neighbor dispute

[arbormonkey]

Thanks for the advice everyone. I rang him up last night just said sorry you will have to get someone else.

[10 Bears]

Have you a reference for this? I know of a couple of LA's that take a different view!

 

I've only just got back to this and it seems there has been a lot written since. I haven't read anything else - so apologies if I'm repeating information already put down.

 

Turns out, it wasn't Mynors that I was thinking of, its a really useful book called Neighbours and the Law by Pugh-Smith, Sinclair and Upton. I got this a few years ago as I had a nightmare neighbour and wanted to know where I stood on a few issues. Its been a useful book since.

 

Anyhow, so I said to abate back to the boundary etc over-rides TPO. NATL states, "The right to abate nuisance exists even if the tree itself is subject to a tree preservation order" (6.07 p213) and it further states that this is clarified in the Town and Country Planning Act. The key issue is that there is an actionable nuisance (which admittedly is not clear in a re-read of the OP).

 

So what is actionable then? There has to be some sort of impingement on the affected landowner's enjoyment of their land or something tangible like damage eg root uplift or water losses from lawns etc.

 

Just a guess of course with regards to the OP, but in this case, the situation may be that recently planted bedding plants are not being able to grow in the overhang of the hedge - this would be a loss on behalf of the affected landowner and there is an avenue for abatement.

 

You raise the point that your local TO may have a different point of view and no doubt you are right! In practice with anything like this, I would always consult/advise them of the situation before I went ahead with anything. Irrespective of any interpretation of the law, I would always be upfront about what it happening on a site...

[10 Bears]

Well yes but I wish you all the luck in the world getting plod to take it seriously. Its also worth noting that if you are forced to abate the nuisance and the other party acts up you can always offer a counter suit to cover the cost of disposal

 

Interesting comments here, but I can speak from experience about the 'plod' issue.

 

Without giving too much information as this is ongoing, I have recently had a client that was hauled to the station, read his rights and held for a period of time while statements were taken - all because he pruned back a neighbours tree.

 

This has been a long standing dispute, even with an element of physical confrontation, but the police were happy to pursue potential theft of private property when they found the arisings in the back of my clients trailer. Fortunately, it did not go further as he had some evidence to back him up. Sorry cant give more details, but it shows that the police in some areas will follow this through.

 

A good point about the counter suit - although this is where things can start to get messy ie making claim and reclaim. Not a pleasant business.

[Stefan Palokangas]

Been in situations like that a few times, they are costly.

 

I lost almost a full days of work, hire of chipper for the day.

 

Nightmare.

 

I told customer to deal with this, and then i will be back. when i came back they was still raging. but i just did the work, with god knows how many photos taken on me and neighbors shouting to each other. Not an ideal job.

 

Some works is good to just walk away from.

[daltontrees]

I don't think this is a correct statement of the law. Or to put it another way, I think that this is an incorrect statement of the law. it is the tree that is TPO'd, not the area that it occupies.

 

Apologies to 10 Bears I misread your posting. What you said was correct.

[Gary Prentice]

Apologies to 10 Bears I misread your posting. What you said was correct.

 

Guess that's why they're called exceptions.

 

 

The real risk that I can foresee, is that people cart on exercising the common law right/statutory nuisance exception without realising that only the judge, ultimately, will decide what is actionable.

 

Whilst I agree with 10 bears that inadequate light or moisture to bedding plants might be construed as actionable, having caused damage or loss, I myself wouldn't proceed with confidence that a judge/magistrate would agree. Surely there must be a minimum level or degree of legal nuisance applicable?

 

Woul the man on the Clapham omnibus think it reasonable in this example?

[daltontrees]

Guess that's why they're called exceptions.

 

 

The real risk that I can foresee, is that people cart on exercising the common law right/statutory nuisance exception without realising that only the judge, ultimately, will decide what is actionable.

 

Whilst I agree with 10 bears that inadequate light or moisture to bedding plants might be construed as actionable, having caused damage or loss, I myself wouldn't proceed with confidence that a judge/magistrate would agree. Surely there must be a minimum level or degree of legal nuisance applicable?

 

Woul the man on the Clapham omnibus think it reasonable in this example?

 

Personally I don't think the bedding plants thing is actionable. They must have been planted under a tree, and a reasonable man would not do that knowing thatthye would not thrive in the inevitable shade of a tree.

 

But more generally, it seems right to appreciate that a TPO is an imposition, bringing with it unavoidable compromise to a man's right to do with his tree or the encroaching brnaches of his neighbour's tree whatever he wants within the gamut of common law. Does shade of bedding plants trump the societal amenity benefits of a tree that has been selected for preservation. I don't think so. So I don't think the nuisance could be abated lawfully under the exemption.

 

Just my opinion, it's a matter of degree. I think it would be competent for guidance to state the types of things that would fall under the exemption, but the guidance would have to be careful in sidestepping definitions of 'actionable'. If that makes sense?

[10 Bears]

Personally I don't think the bedding plants thing is actionable. They must have been planted under a tree, and a reasonable man would not do that knowing that thye would not thrive in the inevitable shade of a tree.

 

I see your point, but under the charge of 'private' nuisance this situation would stand IMO as the defendant (chap owning the hedge) is "causing a substantial and unreasonable interference with a claimant's land or his use or enjoyment of that land" as defined in Bamford v Turnley (1860) - a key precedent tort case.

 

Or to put it another way - Just because you cant control your hedge, does not allow you to prevent me from using my land in the way that I want. Hence even the death of bedding plants is a legally 'reasonable' case to make. I think that the issue is that under the legal definition of nuisance, there is the right to the 'quiet/peaceful/pleasant use of their own land' - so again supporting my view that this overhanging hedge would be affecting the rights of the claimant, so I believe that even for the death of bedding plants - they can abate.

Edited May 8, 2015 by 10 Bears

[woodyguy]

Interesting discussion. Clearly the argument is really about what is regarded as a nuisance in custom and practice eg branches damaging roof tiles and making roof leak vs right to light, water and a view which are very iffy and probably wouldn't stand up in court. I guess what always interests me is being confident enough in what I do that when they consult a lawyer he tells them to forget it. So I'd prefer to stick to broken roof tiles rather than parched lawns.

[wicklamulla]

Had to deal with this last year, large looming Lime tree overhanging into my customer's garden (from his neighbour's side). Basically my customer couldn't get house insurance because of the tree looming very close to the roof/chimney. My customer was gr8 as he dealt with all the legal side of tings and researched the relevent laws entitlements etc. His neighbour was a 'knob jockey' and had tried to gimme grief when i was there doing tree works previously....this i revel in and simply laugh it off (when i know i'm within my rights and within the law). My customer took alot of photos and set up a laser line along the boundary line so we had 'every angle covered'. The knob jockey was shouting at me to stop but i had not entered his garden or 'air space' and i did not even prune the Lime back to the boundary, but i told him 'if you don't quieten down then i will prune it back to the boundary line', so he wandered off. He was offered the arisings/cord wood etc but declined. On another occasion at the same customer we were felling out some large oaks in his garden so the petty neighbour rang Clinton Devon Estates and claimed we were felling their trees, they turned up and were fine with what we were doing as it was none of their concern, but they were pished off with the petty, time wasting neighbour. Would i get involved in that sort of caper again ? YES, as long as i was certain it was all legal and above board.