TPO's and highways clearance height

[daltontrees]

The above was 'lifted' from Basingstoke council website.

2.4m above footpaths- to allow a person with an umbrella and 5.2m height from the central white line.

It seems you can just do it even without being formally instructed to. In other words, it is your duty as a landowner to make sure you keep any overhanging trees within those parameters. Kinda makes sense really.

 

That's very good of them to be so clear about it. But if you look at the Highways Act there is no duty to keep roads and footpaths clear of obstructions. The only absolute requirement to do so is when notice is served on you. Only then are you complying with an Act of parliament and therefore entitled to enjoy the exemption.

 

Isn't that right? And is Basingstoke saying that you don't need to apply to remove an obstruction because if you do they will approve it anyway? A subtle distinction, but they may be exercising a blanket deemed approval rather than following the letter of the law.

 

I'll feel suitably vanquished, humbled and enlightened if there is some law somewhere that says a tree owner has to keep the road and footpath clear of obstructions.

[likeitorlumpit]

That's very good of them to be so clear about it. But if you look at the Highways Act there is no duty to keep roads and footpaths clear of obstructions. The only absolute requirement to do so is when notice is served on you. Only then are you complying with an Act of parliament and therefore entitled to enjoy the exemption.

 

Isn't that right? And is Basingstoke saying that you don't need to apply to remove an obstruction because if you do they will approve it anyway? A subtle distinction, but they may be exercising a blanket deemed approval rather than following the letter of the law.

 

I'll feel suitably vanquished, humbled and enlightened if there is some law somewhere that says a tree owner has to keep the road and footpath clear of obstructions.

 

Thanks for staying involved in this thread.

I too would like to know the definitive answer. I would like to 'put this one to bed' so it were. I'll have a chat with the Canterbury tree officer tomorrow hopefully and see if he knows the exact regulation.

[Andy Clark]

To flip this on it's head, you could always advise your client to respond to the Highway Dept, advising that the trees are TPO'd, and as a consequence are not prepared to do the works that they have specified. .

 

The Highways Dept would then be tasked with getting the works done, which would of course mean THEM dealing with the TPO issue......

 

Your client then just sits back and waits for the bill for the works to come from the Highways Dept.

 

Granted, not the ideal solution, but a lot less agro then getting stuck between two LA depts who probably don't even talk to each other.

 

Sent from my BlackBerry 9700 using Tapatalk

[daltontrees]

The Highways Act 1980 (s.137) says that " If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine ..." This is taken by the courts to be the obstruction of the road by temporary occupation such as scaffolding, burger vans, demonstrations and so forth. I am not at all clear that it is intended to include trees, which don't intuitively seem to fall into the category of wilful obstruction i.e. deliberately doing something rather than letting some state of things come to be.

 

I think it would be useful to know for sure whether pruning back branches that might be causing an obstruction, but without having been told it is an obstruction, is exempt from TPO controls.

Edited December 3, 2013 by daltontrees

[likeitorlumpit]

The Highways Act 1980 (s.137) says that " If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine ..." This is taken by the courts to be the obstruction of the road by temporary occupation such as scaffolding, burger vans, demonstrations and so forth. I am not at all clear that it is intended to include trees, which don't intuitively seem to fall into the category of wilful obstruction i.e. deliberately doing something rather than letting some state of things come to be.

 

I think it would be useful to know for sure whether pruning back branches that might be causing an obstruction, but without having been told it is an obstruction, is exempt from TPO controls.

 

I'm hoping to get a Canterbury answer today though their council website is determined that you fill in online forms to 'talk' to a TO.

We'll see. He may not know the intricacies though. The council offices are just down the road from the job so I may drop in. No I will drop in.

[fagus]

The reality is that we are talking here about small overhanging branches clipping double decker buses and high sided vehicles; the work is minor and as Dalton has said is unlikely to be very detrimental to the tree however it is done. I know authorities who survey by a trip in double decker bus,and prune with an open topped D decker, also at night to see the tree effect on street lighting.;then follow up with Highway notices to private properties. Anybody pruning large branches without permission likely has a different agenda. Large branches would have caused vehicle damage and been reported earlier.Bus companies soon report troublesome areas.

[likeitorlumpit]

Basically I went in and they said we would always appreciate an e mail in these situations- I guess thats so they are prepared if someone complains. Other than that, just crack on.

[devon TWiG]

From a different perspective ( I was a tree surgeon for 20 years but now drive a lorry !) If a lorry (or bus ) does collide with a tree branch /trunk that is less than 5.2 metres above the highway and it results in damage to said vehicle is the owner of the tree liable ? I ask this as several times a year a lorry limps back to our depot in a sorry state , but the company insurers have stated that the owner of the tree has to be aware that the tree is causing an obstruction and damage must have occurred previously to have any hope of succeeding with a claim . Has any one known of a claim being made against a tree owner in these circumstances ? or can a tree owner claim for damage caused to a tree by a lorry ?

[daltontrees]

What a refreshing perspective! My instinct has been that there is no absolute legal duy to keep the road free of obstruction. What you have said backs that up somewhat. After all, the Roads Dept has an obligation to keep the road serviceable, but if you hit a pothole and break an axle you have to show that someone else reported the pothole a couple of months ago and that the Roads Dept has done nothing about it.

 

Back then to my bugbear. If it is not an ofence unwilfully to obstruct the highway with a branch, how can TPO exemption be claimed for preventative pruning?

[fagus]

Good stuff EdwardC.

Not sure about your footpath analogy though.The footpath right is the ability to pass and repass over the land unhindered.