Local Govt Misc Provision Act

[Nick Harrison]

Anybody ever had to issue one of these on behalf of a LA?

[Chris at eden]

Yeah. Its a ridiculous bit of legislation which is usually ignored by the person it is served on. The LA then takes on the liability if they don't do the works. The powers are discretionary so if you can avoid it that isn't a bad idea. There are different requirements in each of the sub sections as well. For example, s23(1) requires the danger to be imminent yet others don't seem to. What is the exact situation? You should also run everything through legal before you send out.

[Nick Harrison]

Basically had a resident complaining about his neighbours tree saying it's too big and therefore dangerous. At what point do you decide it's worth investigating when time is so limited? Have managed to delay responding for now but have a feeling he'll be back!

 

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[Gary Prentice]

Oh the "big - therefore dangerous" tree problem. Don't you just love the public?

[Chris at eden]

Basically had a resident complaining about his neighbours tree saying it's too big and therefore dangerous. At what point do you decide it's worth investigating when time is so limited? Have managed to delay responding for now but have a feeling he'll be back!

 

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Read section 23 of the act carefully and run your thoughts by legal and remember the council are not the duty holder, the tree owner is. If the neighbour has an issue with the tree next door they could hire a consultant to inspect the tree themselves and get a solicitor to write and put them on notice if there is a problem identified by the arb consultant. As soon as you go and inspect you become duty holder at least in part. Consider also, how will you inspect properly without access. If you work in planning you may have right of access but these powers of access don't go down well with residents and you may end up calling the police so bit of a can of worms really.

 

From the sound of things they haven't actually said there is anything wrong with the tree. Big is not necessarily dangerous so I think you would need more to go on. If they were to say the tree is a dead 80ft poplar with honey fungus at the base and it was stood next to a school playground that would be different but in reality, the powers are still discretionary and the duty holder is the tree owner. But in that latter instance it would be reasonable to look into the issue and unreasonable to not. With the case you have is it reasonable to expect the council to inspect a private tree when there are no real concerns? is that a good use of public funds? if yes then inspect but if not don't. As I said previously though always run these things through legal as they are the experts and different LA's will take a different view.

 

These are just my views and experiences and should not be considered as expert legal advice but I hope this helps.

[Nick Harrison]

Appreciate the advice. My feelings the same, resident could not offer any reasonable info as to why the tree is worthy of intervention other than it's height. Was trying to get it through to the chap that I need more to go on more than just a simple complaint of that. Ultimately tho I'm left thinking should I go look just in case this tree has significant issues, very difficult when weighing up resources in this type of situation. The advice to check with legal is a worthy suggestion. What puts me off visiting is as you say, once you see the tree that immediately puts me in a tricky situation if there is nothing definitive to find. Thanks for the input. Will post any developments

 

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