A Conundrum.

[kevinjohnsonmbe]

 

Kevin, under the veneer of politeness and civility there is a streak of evil and vindictiveness escaping.:

 

Ha, ha! It's not a very substantial veneer Gazzer but I do try - just a slight tempering over the years of a deeply engrained bullish and uncompromising determination! I'm mellowing (slightly) with age but the mean streak bubbles to the surface when my guard is down....!

 

Doubt if this is 'wilful damage', as the Act says. But it's always a factor that TPO'd trees are protected in their entirety even roots under neighbour's land and gradual damage could be bad for a tree. But gradual compaction or pre-compaction would reslult in less roots in the parking area anyway.

 

Can't help but think the neighbour might be justified in presenting a case of actionable nuisance which could??? empower him to take unilateral action to remove overhead branches regardless of TPO status and without recourse to LA for approval.

 

I wish somebody would at some point soon if only to answer the question once and for all.

 

Now there's a potential de-rail and a can of worms opened.....

[Gary Prentice]

I thought a nuisance was only actionable when a court deemed it so, thus overriding the TPO.

[daltontrees]

I thought a nuisance was only actionable when a court deemed it so, thus overriding the TPO.

 

You and Kevin, you are prone to prod my doubts sometimes, but for once I am going to resist spending 20 frantic minutes re-reaidng case law, and shaking Mynors (the book, not the person) by the spine in the hope that some new perspective on this will fall out and land at my feet. If Perrin v Northampton taught the world and us anything it was that we probably can't take anything for granted in tree law.

 

A good, (or even a bad) night's sleep will improve my perspective, and maybe the tree law elves will put together a perfect answer overnight and leave it for us to find in the morning?

[kevinjohnsonmbe]

You and Kevin, you are prone to prod my doubts sometimes, but for once I am going to resist spending 20 frantic minutes re-reaidng case law, and shaking Mynors (the book, not the person) by the spine in the hope that some new perspective on this will fall out and land at my feet. If Perrin v Northampton taught the world and us anything it was that we probably can't take anything for granted in tree law.

 

 

 

A good, (or even a bad) night's sleep will improve my perspective, and maybe the tree law elves will put together a perfect answer overnight and leave it for us to find in the morning?

 

 

Brilliant! I had the same this afternoon! Was waylaid by having to go out for roast dinner.

 

Can't face book diving and a sleepless night so going to blank it out of my consciousness!!

[TIMON]

Do these sort of people actually get any joy out of their pathetic lives?

 

Only the joy that they manage to suck out of other people's lives.

[Gary Prentice]

You and Kevin, you are prone to prod my doubts sometimes, but for once I am going to resist spending 20 frantic minutes re-reaidng case law, and shaking Mynors (the book, not the person) by the spine in the hope that some new perspective on this will fall out and land at my feet. If Perrin v Northampton taught the world and us anything it was that we probably can't take anything for granted in tree law.

 

A good, (or even a bad) night's sleep will improve my perspective, and maybe the tree law elves will put together a perfect answer overnight and leave it for us to find in the morning?

 

Brilliant! I had the same this afternoon! Was waylaid by having to go out for roast dinner.

 

Can't face book diving and a sleepless night so going to blank it out of my consciousness!!

 

 

I started to doubt my own answer soon after submitting it, as being too brief to be exact.

 

I think there are a two courses of action to which the 'actionable' exemption may be utilized.

 

The legal route would be via County Court, resulting in the owner being forced to do what is necessary to abate the nuisance by the court. The judge decides that it is actionable, hence works necessary are exempt from the TPO.

 

To result to self help I think the new regulations require a five day notice. Then the LA make the decision whether or not the works are exempt and probably direct the extent or degree of the works agreeable/acceptable/allowable under the exemption.

 

I don't know what the penalty actually is for failing to submit a '5 day notice', does anyone? But can't imagine many circumstances where work would be so immediately necessary to abate the AN that they'd be much defense for not submitting one.

 

So in summary, what's actionable is decided by either the court or the PO/TO, relying on it otherwise you'd better have a good defense team on call.

 

This is my understanding anyway.

[bolthole]

So... isn't this down to what's 'reasonable'?

 

The neighbour is parking his prized vehicle under a tree - isn't it reasonable for him to expect that leaves/fruit/nuts/pollen/sap will fall from the tree onto his vehicle? Maybe the odd small twig?

 

Hasn't he accepted that this will happen by parking his vehicle where it is, assuming there's no negligence involved as regards any adjacent tree.

 

If damage occurs because something 'unreasonable' happened, usually a large failure resulting in a non-trivial loss then there is scope for the owner of the tree to be liable but only if it can be demonstrated if this was in some way due to the tree owners negligence.

 

So, if the owner of the tree can demonstrate that they have fulfilled their duty of care (which it seems they can apparently) surely Mr Camper van has no complaint.

 

We wouldn't expect Mr Cv to seek redress for atmospheric oxygen causing rust to his vehicle, or water on the roads, becuae that would be 'unreasonable'.

 

We would expect him to seek redress for damage caused by a pothole because it's the LAs duty of care to maintain the roads. A pothole present that caused damage when driven over at a legal (reasonable speed) would be beyond what we'd reasonably expect to find and the LA would be liable, having failed in their duty of care. They could still wriggle off the hook if they could prove show that they'd acted 'reasonably'... so if the pothole emerged under some sort of exceptional circumstances beyond their 'reasonable' control.

 

Similarly, if the tree fell on his Campervan (heaven forbid!) but there was no reasonable way for the owner of the tree to forsee that this would happen, and this could be sucessfully argued in court, there would be no liability.

 

Simply put, the presence of a tree, just being a tree, is not grounds for Mr Cv to have a legal complaint against the tree owner.

 

Can anyone reasonably argue that I'm wrong?

[daltontrees]

I found this reference on Google.

 

Private nuisance, as defined in Bamford v Turnley 1860, amounts to “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land.”

 

So in this case the branches are a continuous state of affairs, but I can't see how they are a substantial or unreasonable interference with the use of the land.

 

It is so important to remember that nuisance, as used in the Tree Regs, is not in its common sense but in the legal sense, such as given in the abovementioned case. And the use of the exemption is only to the extent required to abate the nuisance, not to eliminate all encroachment.

 

And inevitably the word 'actionable' has to be examined. It carries with it the principle that the wrong must be creating actual and measurable damage or loss of enjoyment.

 

The Tree Regs don't say 'for the ... abatement of an actionable nuisance' they just say 'for the ... abatement of a nuisance'. But I think it was clear from Perrin that the nuisance has to be significant to the extent of being actionable. If it was truly Parliament's intention through the exemptions to make sure TPOs don't cause someone to be in a situation of being unable to abate a nuisance that otherwise would find him on the losing end of an action for nuisance, then that's entirely appropriate.

 

And that's what I'm going with for now.

 

Should Gary's client, rather than getting a deliberate TPO application knockback, serve 5 day notice on the Council of his intention to abate a nuisance? Well, I see an important point here, the Council that receives a 5 day notice and doesn't prevent the work is not condoning it. The 5 days may be provided only to allow the Council to visit and take evidence of the condition of the tree. The Council's failure to stop the work is not, in my current thinking. proof that the nuisance is actionable. How could it be since the Council may not be party whatsoever to the preceding exchanges between landowners and such evidence as there might be that there is measurable loss. They can't know if it's actionable, at least not quickly enough to stop the work. Do they even have the legal authority to stop it? I don't think they do. The course of action would be to prosecute for abuse of the exemption. Like Gary, I don't know what the penalty for that is, but I guess it's akin to or the same as unauthorised work to a TPO'd tree.

 

I am pretty sure the courts are satisfied that tree owners do not have to anticipate and prevent actionable nuisance (except subsidence cases, which are deemed negligent because foreseeable, the question of measurable damage being self evident). Nuisance is after all in the eye of the beholder.

 

I am baling out in case I have to look through Perrin again, which I never want to have to do.

[bob]

Some really good and informative posts:thumbup:

From a claim perspective the thing that usually dictates payment or not payment is if we are made aware and what we had done following that generally referred to as been placed under notice.

If we have not been warned that it may damage the wall or path ect then we likely can repute any claim (as long as reasonable)

If following the neighbours the neighbours report he then carries out some reasonable work to prevent the situation deteriorating he will then be fine until the issue is raised again.

Hope that made sense ish haha

[Stock]

And where will his attention be directed once the tree is gone?? no pleasing some you know not ever..................