TPO on our Horse Chestnut but still Developers have severed the roots

[biscuit156]

HELP !!!

We have a huge Horse Chestnut (with a TPO) in our garden in Berkshire which has always sat on our border with an adjacent empty field. Developers are now building on this land very close to the border and despite references to the TPO in planning etc, houses have been built very close to it.

 

As part of the work (which is almost complete now) they dug a trench up close to the tree which severed some of the roots. I immediately contacted my Council Tree dept and have today received notification from the Planning and Development - Tree Team.

 

They have noted, the severance to the roots may have damaged the tree and they are investigating further and looking at whether the tree may now need to come down for safety reasons. As you can appreciate, we're furious - the tree is stunning, the environmental impact of cutting such a huge tree down, as well as our loss of privacy (we thought the TPO meant it was safe!).

 

They also mention the fact the on the trunk of the tree there is 'fungal brackets in a tiered formation with cream undersides' which may also have an affect on the stability of the tree and have suggested we employ and arboriculturist to give us a detailed inspection to ensure the 'fracture safety of the tree is not compromised'. and 'at the very least the decay will have reduced the trees safe useful life expectancy' There isn't much fungi (I took a photo which I could post on here) - can anyone offer any advice?? We just don't have the funds to employ anyone to report but feel we need to prove that the fungi isn't affecting the stability of the tree (or is it?) !! We're up against a well know Developer who tends to get what he wants so we need to arm ourselves with as much info as possible !

 

I'm at a loss as to what to do !! Any help/advice much appreciated !!

[daltontrees]

Mynors 2nd Edition 5.3.3 page 117, reinforcing the comments in Lemon v Webb

 

Thanks I have only the first edition for now, so I will have a look there. Lemmon v Webb is such an ancient case that perhaps Dr Mynors has not reformulated his view between the first and second editions.

[Gary Prentice]

Don't have to.

"The right of an owner to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries.... and there is no trace of the age of the tree or its branches being a material circumstance for consideration" (Lemon v Webb Court of appeal)

 

Harman J in McCombe v Read

"It is very old law that if my neighbours tree encroach on my ground, either by over-hanging boughs or by undermining roots, I may cut the boughs or the roots so far as they are on my side of the boundary"

 

Reference:

Mynors. C. 2011. The Law of Trees Forests and Hedges 2nd Edition. Sweet and Maxwell. London.

 

Please don't rely on that for tpo'd trees, I have some personal experience in the use or attempted use as an exemption. But it did have to go to appeal

[Alan Webster]

Please don't rely on that for tpo'd trees, I have some personal experience in the use or attempted use as an exemption. But it did have to go to appeal

 

We are assuming the TPO is irrelevant due to the detailed planning permission.

These cases are therefore relevant to the removal of the roots and where several posters have said there should be compensation owed.

 

You are quite correct that the nusience exemption should not be relied on as the case law is complicated. With the case of Perrin the outcome is considered to be incorrect by others.

[daltontrees]

I have found the relevant section in Mynors First Edition, s 3.6 in particular if anyone wants to look.

 

It is clear-ish to me and has been fo a while that there is a considerable difference between encroachment and nuisance. The confusion is compounded by intermittent use of terms such as trespass and negligence. But it helps to stick to encroachment and nuisance.

 

And then a distinction needs to be made between roots and branches. The latter's encroachment is clear and even the loss of light for the neighbour is an actionable nuisance. That is the clear standing of the law form Lemmon v Webb. With roots it is not that simple. Roots form a tree on a boundary will inevitably encroach on neighbouring land but this is not a nuisance. For it to be a nuisance damage has to be foreseeable and likely, if not actual, and attributable to the roots and the tree.

 

Importing the distinction between encroachment and nuisnace into the Planning Acts, it becomes clear as has been shown in case law, that the use of the necessary abatement exemption is dependent on the nuisance being not just encroachment but actually causing damage or foreseeably will cause damage.

 

The temptation is to dismiss Lemmon v Webb from the roots situation, but Mynors adds a comment from the judgement that I think is what you referred to and which is highly relevant to the generality of nuisance from trees. "Where there are two ways of abating a nuisance the less mischevious is to be followed". However, I am so clear in my mind now that roots are so different from branches, insofar as nuisance has to be proven by damage, that the abatement of nuisance exemption does not apply to roots as it does to branches and would not apply in this case. I am certain there is case law that shows that 'necessary' means just that, not 'desireable' or 'possibly needed' or any less clear and less extreme interpretation.

 

Greater minds than all of ours have propnounced on this stuff long ago, and reading Mynors guides you along their footprints. So the aforegoing brings me full circle to my earlier conclusion about this and why I dropped it, albeit I got there by a shortcut on the first visit.

[Alan Webster]

Ah but this is overridden by statute of TPOs and is only exempt if the action is necessary. I am inclined to agree with the sentiment in btggaz's post. If there were no TPO you would of course be entirely right, subject in my mind to chasing up the rteference you provided on the matter of mischieft.

 

Please refer to my post above

[daltontrees]

We are assuming the TPO is irrelevant due to the detailed planning permission.

These cases are therefore relevant to the removal of the roots and where several posters have said there should be compensation owed.

 

You are quite correct that the nusience exemption should not be relied on as the case law is complicated. With the case of Perrin the outcome is considered to be incorrect by others.

 

The roots are TPO'd. The abatement exemption doesn't apply. I am not at all convinced the planning permission exemption applies. If anything it appears not to.

[Alan Webster]

dalton:

"However, I am so clear in my mind now that roots are so different from branches, insofar as nuisance has to be proven by damage,"

 

what have you read to form this opinion?

[daltontrees]

Please refer to my post above

 

Have done, but subsequent to you posting I have looked into the 'mischief' matter, see my comments.

[daltontrees]

dalton:

"However, I am so clear in my mind now that roots are so different from branches, insofar as nuisance has to be proven by damage,"

 

what have you read to form this opinion?

 

Mynors, cover to cover.

[Alan Webster]

Mynors, cover to cover.

 

As we are having a discussion about something that we obviously have different views on, it would be useful to provide a quote or reference to back up your stance.

As you have read Mynors cover to cover how did you not remember the mischievous quote?

You still have not given a good argument on why the planning does not over-ride the TPO