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daltontrees

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  1. I am glad that you recognise that there can be nuisance without damage. At least we can discuss this issue now in the current century. The important thing about the Network Rail judgement is that it's a statement of the law of nuisance, not a statement of the law of nuisance as it related to Knotweed. It was a conscious decision by the MR to make a modern statement that can be applied to and cited in ANY nuisance case. Tree people seem to be guilty of being unable to assimilate non-tree cases into their understanding of the law, whereas the law has no difficulty in applying the generalities of the law to tree cases. I honestly don't see the problem of interpretation. Light is a natural riught. A neighbour's tree is encroachign and depriving you of that natural right. You can abate (Lemmon v Webb). You can if it is severe enough force the neighbour to abate (Halkerston v Wedderburn). The TPO legislation says not only that you can abate but you can prevent, suggesting a pretty low threshold. I have advised clients that they can self-abate in TPO and CA situations. That's not risky, that's the professional thing to do because my duty is not to trees but to people and if they have rights they should know it and know that they can assert them. Difficult to defend? I don't think so. Difficult to prosecute, yes.
  2. It's probably an uncomfortable truth for TOs. Dr. Mynors advocates the idea that the TPO exemptions such as nuisance abatement are necessary to avoid a tree owner being in a situation where he is in negligence at common law but cannot remedy it because of a TPO. That is intuitively correct and in a civilised society cannot be any other way.
  3. Well since we're being blunt, I have to say that you are wrong. But don't take my word for it, the law was stated in modern terms by the Master of the Rolls in 2018 in Network Rail v Willians and Waistell. "... although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them. In Hunter at 695C, for example, Lord Lloyd said that nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law." "... the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance because nuisance is derived from the old form of action on the case must be treated with considerable caution. As to the proposition, see, for example, Lemmon v Webb [1894] 3 Ch 1, 11, 21, 24; Davey v Harrow Corporation [1958] 1 QB 60, 71; Hunter at 695D; and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, [15] and [33]. It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one." "It is also well established that, in the case of nuisance through interference with the amenity of the claimant’s land, physical damage is not necessary to complete the cause of action.". and later in the written judgement... "Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance." Or, in short, nuisance is not damage, it's interference with property rights. One of those rights is light. Another is the right not to have your property damaged. Break free of the tyrranical misconception created by Lemmon v Webb and driven into the head of every arb student. There does NOT need to be damage for an action in nuisance to succeed. And so, if it's actionable, it can be done under exemption in a CA or TPO situation. It's not me that's right, it's the Master of the Rolls and he's the highest civil law authority in the commonwealth. There's even a reported case in the Court of Session in 1781 where nuisance by light blockage was actionable. One more time - There does NOT need to be damage for an action in nuisance to succeed. It's the law.
  4. There's a superficial similarity between Cercis and Cercidiphyllum. But as the name of the latter suggests it has two (di) leaves(phyllum). Your picture has diretly opposite pairs, as with Cercidiphyllum. If you ever see a Cercis you'll appreciate that the leaves are alternate (left-right-left) on the twig.
  5. I have an article from 1888 where the author (Gregory) fished about for any other name having been attributed to these, and she ends up after 12 pages calling them 'cork-wings'.
  6. Sorry ot pop your bubble, man. Cones are way too big for Lawsons, but it's got the right hingy look of one.
  7. Yes it's definitely a scabby conifer. It might be 'weeping' partly as a consequence of the weight of cones. My guess based on cone size relative to scales would be a Nootka. I no longer care whether it's Xanthocyparis, Chamaecyparis, Cupressus, Cupressocyparis. Should be all lumped together in a new genus Scabbyconiferus.
  8. I am sending you the 1993 article just now. I have seen reference to verious other Mattheck article years, some in german and none of which I have. Do you mean Mattheck 2006 "Shear effects on failure of hollow trees." Trees, 20, 329-333.? There's also a 2008 article by Gruber which I am sending too because it sets out quite tetchily I think to refute the t/R 0.3 'rule'. If youy turned up the 2006 article do let me know please.
  9. i have the original article in the office if i remember to send it. feel free to remind ne
  10. Also, hopefully, a guard against people being hurt. The assessment isn't nearly as important as sharing the discussion and findings with site staff. Proof of that is paramount.
  11. I've haad a weak anke since I was 16, goes over regularly. I have developed areflex action that involves me dropping to the ground instantly when it happens, which saves me damaging it but gets some fully looks in Tesco. The elasticy white stuff is totally the best. Hot tips are to shave your ankle regularly and only put one strip vertically right round the bottom of the foot from ankle to ankle (like a stirrup) and one around the ankle on top of it to hold the vertical one in place.
  12. There is a common rule of thumb in daylighting calculations called the 25 degree rule. It is derived from the British Standard for internal daylighting BS8206-2, essentially it means that if the vertical angle between the mid point of any window facing a solid continuous obstacle to light and the top of the object would be greater than 25 degrees the internal daylighting may be below the minimum standard, and a more detailed analysis would be required. I'll not get into the detail of it, but that's the basic 'rule'. I dont know where the 38 degrees came from. Hopefully it's clear that the further way the window is, the smaller the angle becomes for any fixed height of obstacle. It would be possible (and I would say it should always be the case) that the mature rather than current height of the trees that are being treated as the obstacle could be used. If so, this would give a distance which could be insetted into the angle calculation in reverse to give a current equivalent angle for the current height of the trees. If so, it would be much much better just to state the distance. So, ATan 22/28 = 38 degrees. The rule if it is being used in this way would only work on level ground and only if the trees are of uniform height for most of the panorama left and right of the window positions. Plus if the height of window has been ignored the buildings could in teory be almost 2 metres closer to the trees. Plus account needs to be taken of the window design, room sizeds and most importantly room uses. Kitchens require twice the daylight of bedrooms. Living rooms are half way inbetween. It's possible to do a full analysis using measured and calculatee Vertical Sky Components and Average Daylighting Factors for rooms. It's time-consuming, though. Rules are no good if the rationale and limitations behind them is not understood so that the user knows when the rule cannot be safely used.
  13. Removal of branches from a TPO'd tree because of light blockage can in some circumstances be lawful without consent, but the light blockage would need to be really quite bad, constituting an 'actionable nuisance'.

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