Abating Nuisance

[Gary Prentice]

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 neighbour has, however, a duty of care. If the postman falls on the 3inch ridge, caused by the underlying root that's the houseowners liability. An actionable nuisance, as I understand it, is where damage is actually being caused. Ie, the driveway that has the appearance of a rumble strip.

 

I don't think the TO/Planning officer can argue the toss on this one tbh, as its appears to dit the exemption.

[treequip]

The neighbour has, however, a duty of care. If the postman falls on the 3inch ridge, caused by the underlying root that's the houseowners liability. An actionable nuisance, as I understand it, is where damage is actually being caused. Ie, the driveway that has the appearance of a rumble strip.

 

I don't think the TO/Planning officer can argue the toss on this one tbh, as its appears to dit the exemption.

 

That he does but the tree officer can argue that measures less than removing the root should be considered

[Gary Prentice]

That he does but the tree officer can argue that measures less than removing the root should be considered

 

He can argue or suggest alternate measures, but I think to construct a cell web would raise the drive several inches. This would then cause issues with the dpc on the house, surface water problems with a ramp down to the garage. Etc

[treequip]

He can argue or suggest alternate measures, but I think to construct a cell web would raise the drive several inches. This would then cause issues with the dpc on the house, surface water problems with a ramp down to the garage. Etc

 

Well I did say he can argue that....

 

They aren't all as "ehem", as the one we know

[Gary Prentice]

He's mellowed as times gone on. And it helps, as I seem to remember you saying, when you know as much about the rules and regs as they do:lol:

[daltontrees]

I don't think you need a court to say what's a nuisance if both parteis have agreed it is. But if you cut roots to get trid of nuisance, be prepared to defend yourself against prosecution for wilful damage to or wilful destruction of tree by Council. If you have evidence particularly photos you shoudl be OK. I stick by my suggestion of telling Council about proposed root pruning and asking to remove the destabilised tree.

[treequip]

I don't think you need a court to say what's a nuisance if both parteis have agreed it is. But if you cut roots to get trid of nuisance, be prepared to defend yourself against prosecution for wilful damage to or wilful destruction of tree by Council. If you have evidence particularly photos you shoudl be OK. I stick by my suggestion of telling Council about proposed root pruning and asking to remove the destabilised tree.

 

You cant have a legal definition of nuisance without a precedent so you definitely need the courts for that, matters not what the 2 parties have agreed its about the legal situation in the case of pruning a TPO tree

 

Wilful damage? Only if its a council owned tree, and then unlikely, are you getting confused with actions likely to destroy?

[Gary Prentice]

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.

 

I don't think you need a court to say what's a nuisance if both parteis have agreed it is. But if you cut roots to get trid of nuisance, be prepared to defend yourself against prosecution for wilful damage to or wilful destruction of tree by Council. If you have evidence particularly photos you shoudl be OK. I stick by my suggestion of telling Council about proposed root pruning and asking to remove the destabilised tree.

 

It's not worth the hassle or threat of prosecution to just cart on. As long as they can't force the neighbour to seek an engineering solution, to abate the nuisance, I can't see them being able to refuse consent. (As you said earlier)

[daltontrees]

You cant have a legal definition of nuisance without a precedent so you definitely need the courts for that, matters not what the 2 parties have agreed its about the legal situation in the case of pruning a TPO tree

 

Wilful damage? Only if its a council owned tree, and then unlikely, are you getting confused with actions likely to destroy?

 

On the latter point, I think TPOs usually make wilful destruction or wilful damage and offence, regardless of ownership.

 

On the former, the Act indicates that no TPO can apply to tree work for the abatement of a nuisance. Nuisance is not defined in the Act, but to me this must be a nuisance in teh legal sense, not a common usage 'irritation'. The matter of tree roots and nuisance seems to have been defined sufficiently well by the courts already (e.g. Solloway v Hampshire) that I am sure the tree owner can recognise it as such and abate it once he is satisfied that it exists. All I meant was that there may still need to be proof of it being a nuisance, but the onus would be on the owner to prove it retrospectively.

 

Sorry if this is all a bit heavy-duty law stuff, but I am actually trying to get it away from that. The simple principle in my mind is that the legislation deliberately and with very few words said that if you are abating a nuisance, that overrules the preservation of the tree. Any other situation would be a horrendous imposition on tree owners, to have a legal liability for damage to your neighbour's property but not to be able to do anything about it for fear of being prosecuted by the Council. Admittedly this particular case is extreme, the abatement of the nuisance may result in the loss of the whole tree. But surely that doesn't change the principle behind it? If the Act had intended the owner to prove to a third party that legal nuisance existed, prior to its abatement, in my view it shoud have said so and therwe would be a procedure for doing so.

 

The onus of proof seems similar to that held in R v Alath Construction Ltd. which concerned retrospective proof that a tree had been removed as dead. Oops there I go again with case law, but there comes a time that to know where you stand you have to look at decided cases. I am lucky enough to have a copy of Mynors with all the cases quoted in it, but if anyone on this thread wants me to say exactly what the judgements in Alath or Solloway just let me know.

Edited April 23, 2013 by daltontrees

[Steve.mill]

Regardless of the tree being a nuisance or problem, which it obviously is, another point maybe that as the driveway has to be repaired anyway why not repair it in a tree friendly manner thus keeping the tree rather than felling it. Cost wise I cant see it being much more if at all

 

If I was a tree officer and the tree in question is a good and healthy specimen and deserves its retention and TPO status it would certainly be something I would want to at least be investigated.