Abating Nuisance

[Amelanchier]

... 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).

 

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.

 

Article 5 certificates were terminated by regulation 24 of the Town and Country Planning (Tree Preservation)(England) Regulations 2012. All TPOs are now (rightly IMHO) subject to the compensation scheme contained in the 1999 regs.

[Andy Clark]

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?

 

 

Not sure about the "imunity from prosecution" bit.

 

I think the point is that all parties should be looking to follow the process, rather than looking for the loop holes to get the tree felled. At the end of the day, that is what the TO is going to be looking for.

 

Granted the matter of the TPO and Actionable nuisance etc, but lets not forget that Actionable Nuisanace in Tort is subjective - hence why it boils down to case law.

 

Has there ever been a legal precidence set in relation to roots lifting a driveway? If there is, then granted, Actionable Nuisance = TPO excemption to rectify. But if there isn't, then the neighbour still risks having no defence, as the damage was never concretely proved as being actionable.

 

 

 

Plus, it boils down to that fantastic word "Reasonableness". The actions of a reasonable man.

 

Is it Reasonable for the roots to be severed in the first instance, knowing that the tree is TPO'd, and knowing that it will need to be felled by the tree owner as a result?

 

I don't think so personally, but granted that others may feel different.

 

I do think it's reasonable though to at least try and find an alternative (with a big trail of evidence to back it up), and then look to the tree roots when you can prove that you feel you've done all that you reasonably can.

 

 

But would that all over-rule the neighbours own duty under OL? I still think that the neighbours liability for rectifying a danger on his premises would outweigh his claim for peacfull enjoyment under Nuisance against the tree owner.

 

Also, all the while this drags on and they dance round the TPO issue, the trip hazard is still there, known to the neighbour, hence could in fact be claimed to be Negligent by not taking reasonable action to rectify the hazard.

 

Reasonable action could of course in the first instance just be adding a bit more tarmac to soften the breaks in the drive, to make them not so prominent and therefore less likely to cause a trip.

 

5 quid for a bag of ready lay patch repair tarmac, could at least buy everyone 6-12 months while they all figure out a more longer term fix.

 

 

Granted we don't all know the extent of the damage, but you hopefully get the point.

[Andy Clark]

Article 5 certificates were terminated by regulation 24 of the Town and Country Planning (Tree Preservation)(England) Regulations 2012. All TPOs are now (rightly IMHO) subject to the compensation scheme contained in the 1999 regs.

 

I suppose i should read them really.

 

Unfortunately I never got past the typo in the first page, and kinda lost interest after that.

[daltontrees]

Article 5 certificates were terminated by regulation 24 of the Town and Country Planning (Tree Preservation)(England) Regulations 2012. All TPOs are now (rightly IMHO) subject to the compensation scheme contained in the 1999 regs.

 

Good! Thanks for clarifying.

[daltontrees]

Here is the exact wordign of the 1990 Act, with all the extraneous wording removed

"no [TPO] shall apply ... to the cutting down, uprooting, topping or lopping of any trees so far as may be necessary for the prevention or abatement of a nuisance."

It doesn't say 'actionable nuisance', but I suppose that is implied. I am not in favour of unnecessary tree removals, and as you say a short-term fix may be possible for damage that we don't know the extent of, but it's only going to get worse.

 

I am not aware of any significant driveway cases, but the generality of what constitutes nuisance is so well established that if it were my tree I wouldn't have to look any further.

 

I think the OLA duty could be satisfied by a partial repair but the damage and the danger to the neighbour are nothing to do with OLA and there is no direct comparison with the neighbour's need to be reasonable in considering whether he wants to tolerate damage and danger to himself.

 

Following the process seems to have got the owner nowhere. The neighbour still is at danger, his visitors are still at danger and his property is still getting damaged. The law cannot possibly be construed to prevent him doing whatever he needs to do about it, just because a tree has outgrown its usefulness.

 

I would love to see how an appeal would pan out.

[daltontrees]

I tried to edit my previous messsage but it failed. I was just going to clarify my last comment. The neighbour could remove roots, creating a dangerous tree, the owner could then remove it. In my reading of the legislation being permitted without consent. The apllication anticipated this and (sensibly and I think reasonaby) proposed pre-empting it by removing the whole tree.

[Gary Prentice]

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.

 

I've left my copy of Mynors at work, so I can't be too specific. But I'm now starting to doubt the 'self help' option. Indeed, Mynors specifically warns that reliance on that exemption may be treading on dangerous ground.

 

I've met both the owner and the neighbour. The drive, at present, is at a level that is causing issues with the DPC. He has been advised that it needs re-constructing at a lower grade.

 

 

 

 

 

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. . .

 

 

 

 

Sent from my BlackBerry 9700 using Tapatalk

 

My understanding of the actionable nuisance, is that the neighbour is in a position, whereas he could successfully apply to the courts to require the owner to stop his tree roots encroaching on and damaging his property ie the drive.

As there is no physical way of now preventing the encroachment, removal of the roots is the only option. The insurers attitude, at present, is to inquire if there are any cracks in the structure (house walls). Otherwise they are unwilling to get involved.

 

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?

 

Jules, I still think this is dangerous ground, P v Northampton, being the most current case we all look too, seems IMO to have raised more questions than answers. Between the Technical and the Appeal courts, many considerations and alternatives were raised. I'm not clear, whether the intention to seek alternative engineering solutions was meant to be directed to the owner or the complaintent. In that particular case, both parties were seeking the same objective but were sitting on opposite sides of the courtroom.

 

On Thursday I warned the neighbour that although I believed he was legally entitled to remove the roots, that probably wouldn't prevent the LA attempting to prosecute for breaching the TPO. Now I'm not sure. I still think the entire situation lacks clarity, as different councils I'm involved with seem to interpret the law differently.

[daltontrees]

I will have to go and look again at P v Northhampton. But the law can sometimes be an ass. I think you have to stand back from these things sometimes and see the situation for what it is. To quote myself " The neighbour still is at danger, his visitors are still at danger and his property is still getting damaged. The law cannot possibly be construed to prevent him doing whatever he needs to do about it, just because a tree has outgrown its usefulness."

[Amelanchier]

I suppose i should read them really.

 

Nah don't bother. It was only the single most widespread change in TPO legislation in the past 50 years that altered every single existing order.

 

There were actually two errors were in the model Order (pages 16-19) but you wouldn't have got to the second if you gave up at the first!

 

In any case (and just for the record), both were inconsequential to the validity of the regulations as the phrasing of reg 3(1) requires that "An order shall be in the form set out in the schedule to these regulations or in a form substantially to the same effect..." IIRC DCLG published a revised model order on their website within days.

Edited June 29, 2013 by Amelanchier

[Gary Prentice]

Not sure about the "imunity from prosecution" bit.

 

I think the point is that all parties should be looking to follow the process, rather than looking for the loop holes to get the tree felled. At the end of the day, that is what the TO is going to be looking for.

 

Granted the matter of the TPO and Actionable nuisance etc, but lets not forget that Actionable Nuisanace in Tort is subjective - hence why it boils down to case law.

 

Has there ever been a legal precidence set in relation to roots lifting a driveway? If there is, then granted, Actionable Nuisance = TPO excemption to rectify. But if there isn't, then the neighbour still risks having no defence, as the damage was never concretely proved as being actionable.

 

 

 

Plus, it boils down to that fantastic word "Reasonableness". The actions of a reasonable man.

 

Is it Reasonable for the roots to be severed in the first instance, knowing that the tree is TPO'd, and knowing that it will need to be felled by the tree owner as a result?

 

I don't think so personally, but granted that others may feel different.

 

I do think it's reasonable though to at least try and find an alternative (with a big trail of evidence to back it up), and then look to the tree roots when you can prove that you feel you've done all that you reasonably can.

 

 

But would that all over-rule the neighbours own duty under OL? I still think that the neighbours liability for rectifying a danger on his premises would outweigh his claim for peacfull enjoyment under Nuisance against the tree owner.

 

Also, all the while this drags on and they dance round the TPO issue, the trip hazard is still there, known to the neighbour, hence could in fact be claimed to be Negligent by not taking reasonable action to rectify the hazard.

 

Reasonable action could of course in the first instance just be adding a bit more tarmac to soften the breaks in the drive, to make them not so prominent and therefore less likely to cause a trip.

 

5 quid for a bag of ready lay patch repair tarmac, could at least buy everyone 6-12 months while they all figure out a more longer term fix.

 

 

Granted we don't all know the extent of the damage, but you hopefully get the point.

 

To add some more history. A 211 notice was submitted in 2004, for removal, when the initial signs of damage were appearing. At this stage, my personal opinion is that the tree wouldn't have met the normal criteria with regard to the useful life expectancy.

 

Unfortunately at that time, the owners simply excepted that the tree had to stay and didn't seek any further advise. Time has passed and the damage has increased. The neighbour purchased the property in 2008 and was unaware that the house was even in a CA until recently.

 

I have a very limited practical experience in the engineering solutions, but have enough theoretical knowledge to confidently state that there's no other solution than severance. The root levels are now at a level, that any finished grade to the drive would be above the DPC.

 

All this was foreseeable in 2004.