Abating Nuisance

[Amelanchier]

I'm thinking now that I was less thorough than I should have been, in my original application , which may be to my detriment for the appeal. I'm a little unsure now about what I can include, as its been a while since I've lodged one.

 

Nothing that wasn't included in the application I'm afraid. If you think the initial application was less than it could have been then the only option you have is to re-apply and wait for the inevitable refusal.

[Amelanchier]

Just a couple of thoughts on the compensation issue.

 

Firstly it seems according to the latest version of the Planning Act that

"Tree preservation regulations may make provision for the payment of compensation ... where any consent required under tree preservation regulations is refused". Until there has been an application that has been refused there is no compensation payable.

 

Secondly a claim has to be put in within 12 months of the refusal or appeal determination.

 

Thirdly no compensation is payable "for loss or damage which, having regard to the application and the documents and particulars accompanying it, was not reasonably foreseeable when consent was refused ....". It seems to me that this is there to allow a Council to make a fully informed decision whether to refuse and take on the compensation liability, and to cover the Council if they couldn't have foreseen the damage. Note, foreseeability seems to relate to the Council.

 

Fourthly no compensation is payable "for loss or damage reasonably foreseeable by [the applicant] and attributable to [the applicant's] failure to take reasonable steps to avert the loss or damage or to mitigate its extent". Foreseeably this time relates to the claimant.

 

If a driveway is being disrupted and is ongoing and only going to get worse, it looks to me like there is no way to avert the damage and no way to mitigate its extent. If it is plain to see at the time of an application and has been pointed out in the application, the Council could not claim that further damage was not reasonably foreseeable. Compensation should be payable as long as a claim is made in good time.

 

But I can't see where in the legislation compensation is payable for past damage, only for future. This seems to be backed up in case law. It also seems that claims might struggle unless at least the start of damage is plainly atttributable to the tree. Not so much an issue with a driveway but important for subsidence cases. So there seems to be a narrow window for claiming - you spot damage, prove a tree did it, apply for consent, get refused, claim withn a year for cost of unavoidable future damage and take it from there?

 

Sorry btggaz, you are probably scunnered by all this stuff, no need to reply. But if anyone else has any views on how the compensation rules operate in cases like this please pitch in. I was just following up on that Tree Radar thing, which according to my reading of the Regulations isn't the sort of cost the Council would compensate.

 

I broadly concur. In my view, having refused consent to remove the tree (and by association the offending root) the council are liable for the resulting damage to the driveway as it was not only foreseeable but demonstrable! Jules notes this liability extends only from the point in time that the decision was made (and a decision has to be made hence my previous advice to apply rather than to act through exemptions) and there is a £500 'excess'. However there is no limit to the number of times a claim can be made if the damage re-occurs.

 

I am faintly aware of a situation whereby Poole borough council was so exhausted of claims against it for cosmetic damage to cars under a particular Pine that it made a substantial single payout to settle and abate all future actions from the affected residents. I never found out whether it intends to make the same offer to subsequent residents.

[Gary Prentice]

I broadly concur. In my view, having refused consent to remove the tree (and by association the offending root) the council are liable for the resulting damage to the driveway as it was not only foreseeable but demonstrable! Jules notes this liability extends only from the point in time that the decision was made (and a decision has to be made hence my previous advice to apply rather than to act through exemptions) and there is a £500 'excess'. However there is no limit to the number of times a claim can be made if the damage re-occurs.

 

I am faintly aware of a situation whereby Poole borough council was so exhausted of claims against it for cosmetic damage to cars under a particular Pine that it made a substantial single payout to settle and abate all future actions from the affected residents. I never found out whether it intends to make the same offer to subsequent residents.

 

Would a joint claim, by both the owner and the neighbour, be possible? With a single shared excess? Both driveways are being damaged and the owner has occurred a loss. Or would any claim by the owner be nullified because of the exemption used in the original application?

 

With hindsight, a wonderful thing, I can see the errors that I've made in this whole process. In similar circumstances, I'm definitely pursue a different approach in the future.

[daltontrees]

Would a joint claim, by both the owner and the neighbour, be possible? With a single shared excess? Both driveways are being damaged and the owner has occurred a loss. Or would any claim by the owner be nullified because of the exemption used in the original application?

 

I don't think the £500 'excess' works like in car insurance, it actually means that if the loss comes to £499 you can't claim at all. If it comes to £501, the compensation is £501.

 

I don't understand the comment about the claim being nullified. Surely the tree is untouched, the Council is basically saying that the exemption under 'necessary for abatement of nuisance' doesn't apply. No exemption has been used. Even if it had a claim would not be nullified because the claim would only be for the extent of damage caused by the tree that could not have been dealt with under the exemption.

 

Owner an neighbour can apply. I think that since there is no excess there is no reason for a joint application, that would just cause problems later.

[Gary Prentice]

I don't think the £500 'excess' works like in car insurance, it actually means that if the loss comes to £499 you can't claim at all. If it comes to £501, the compensation is £501.

 

I don't understand the comment about the claim being nullified. Surely the tree is untouched, the Council is basically saying that the exemption under 'necessary for abatement of nuisance' doesn't apply. No exemption has been used. Even if it had a claim would not be nullified because the claim would only be for the extent of damage caused by the tree that could not have been dealt with under the exemption.

 

Owner an neighbour can apply. I think that since there is no excess there is no reason for a joint application, that would just cause problems later.

 

Thanks, I thought that the excess meant that the first £500 was paid by the claimant and the LA paid over and above that.

 

I was thinking, that because the owner hasn't informed the council of damage to his own property, any loss resulting from the refusal couldn't be compensated for.

[Amelanchier]

Sorry - my use of the term excess was misleading!

[Gary Prentice]

No worries:thumbup1: It made me think and question..

[daltontrees]

I was thinking, that because the owner hasn't informed the council of damage to his own property, any loss resulting from the refusal couldn't be compensated for.

 

I haven't seen the application but you could be right in a general sense because compensation only seems to be payable having "regard to the application and the documents and particulars accompanying it". If the application said can we remove the tree because it is wrecking the neighbour's driveway, then it might be difficult to prove that the damage or more specifically the potential for current and ongong damage for the woner's side gad been brought to the Council's attention and that they had therefore had had anopportunity to weigh up the compensation liabilities of refusal with the amenity losses of approval.

 

You have clearly spent a lot of well-intended time on all this, you have my ever-increasing sympathy, the law and guidance is quite hard to understand and I am having to spend a good half an hour a day just to keep up. I am putting it down as CPD! Hindsight is so clear.

 

The thing is, you have arefusal and that's not going to change. If you appeal and get an approval, yahay! the tree and all its incipient problems can go. Anticipating the possibility that you don't then you have the possibility of reapplying. So if the appeal fails and you don't reapply and if the original application failed to alert the Council to damage to your client's property, there is no recourse to compensation. Nor is there exemption from prosecution if your client removes roots on his own property to stop further damage there.

 

In the ideal scenario the neighbour would apply to have the roots removed to the extent that was necessary to remove the nuisance, because it couldn't be dealt with in any other way. In the same ideal world your client /owner would apply to remove roots to the extent that they are damaging his property. Both applications would then be considered on their own merits, divorced from the explicit implications of removal of the tree. The Regulations read to me that separate compensation claims would thereafter be validated by refusals.

 

Don't beat yourself up about what you should and shouldn't have done, I think that without the benefit of this debate and the time I have spent thinking about and researching it, I would probably have gone down a similar route to yours.

[daltontrees]

Sorry - my use of the term excess was misleading!

Not misleading but a matter of semantics, the rule seems to be there to deter trivial applications, just like car insurance. With the latter, though, you never get the £500 back. See 'no claims bonus' in conjunction with 'excess' to see how car insurance really shafts us all.

[Gary Prentice]

Jules, I wish I was in a situation to claim CPD myself.

 

I've been back on site today, to take some measurements. With the tree having a dbh of 560mm, it would mean that the RPA extends across the pavement and half way across the road. From discussions on here on sunday, about root protection systems, the entire concept of 'alternate engineering solutions' is becoming farcical (sp?).

 

After reviewing the site conditions, one alternative may be to surface over the existing tarmac. This would repair the damage. A gulley would have to be installed, alongside the neighbours property (due to the dpc) with pipework installed into the topwater drainage system.

 

Because root removal and lowering of the drive level isn't an option, the works associated with the gully and associated drainage should be claimable off of the LA, in that it wouldn't be necessary if the tree roots were removed.

 

Obviously there could be a pending future claim, as well, if the roots caused damage to the new drive surface.

 

I think we've still a lot of options available, which I've never been aware of previously, whether we win or lose at appeal. It's all been very enlightening, but I do feel a little guilty about the amount of time yourself, among others, have devoted to this thread. The only real consolation is the greater understanding of the subject, although it has become almost boring at times.