Abating Nuisance

[Dean Lofthouse]

I think first come first served should apply

 

If the tree was there first take the drive up and demolish the neighbours house, if the house and drive were there first then take the tree down

[458 Lott]

Property of tree

On another thought as this is almost done

Anyo e suffering loss due to an imposition of a tpo is entitled to compensation

Therefore if works refused and a tpo imposed then the extra costs of tree friendly repair could be argued to for the public benifit and loss suffered via the difference In costs

Hope this makes sense

If we all did this ie Pursue cost tree officers would be more corporative

[Gary Prentice]

I think first come first served should apply

 

If the tree was there first take the drive up and demolish the neighbours house, if the house and drive were there first then take the tree down

 

Lol. I should have suggested that application, first come, first served to Jim McD when he was TO at Huddersfield. He would have loved the idea.

[Gary Prentice]

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.

 

Cos as I posted earlier, raising the drive level would then interfere with the DPC on the property and mean a ramp onto the drive and down to the garage. Not practicable in this situation or a reasonable solution.

 

To be honest, i don't know the age of the TPO, but if its less than ten years it shouldn't have been served. It would have been obvious that it would outgrow its context, leading to damage to both properties drives. Although I admit its aesthetic amenity value has been prolonged for whatever period of time.

[daltontrees]

I would be interested to hear the outcome of this in due course if you are at liberty to say on a public forum.

[Gary Prentice]

I would be interested to hear the outcome of this in due course if you are at liberty to say on a public forum.

 

No problem with letting anyone know, it's public record anyway. Application went in a couple of days ago.

[Gary Prentice]

I would be interested to hear the outcome of this in due course if you are at liberty to say on a public forum.

 

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.

[daltontrees]

I am not surprised at the Council's decision but I am incredulous at the rationale. As you say, the Council has taken it upon itself to try and control how the nuisance can be abated. Which is for want of a better or any other appropriatte word, wrong.

 

There may be one technicality here. You applied for removal based on intended root pruning making the tree dangerous. Instead, if the neighbour had pruned the roots to abate the nuisance, he would have been immune from prosecution because thats what the Act says. Then the tree could have been so dangerous that it's immediate removal was required, and again the owner would be immune from prosecution (because, again, that's what the Act says). But because you applied for consent for the whole solution, a refusal might be technically competent but not for the reasons stated by the Council.

 

Good luck with this. You could get the neigbour to prune the roots then chop the dangerous tree down (giving Council 5 days' notice). Or appeal against the refusal. Or persuade the neighbour to spend money on resurfacing... maybe not.

[Andy Clark]

I've struggled with this thread a bit, and I think the point of "actionable nuisance" and the TPO has clouded things a bit.....

 

The neighbour (not the tree owner) has a duty under the various Occupiers Liability Acts to ensure that there is no hazards to anyone entering the premises.

 

If the drive is a trip hazard, the fact that the tree is causing it or that the tree is TPO'd is irrelevant and wouldn't be a plausable defense against that liability of not rectifying the trip hazard. They must still take the reasonable action to safeguard the premises - even if that means working around the tree, as a consequence of the TPO.

 

If the postman tripped over and broke his ankle, he would still sue the neighbour, and the neighbour would be liable. The postman wouldn't of course sue the tree owner.

 

The Actionable Nuisance against the tree owner only really comes into it for the neighbour to then counter claim against the tree owner for the cost of abating the trip hazard and carrying out the works required as a consequence of the tree owners tree being causal to the damage If those works cost £10,000, because the tree is TPO'd and an engineering solution must be found, then so be it.

 

The tree owner could in theory then counter claim these costs from the Council under a section 203 claim, as compensation as the result of the TPO. I say "in theory" because there has been no mention (that I've seen) of an Article 5 Certificate ever being served or of when the TPO was made. (Don't push the Tree Officer at this point, because he/she might still be able to serve one).

 

My best advice would be to advise both parties to talk to their insurers, and then let the insurers argue it out. It's nice that the neighbours appear to be being amicable, but I think that's just clouding the processes and will inevitably end in tears and dispute as the matter drags on to no definable conclusion. . .

 

 

 

 

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[daltontrees]

I'm with you on most of that but the neighbour's position is surely affected not just by the OLA duty of care but by his own safe enjoyment of his property, e.g. not twisting his own ankle, and also by the damage being done to his property which is not of his doing? Whereas there may be a defence in the OLA that the obligation to abateme trip hazards are modified by the reasonableness inherent in the OLA duty of care, there is no such reasonableness test that I know of in the other two cases namely danger to himself and damage to his property.

 

The TPO might only show the tree position above ground, but it is the tree that is preserved including the roots wherever they might be. The neighbour is affected by the TPO even though it's not his tree.

 

I still feel the Council's refusal is technically correct but that the neighbour has an immunity from prosecution (for removing tree roots) that is clearly stated in primary legislation. I can't see that he has to find a more elaborate and expensive solution because of the TPO. Even if the TPO is pre 1999 and is for a tree of outstanding amenity value and justifying an Article 5 Certificate, the immunity from prosecution is unchanged.

 

So if he removes roots and tells the owner thst the tree is probably dangerous as a result, he is still within his rights. And if the owner is satisfied that the tree is indeed dangerous, he is within his rights to notify the Council and then remove it. No permissions are required for root removal or tree removal, no?