prentice]

As before, I would be obliged if you would let us know the outcome. I am quite irrationally getting annoyed at your Council's attitude, maybe though they just need it put to them very plainly, I wouldn't have the appetiete for a long game.

 

:lol:

I think my council's just been used to doing as they please. I'm really in two minds, whether to try to sort this personally with the planning officer first or just go to appeal. However, I do feel the appeal system is biased towards supporting the LA.

 

On a side note, schedule 2 also made reference to the amenity value of the tree. I thought that a couple of judges and the Sec. Of State have stated that the Amenity value must be disregarded where the nuisance exemption applies.

[daltontrees]

Jokes aside, I would probably give the TO an off-the-record call to explain that client isn't going to let it go and is considering appeal.

 

I should have consulted the Guidance Notes earlier, unfortunately I am trying to carry the E&W ans SActtish systems in my head simultaneously. Anyway, the E&W Guidance says -

"Whether the branches or roots of a protected tree can be cut back in this way under the exemption has not been settled by the Courts. In the unreported case of Sun Timber Co. Ltd. v Leeds City Council (a case involving overhanging branches) it was decided that the exemption applies only where the nuisance is 'actionable', in other words where the overhanging branches are causing, or there is an immediate risk of their causing, actual foreseeable damage. If this interpretation of the exemption is correct the LPA's consent would be required under the TPO before cutting back branches or roots which are not causing damage."

I get this odd feeling that a refusal was technically competent but that root pruning would be exempt and so would be removal of the remainder of the tree. An appeal might result in the Inspector saying there needn't have been an application at all. Even if he is sympathetic to the Council's technical view, the appelant could face his own costs.

 

The money might bebetter spent recording the damage and assessing the likely post-pruning stability. This could provide the evidence needed to defend a prosecution. I cannot see that the Council, once it gets to the Legal Dept, would genuinely pursue prosecution if there is little or no public interest to be served and if there is a significant question mark over the strength of its case.

 

Ho hum...

[doobin]

Speedhump. Problem solved.

 

Cheques in the post, right?

[daltontrees]

Speedhump. Problem solved.

 

Cheques in the post, right?

 

Now why didn't I think of that? I'll give you half of the fee I get for my advice on this one.

[doobin]

Now why didn't I think of that? I'll give you half of the fee I get for my advice on this one.

 

Half of nothing is still nothing!

[458 Lott]

When I was a tree officer I defended a holm oak that was causing damage to a garage

The pinn s went with me rhe tree stayed

I thought it was borderline as the tree could only be glimpsed from a public place and neighbour wrote in favour of felling

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