TPO's and highways clearance height

[daltontrees]

Hi

 

I've lurked for a while but find this too interesting to avoid. So I hope this makes a bit of sense and is reasonably self explanatory.

 

"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 not exceeding" s137 of the Highways Act 1980

 

Person. The Act makes quite clear it is the person not the tree that is responsible for allowing the obstruction.

 

without lawful authority or excuse Complying with an Act of Parliament is one of the exceptions from the need to apply to work on protected trees. No lawful excuse not to remove the obstruction. No need to apply to do the tree works.

 

in any way Either by act or omission, so not doing something is just as wilful as doing something.

 

wilfully obstructs the free passage along a highway The obstruction does not arise because the local authority write to you, either formally or informally, it arises because the tree is obstructing the highway and nothing has been done about it. At this point it is worth noting that a s154 is quite clearly drafted so that the notice is served in order to gain the removal of an existing obstruction not to legally create one. "...Where a hedge, tree or shrub overhangs a highway or any other road or footpath to which the public has access so as to endanger or obstruct the passage of vehicles or pedestrians, or obstructs or interferes with the view of drivers of vehicles..."

 

The land owner is responsible for things they allow onto or keep on their land, whether that be a reservoir, or tree. If you allow it to escape you are responsible. Failure to act in a responsible manner is just as wilful as not acting at all. Ignorance is no excuse. As a responsible land owner you would of course have some idea of what is expected of you. The works are exempt so no need to apply, but have a quick chat with your tree officer first.

 

A couple of points. There is no stated duty not to obstruct the highway because it is a criminal offence to wilfully obstruct it. It just wouldn't make sense to place a duty on you not to commit a crime.

 

Nowhere in the Act does it say that trees are exempt. They aren't.

 

Obstruction is obstruction, and you can obstruct a footpath by resurfacing it with nice clean tarmac, to make it an awful lot better than the mucky path it was before. But of course you now don't have access to the definitive path as described which is below a couple of inches of tarmac and so the highway has become obstructed.

 

And where does the clearance of 5.2m above a carriageway, and 2.5m above a footpath, below which it is considered an obstruction arises come from. It was 17 feet, and 7 feet 6 inches respectively just a couple of years ago when I was at college.

 

I haven't looked in for a while. I like your thoroughness and logic.

 

In short, it is unlawful to obstruct, letting a tree obstruct is therefore unlawful; this creates a statutory requirement to unobstruct and therefore falls within the ambit of the Planning legislation to prune without TPO consent.

 

I always thought the 2.4 and 5.2m 'rules' were metric equivalents of 8 and 17 feet. Is there something in the highway code that limits vehicles to 16 feet?

 

I am not sure of your logic on the 'without lawful authority or excuse' part of the Act. It is saying it's not an offence to obstruct if you have some authority to do so. A need for TPO consent could be seen as temporarily preventing authority to remove an obstruction and at a push could be a defence against prosecution until consent comes through or the need for it is waived. So while I agree that the only way the law could approach TPOs and obstructions would be exemption, I don't think the 'without lawful authority or excuse' part has any relevance, if anything it might operate in the opposite direction.

 

Trees are seen as different even if they are not mentioned in the Act. They are the only thing in nature that can create a structure in somebody else's airspace by stealth. They are encroachment and arguably trespass, but it is not an offence to let a tree encroach. The owner of the airspace is allowed to cut them back but the tree owner is not obliged to do so unless nuisance has been established. This grey area continues (in my mind) over roads, where the highways authority doesn't necessarily own the airspace. Is allowing a tree to grow wilful obstruction? If wilful means deliberate obstruction i.e. cultivation or training of a tree with the intended ourpose of creating an obstruction, then no! Trees are treated by the law as unique and different and have been since the foundations of common law in Roman times and probably before then.

 

Again, I agree with your outcome but I harbour reservations about how clear the issue is. And I would suggest that if anyone looks in on this forum and is looking for a yes/no then go carefully because just because branches overhang a road you don't have a TPO exemption automatically to remove them. Firstly you almost certainly have a TPO exemption to remove just enough of them to remove the obstruction. Secondly there could be situations like I know of where a street is only accessible under a 4m railway bridge and it is not imaginable that any vehicle could get there to need 5.2m clearance. No obstruction.

 

Sorry, I am babysitting and bored on a Saturday night, with time aplenty to kill.

 

Please don't lurk in the future, get right in there.

Edited December 7, 2013 by daltontrees

[felixthelogchopper]

This really happened. The highway authority would agree with you, as would I, and any other person applying common sense. However, the Courts apply the law, and this went all the way through the Court system and the outcome was the, path was obstructed. Daft I know. The path's still tarmacked, at least it was when I last passed by.

 

Have you got a citation for that? I'd be interested to read the reasoning.

[felixthelogchopper]

No but if memory serves me correctly it was in Cumbria, next to Newton Rigg. Maybe the highways there can help.

 

Thanks! I'll have a poke around on Westlaw or Lexis.

[penfold]

Isn't 5.2m the same as 17ft?

[DannyCane]

Well technically 5.2m is 17.060 ft so u have an extra .060 to play with haha

[DannyCane]

It's the little things in life that count my friend

[10 Bears]

This grey area continues (in my mind) over roads, where the highways authority doesn't necessarily own the airspace.

 

This is correct as the HA doesn't always have ownership of the highway, but a key legal tenet here is that a highway (as they are referred to legally) is not actually the physical road/tarmac/path etc. it is in fact the legal right to pass and re-pass along a predesignated route unhindered of obstruction.

so, simply put, if obstruction occurs - even through the quiet onset of nature i.e. a trees growth, then the Highways Act permits the acting authority e.g. the HA, the right to amend the obstruction.

 

An earlier point raised the issue about whether or not the landowner needs to be aware of the need for abatement. In fact, this issue was resolved in 1997 wherein the question of liability is simply placed upon whoever is in control of the land (be it owner, or in some cases agent/occupier) see: Sauvian, (1997) Highway Law, Sweet and Maxwell.

 

Detail from S96 of the 1980 Highways Act states:

 

"No tree, shrub grass verge, guard or fence shall be planted, laid out or erected... or if so.... allowed to remain in such a situation as to hinder the reasonable use of the highway by any person entitled to the use thereof"

 

The reading of the same section also states the entitlement of the HA to carry out remedial duties as their statutory right under the Act. Interestingly, under S130 of the 1980 Act, the LAs have the same rights as the HA.

 

Unfortunately - I have to go out now! If this raises some comments, Ill drop back in on this later....