daltontrees

My recommedation would be that not checking with your insurers before removing the tree is NOT a good idea. If there are shrinkable clays and subsidence has happened in the past and has been repaired but not underpinned, removing the tree will casue heave and a whole new set of damage. Check with your insurers. You can't sue Arbtalk.

I enrolled on a chainsaw course just to get me started, met a guy on the course who was in the same situation, we started a busines stogether and made it up as we went along. What was hard was identifying and sticking to good standards while all around I saw cowboys and chancers with no qualifications, insurance, PPE or elementary knowledge of trees devastating peoples trees in my patch and putting themselves, their subbies and the public at risk. The solid foundation we worked from was the NPTC/LANTRA courses and qualifications and the lore gleaned from some good instructors. I was and am appalled at the almost complete absence of reliable information and policing of standards, H&S, law etc. It was all made easier by deciding to always do things right in the hope that reputation then income would follow. It did, eventually.

Answering now because I said I would but didn't get round to it. The answer's the answer no matter who asked the question or why. It is easy to get distracted by speculating about an OP's motives. Call me an anorak, but I'm really only interested in learning and disseminating knowledge. As is often the case when a question is asked on Arbtalk I am dismayed if I don't know the answer and I feel the professional need to go off immediately and research it properly. Then I know, and I think why not share that with others? I am tortured soul.

I was stuck in an office job I hated, drowning in management nonsense. Mid 40s I baled out, decided to satisfy a life-long urge to be involved with trees, made a deliberate decision to work as a contractor for 5 years to learn the business as a route to cosultancy. And by and large that's how it went. Started arb business, went into business with someone. WIthin 5 years , knocking on VAT registration but already had done the professional exams. Business partner emigrated, I was turning into a manager again so I wound down the contracting business and now am run off my feet purely on cosusltancy referrals. Nirvana, getting paid to look at trees. It hink this counts in the poll as 'other'

What a bizare thread. There is a long tradition on Arbtalk of not actually answering the question, at least not deliberately or directly. So for what it's worth I will try. There is no formal process to apply for the removal of a TPO. The Council has power to revoke TPO's. In England (unlike in the more civilised northern provinces) there is no obligation to review existing TPOs either, so it's probably not going to happen unless instigated by a tree owner. The owner can ask. The Council may not be arsed about it, but may consider it. The criterion would have to be the same as why it was made in the first place, namely (and again this is only in the uncivilised southern parts of the UK) for the amenity of the area. The area character or the visibility of the trees may have changed considerably since the Order was made, so there may be gounds for revoking the Order. But I expect any Council faced with a request to revoke an Order would probably presume that it's because the owner wants to remove it and expects that an application for consent to do so would be refused. I act for a planning authority sometimes and they are reviewing their Orders cyclically. Another planning authority I have dealings with have an Order which is 65 years old and the trees named in it aren't even there any more, but the Order subsists. One can only ask for revokation or hope for a cyclical review, but don't expect anything...

A growth deformity. Perhaps it helps the tree in some way to defend agaisnt damage, but if anything it seems to suit the Cryptococcus by creating a more sheltered substrate.

If the construction is all finished then in principle the conditions relating to retention and protection of trees has no further effect and it can be dealt with like any other dead tree, but it would make sense to check the planning conditions an also (before removal) take notes and photos that will be able to show later that it died naturally rather than because of breach of planning conditions. It can do no harm to let the planning authority know too. They'll probably be too shocked that somebody is being open with them to do anything. That said, there is in effect no penalty for breaching tree protection conditions.

That's a bit reckless! There's no such thing as a standard planning decision. Besides, this question relates to an existing tree which it has been decided must be retained and possibly protected. It wouldn't come within the remit of a landscaping plan or condition. Would you honestly advise a client or customer who doesn't want any comeback that "It all can be safely ignored as utter nonsense"?

I don't have a monopoly on being right. An apprehension about being wrong causes me to double-check things before committing to advice. But I do like helping people (and their contractors) understand their rights and obligations. It's good for society, and we sure as hell need a better society. For sure we live in a society where money can buy you justice or even help you avoid it. But in the situation of using the statutory exemptions it need cost nothing. Being pedantic (I always am) the right reminology is this - Basic level. 'Encroachment' is roots or branches crossing into another's property. It isn't the same as 'nuisance'. The next level up is 'nuisance' when the encroachment is preventing somebody making use of their own property. It may not be serious enough for a court to act on it, if so it is not 'actionable nuisance'. There is a right to self-abatement, without notice and generally without consequence. Next level up is 'actionable nuisance' which is so severe that a court would order the tree owner to abate it or make the tree owner pay back the cost of the neighbour dealing with it. It may or may not include an injunction/interdict preventing the tree owner from letting it happen again. In the CA/TPO context (and I think this is a really useful principle to understand) if exemptions are available they should be used; applying to the Council is NOT an appropriate alternative. Councils should reject applications or notifications that seek approval to use powers that are already available to people. In the 'nuisance' context it has nothing to do with how urgent it is (but tree nuisance is rarely urgent). Decide if it's a nuisance, or about to become it. If it is, deal with it. If it isn't, notify or apply. Time is not a factor. The 'risk' exemption is different. If it is 'urgently necessary to remove an immediate risk of serious harm', deal with it. If it's not (e.g. less urgent, less serious, alternative risk measures are available), notify or apply. I hope that helps. To refere back to earlier posts by me, the law is still slightly unclear on whther the 'nuisance' exemption is only for 'actionable nuisance'. But, teh 'revention' option appears to answer that question i.e. it doesn't need to be that serious for the exemption to be useable. The super-summary is that time is only a factor upon deciding if the risk is 'immediate'. And, I might be wrong. I hope not.

It wouldn't be sidestepping compliance if the law says it would be allowed. It wouldn't be trumping established regulation, it would be setting aside established misconception and custom and practise. It wouldn't be a legal precedent, because the law is already clear. Think of it this way. Someone's tree encroaches and prevents someone else's use of their land. At common law either party could and should do something about that. Why should the imposition of CA or TPO be allowed to prevent that?

Yes but remember you would only have to embark on such a journey if the local authority also had the nerve. It has to persuade its members and then the prosecution service of the legal basis for a prosecution. Which, on reading the plain english of teh legislation, it would fail to do. I believe Mynors to be right on this. As he suggests, the legislation cannot prevent someone from doing something that the common law obliges him to do i.e. causing legal nuisance. Unless you're the scottish parliament, but that's a different story.

This vertical fissuring may be (probably is) as a result of the insect Cryptococcus fagisuga (Beech Scale or Felted Beech Coccus).

Well, it is definable in the sense of it being the prevention of the rightful use of your property, but the list of things that could prevent it is elastic and the degree is always going to be important in seeing whether a court will entertain an action. It becomes even more difficult in deciding to exercise the TPO 'nuisance' exemption, since the only case on that says that it can only be used where the nuisance is 'actionable'. And considerable doubt remains on the correctness of that judgement. Time (and someone's deep pockets) will tell. Personally I don't see why everyone focuses so much on 'actionable' when the exemption allows not just for abatement of nuisance but for 'prevention'. In the dictionary in my head that means before it becomes a nusance, actionable or otherwise. A stich in time saves nine!

The highest civil judge in the land took the opportinunity in a recent japanese knotweed case to try and clarify the current law on nuisance. The most relevant bit of the decision is this 1. I would summarise as follows the present principles of the cause of action of nuisance. 2. First, a private nuisance is a violation of real property rights. That means that it involves either an interference with the legal rights of an owner of land, including a legal interest in land such as an easement and a profit à prendre***, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession: Hunter v Canary Wharf Ltd [1997] AC 655, 687G—688E (Lord Goff citing F.H. Newark, ‘The Boundaries of nuisance’ (1949) 65 LQR 480), 696B (Lord Lloyd), 706B, 707C (Lord Hoffmann) and 723D-E (Lord Hope). It has been described as a property tort: D. Nolan, ‘‘A Tort Against Land’: Private Nuisance as a Property Tort’ in D. Nolan and A. Robertson, Rights and Private Law (Hart Publishing 2012). 3. Secondly, 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. 4. Thirdly, 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. In particular, interference with an easement or a profit à prendre is actionable as a nuisance without the need to prove specific damage: Harrop v Hurst (1868-69) LR 4 Ex 43, 46-47, 48; Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, 349-350. Furthermore, in the case of an artificial object protruding into a claimant’s property from the neighbouring land, Mr David Hart QC, for NR, accepted that the claimant has a cause of action in nuisance without proof of damage. Although McNair J said in Kelsen v Imperial Tobacco Co [1957] 2 QB 334 that an advertising sign erected by the defendant which projected into the airspace above the plaintiff’s shop was a trespass and was not capable of constituting a nuisance, he so held without any reference to the previous authority to the contrary in Baten’s Case (1610) 9 Co Rep 53b and Fay v Prentice (1845) 1 CB 828 and so Kelsen must be considered per incuriam in relation to that issue. So far as concerns such nuisance from encroachment by an artificial object, the better view may actually be that damage is formally required but damage is always presumed: Baten’s Case; Fay v Prentice at 841. That, in itself, shows both the artificiality and elasticity of any requirement of damage for the purpose of establishing nuisance. The most relevant bit for aerial tree encroachment is the third paragraph, but I have left in the 4th to underline that nuisance is not always damage, as had been thought for a long time. There is also wide application of the nuisance principle, crossing over (no pun intended) into negligence where root damage and clay shrinkage are involved. Full case citation if anyone wants it let me know.

Having read the RHS and Arb Association guidance, I'd say they're both based loosely on the way the law was stated in Charles Mynors 1st Edition. The 2nd edition is less circumspect and less vague about the neighbour's rights. I wouldn't commend the RHS or AA summary of the law to anyone other than as a first port of call. If a situation gets heavy, I think the guidance will be found to be inadequate in some aspects. Whne I have had to deal with abatements I have not set foot on the tree owners land but have entered their airspace from the neighbours side only for the purpose of anchoring myself safely. I think that that is a perfectly reasonable act, whatever the guidance says. I would also use a ladder footed in the neighbour's land. If push came to shove as it sometimes does the neighbour could switch from self-abatement at his own expense to court action to force the matter at the tree-owners expense on the basis that refusal of access makes it too expensive or dangerous for the self abatemente option.

I believe the principle is that sending the arsings back over the fence against the tree owner's wishes is fly tipping. But I can't see the law wanting anything to do with it. A rally of brash tennis could then ensue and continue indefinitely. Such fun!

if the encroachment was deemed a nuisance, the court should award an injunction (England) or interdict (Scotland), which would require the tree owner to abate the nuisance at thier own expense. Failure to comply would be contempt of court, punishable with fines and eventually imprisonment. A court might find a non nuisance encroachment to be de minimis (i.e. too trivial for the law to intervene), and if so there would be no award. or, de minimis but award only costs.

I'd just add a coupel of things. Firstly a TPO would not necessarily stop the pruning. There is a statutory exemption from the protection offered by a TPO if (and to the extent that) pruning is to prevent or abate a nuisance. Pure encroachment that is not preventing the neighbour making reasonable use of their property might be protected by a TPO, but if there is any nuisance aspect, the TPO is ineffective. Secondly, the neighbour cold make the tree owner pay for the removal of branches, but it would take a court action to do so (or a negitiation in lieu of this). A court action that succeeeded woudl also cost the tree owner all the legal costs of the neighbour, so it's not a comfortable starting point for the tree owner in any negotiation.

And where is this?

That was in Sturges v Bridgman

Fair enough, but if the distinction between rustic and urban is unique to roman law and given that english law is not derived from roman law, it would be a matter of independent evolution. Which is an interesting prospect. You are right about Sturges, it very much is about the character of teh area as to what constitutes nuisance. A field of manure is one thing in the country and another in suburbia!

Clearly you haven't followed the thread. If you had you would have seen that I answered the OP's question a few posts in, and succinctly. The OP has subsequently disappeared, and everything since then has been harmlessly indulging the admirable quriosity of a fellow Arbtalker, on a subject that I happen to know quite well. It's not waffle, it's correct and mostly neeeded to explain why the answer to AHPP's question is not simple. If you know the law you will realise that. Instead you come along (your second post ever on Arbtalk!) to anonymously insult strangers, without making a single useful contribution. I don't give a f*&% how I come across to you, but if you think you can answer AHPP's question "What's the earliest caselaw that accepts it as the law?" in one or two sentences go right ahead. Make a useful contribution. Waffle as much as you like, but it'd better be right. Welcome to Arbtalk.

I don't see what Sturges has to do with it, it related to moving to a nuisance and whether the source of nuisance could say that the neighbour had thereby forgone the right to prevent the nuisance. Which of course he hasn't. That in itself is consistent (but for slightly different reasons) with Lemmon v Webb which said the nuisance never gains prescriptive right to be continued. And is Sturges not an english case anyway? There are still some significant differences between scots and english law on liability, which without doubt originate from differences between roman and medieval law. Are you really interested in whether scots law and the right to abate nuisance is founded in rustic or urban roman law? That's quite a subtle distinction to be making. As it happens, the court of session over-rode the roman law on the basis that in italy the shade from trees is probably a good thing but in scotland it's not. In making the distinction it relied on a french institutional writer. We're gettign in pretty deep here, and wheras I love all this stuff I am curoius why you want to know, or if this is in fact what you wnat to know.

Either way, doesn't look like sycamore. The commonest hosts for D.c. are ash and beech.

The authority and process to remove a TPO depends what country you are in.