Abating Nuisance

[Gary Prentice]

To abate a nuisance caused by tree roots, how far can a council go.

 

The protected tree is on a boundary and the roots have lifted the neighbouring drive, over a radius of 5-6m. Every root is traceable and has lifted/cracked the tarmac up to about 2.5-3 inches.

 

To abate the nuisance by removing roots isn't possible. lifting the tarmac and installing a cellular system may be possible. Can the planning/TO insist on this solution?

 

I'm aware of the case with the two oaks causing subsidence (but can't name it without searching the books) where I think the High Court judge allowed one to be removed but decided the installation of a rootbarrier would be a reasonable expenditure to keep the second protected tree.

 

Anyone with experience of demands for engineering solutions?

[458 Lott]

The roots are causing an actionable Nusance so cut them off

For this you don't need permission

If you as for permission the tree officer will request a tree friendly solution

So don't ask

Asking gives permission for refusal

Shoot straight stay alive

[Gary Prentice]

The roots are causing an actionable Nusance so cut them off

 

The tree would fall over.

[daltontrees]

Are the roots a (legal) nuisance? Soulds like it. Is consent needed to abate the nuisance? No. So if you ask teh Council, thye can help and advise but ultimately you have the right to chop the roots whatever they say. A good fallback.

But if chopping that many roots would cause the tree to fall over, theyir removal would (but for the abatement of nuisance immunity form prosecution) constitute wilful destruction of a protected tree.

Perhaps what would have to be done is to tell the Council the roots are to be removed and then ask for consent to remove the remaining destabilised tree. Refusal of the latter would leave the Council resoonsible for compensation for foreseeable failure of the destabilised tree.

It wpoul; seem the life of the tree is in the hands of the neighbour. Say the root chopping and then the tree removal will cost c + r, and if the overall effect is to change the amenity value of the tree owner's house by v1 you have a total worst-case cost for the tree owner's side. The neighbour might be concerned only about the effect on value on his house v2. Retention of the tree and its roots might be costly using a barrier system but if it costs b and b is less than c + r +/- v1 it is worth it for the owner. The neighbour may be in favour of this solution if v2 is a small or negative number. Who knows, if v2 is a large negative number the neighbour might chip in for the cost b.

Sorry, that probably seems a bit complicated but that's how I would describe it to a client, but with a bit of hand waving and pointing.

The barrier protection shouldn't need consent.

[daltontrees]

The roots are causing an actionable Nusance so cut them off

For this you don't need permission

If you as for permission the tree officer will request a tree friendly solution

So don't ask

Asking gives permission for refusal

Shoot straight stay alive

 

This seems right in principle except as I have suggested if you ask for advice but don't apply formally there is nothing to refuse. And if the tree is TPO'd a refusal makes no difference to the owner's situation.

[Gary Prentice]

No issues with the removal by the owner, as it's lifted his drive too. (But can't be a nuisance to him)

 

I think I've got confused with the rootbarrier on the example case in my first post. I was thinking that the judge had ordered the barrier on the neighbours land.

 

So in my case, no-one can get the neighbour not to cut the roots. So my application to fell is based on the fact that the intended root severance would either destabilise or kill the tree, so the LPA must allow for its removal.

[detritus21]

The tree officer would have to agree that it is a nuisance. They could deem that it isn't a nuisance or the minor nuisance is outweighed by the amenity value of the tree. The tree would then be retained so you would be back to looking for another solution.

[treequip]

The tree officer would have to agree that it is a nuisance. They could deem that it isn't a nuisance or the minor nuisance is outweighed by the amenity value of the tree. The tree would then be retained so you would be back to looking for another solution.

 

The tree officer doesn't decide what the definition of nuisance is, that would be a job for the courts

[detritus21]

Presumably you would have to take it to court to define whether it is a nuisance. What I was saying is if you were to apply to remove the tree on the basis of the roots this could be refused. If you haven't got a court to say they are a nuisance then the LA could take you to task for willful distruction of a tree by damaging the roots. Whichever way it looks like you get a court order to prove a nuisance or through the TO

[treequip]

No the courts have deliberated on nuisance, if you are causing damage to another's property you are guilty of an actionable nuisance.