Abating Nuisance

[Andy Clark]

Stumbled across this on the South Northants Council website....

 

 

 

If you or your neighbour owns trees with a Tree Preservation Order (TPO), this is important news.

 

The position has just recently changed about pruning protected trees where they overhang from neighbouring land. SNC has in the past permitted adjoining landowners to prune back branches and roots of trees where they were encroaching onto their land provided that the works did not prejudice the health and safety of the tree or make it unsightly. This was allowed because there is an exemption on TPOs that allowed works “as far as may be necessary for the prevention or abatement of a nuisance”. But, there has always been uncertainty as to what is meant by ‘nuisance’ because the TPO legislation does not define it. Until recently the prevailing legal opinion has been that ‘nuisance’ is Common Law. This can simply mean encroachment of branches and roots onto adjoining property. As a result, the Council would rarely require that permission be sought for the removal of overhanging branches, provided that the works were carried out in a professional manner.

 

 

This situation has changed. A recent legal case in the High Court (Perrin vs Northampton Borough Council) has given clearer direction on how the ‘nuisance exemption’ should be applied. It has been clarified that ‘nuisance’ should be interpreted as being ‘actionable’ in law. This means that any tree cutting works proposed would have to have the effect of preventing or abating actual or imminent damage. For example, roots undermining foundations or overhanging branches damaging a roof.

 

The overall effect of this is that if parts of your neighbour’s TPO tree is overhanging into your garden and you want to undertake some pruning works, you may only do so without permission should you be satisfied that you are doing only the minimum work necessary to prevent or abate an actionable nuisance. If you want to rely on that exemption, it is strongly advised that you obtain a legal opinion in writing before you do the work in case of the Council investigating alleged unauthorised works, which can result in prosecution with fines up to £20,000 per tree and a criminal record. Works simply to cut back branches and roots because they overhang your property will require an application to South Northamptonshire Council and consent would normally only be granted if the proposed works were for the benefit of the tree.

[Gary Prentice]

I came across that myself, when I was trying to get some background on the original application. It appears, to me, to be worded to encourage the aggrieved to involve the council anyway. Either that or pay a solicitor to commit himself to write that its okay:lol:

 

 

It's such a grey area and open to so much interpretation still. I think Mynors, himself, has commented that more cases need to go to the courts for clarification.

[Andy Clark]

Ok, I'msat pawing through Perrin, refreshing my memory of the case.......

 

I think the first startling obvious point that's been missed, is that your client does not fulfil the role of Perrin/Ramage. Your client is of course fulfilling the role of Shephard! ie, the tree owner (2nd defendant), and not the claimant seeking to rectify the nuisance.

 

Granted, your client may well have some driveway damage him/herself, but the Perrin case would not apply to your client.

 

So really that just takes me back to one of my earlier posts, in so far that I think the process by which this matter is being pursued is a bit backwards.

 

The claim of actionable nusiance should be being pursued by the neighbour, not by your client - and equally with the TPO application. The fact that the Council have refused consent, I would think should have now exonerated your client from any comeback from the neighbour, and I would say that the best course of action would be to advise your client to now walk away, and leave the neighbour to fight it out with the LA........

as was of course the case in Perrin.

 

 

 

 

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[daltontrees]

I think the first startling obvious point that's been missed, is that your client does not fulfil the role of Perrin/Ramage. Your client is of course fulfilling the role of Shephard! ie, the tree owner (2nd defendant), and not the claimant seeking to rectify the nuisance.

 

Granted, your client may well have some driveway damage him/herself, but the Perrin case would not apply to your client.

 

Ah but the usefulness of cases with legal precedent is not the outcome for the tree or the individual but for the way that the Judge(s) clarify, explain, interpret the generalities of the law. For example, as I recall the 1st Judge goes out of his way to make a very useful distinction between the application of the abatement exemption for neighbours and then for owners. As such I have found Perrin extremely illuminating for any situation involving owners and neigbours of trees contemplating abatement, nuisance and compensation. It literally doesn't matter what side of the fence you are on.

 

Difficult to walk away from your neighbour and your tree! And of course if the enighbour cannot abate the nuisance or win compensation from the Council he would be entitled to claim any outstanding amount from the owner by Civil action. If I was the owner I would be very reluctant not to stay as proactively involved as I could.

Edited July 16, 2013 by daltontrees

[Gary Prentice]

And as with P V Northants, both the neighbour and the owner desire the tree gone. I think Chadwick made mention of the unusual circumstances of both the plaintiff and defendant wishing the same outcome.

 

The owners, Shephard, were always apparently willing to remove the tree.

 

 

"So really that just takes me back to one of my earlier posts, in so far that I think the process by which this matter is being pursued is a bit backwards."

 

You're probably right, in hindsight and with the knowledge I've gained during the course of this thread, in similar circumstances I would pursue this in a different way.

[Gary Prentice]

Appeal Decision

 

 

5. '..... I take the view that the tree should only be removed if an overriding justification has been demonstrated for this course of action and that there is no viable alternate option that could be realistically be pursued.'

 

'While I share the Council's reluctance to allow the removal of the Birch tree, it is a substantial specimen that has outgrown its restricted growing environment. Given the proximity of the tree to the entrance drives of the two properties and the extent of the damage to both of these, I have concluded that there is no practical and sustainable method of remedying the situation that is compatible with the successful ongoing retention of the Birch tree. Regrettably, I therefore find there is no alternative but to allow its removal.'

 

One paragraph does make mention of the owner of the neighbouring properties intention to exercise his common law right to sever the roots, but unfortunately doesn't elaborate upon this.

[Amelanchier]

A good outcome for both you and your client!

[Gary Prentice]

A good outcome for both you and your client!

 

A bittersweet victory really. It's nice to achieve the result but on this I feel that it's a shame that it has to come down. Wrong tree-wrong place. The consultant has also acknowledged this by overturning the re-planting condition.

[daltontrees]

A sensible outcome, your perseverance has been rewarded. I suppose it wasn't the Inspector's job to clarify the law but he seems to be applying the principle of 'necessary' in the right pragmatic way i.e. necessary doesn't mean absolutely no other way of doing it but rather means no practical way. He seems then to have jumped straight to the total removal presumably accepting the evidence that the root-pruned tree would be unviable. Maybe what was useful to your client in the end was that the Council never refuted that, only refuting that there was a practical alternative to pruning.

[Gary Prentice]

. He seems then to have jumped straight to the total removal presumably accepting the evidence that the root-pruned tree would be unviable. Maybe what was useful to your client in the end was that the Council never refuted that, only refuting that there was a practical alternative to pruning.

 

I'm sorry I can't remember exactly how much information I provided about the trees location. Anyway, it's immediately against the boundary fence. The root flare is the same as the planting pit, with the drive next to that. The council couldn't argue about the viability due to the proximity. It would have meant root pruning within one times the dbh.

 

It's been interesting to pursue and once again I've learnt a lot.