daltontrees

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.

If a branch is an 'issue' to a neighbour it probably comes under the 'prevention or abatement of a nuisance' TPO exemption and doesn't need permission.

Puts me in mind of Daldinia concentrica at a very early stage. Are you sure that's Sycamore, the bark looks more like ash, which would be the most common host for Daldinia?

Only that I wasn't sure whether roman law treated urban and rustic trees the same in terms of rights to cut back.

There's not much to add. First a correction - the twelve tablets were carved in wood, not stone, then fixed to a wall. Unfortunately all that survives of them is a few quotes from them in later roman legal cases or writing. Roman property was classed as either urban or rustic, depending on whether they related to buildings or agricuture. I genuinely don't know whether the right to cut back to a boundary applies to both but it has been suggested that urban owners were obliged to keep their trees pruned back to a height of 15 feet. This may not have been so important in the rustic context, and there may have been a different rule. There was a system of penalties which were quite elaborate. But I think the most elaborate roman punishment of all, reserved for killing your father or a close family member, was to be sewn into a leather sack with a monkey, a cock, a viper and a dog, and thrown in the sea. Permanently. Yes, they did this. But even the romans must have thought this too elaborate (or maybe monkeys were getting hard to come by in the distant corners of the empire), and later (4th century) softened a bit and preplaced this punishment with being burned alive. And people these day bleat about human rights when somebody says boo to them! And back to the original point, as I have said people (and tree people in particular) seem to be unhappy to state the law unless ther has been a specific tree case in almost indentical circumstance to their own, but good law, tee best law, has no case law because it is so clearly understood, so innately fair and so easily applied that it needs never to come to court. I would encourage anyone not to start with case law but to understand the general principles of natural rights in property, negligence and nuisance. From these stem everything. Land ownership is from the centre of the earth to the top of the sky. Encroaching branches prevent you using your property, so that is nuusance, and if damage is done by it, that is negligence. Everything else is fine detail.

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least. The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables. English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed". In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries. Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

I agree except about killing the tree, there is no such restriction, this is settled law since the dawn of time, Killing it does not constitute criminal damage if it is to abate a nuisance and is done without malice or spite.

1. I don't recognise the species. 2. There's no legal limit on proximity of planting. 3. Tree encroachment can't be classed as criminal damage. However, it can (nad your case probably is by now) nuisance and negligence, two closely related but different legal principles. 4. Whether your house coudl be damage d depends on a lot of complex factors such as species, foudnation depth, climate, soil type, foundation depth and so on. Put the Council on notice (in writing, nice and clear, no waffle) that you consider the encroachment to be nuisance attracting liability and invite them to deal with it promptly, reserving the right to deal with it yorself by cutting back any roots or branches across the property line. You shouldn't have to put a root barrier in, but it could help with future root encroachment.

Usually property is covered under public liability. Arborisk that I have, for example, is very clear about this in its Public and Products Liability policy.

BGS I think withdrew its online map site but replaced it with a slightly (Beta) better one. Here's the one I use https://geologyviewer.bgs.ac.uk/?_ga=2.264636559.1060876221.1657217743-1316232915.1657217743

Annex A of BS5837 also provides general guidance

The attached gives some guidance on shrub species for sewers, generally says don't plant closer that mature crown spread. Sewers for Adoption sep2013.pdf

It's going to get worse.

In England the guidance says that "other factors, such as the importance as a wildlife habitat, may be taken into account which alone would not be sufficient to warrant a TPO". At this point it starts to go all fuzzy. Habitat can be a factor if it is there to be enjoyed. Conservation of habitat in its own right, in the interests of science or for the benefit of special audiences for example, is not I think a logical part of amenity. If you want to get into this aspect up to your ears, see what Dr. Mynors the author of the only book on tree law had to say in the current review of welsh planning law. He was suggesting that for scientific interest to be preservable by TPO the definition of amenity should be changed (yes, I know that's as ridiculous as it sounds) to include scientific interest. Personally I suggested to him that instead of trying to distort the engish laguage as a contrived means of achieving sonething he should add a separate habitat criterion for TPOs. And there it really gets farcical. Trees create the environment for other habitats but they are not necessarily the habitat itself. Ancient oaks with fragile irreplaceable deadwood habitats might well be a case for preservation on scientific interest grounds but it hardly comes under the heading of pleasant amenity. But is it right to preserve trees because they have nesting birds? Or bluebells beneath them in spring? The bluebells are pleasant, but they're not trees. I see Woodland TPOs being promoted on the basis of habitat, in places where the public cannot see or visit them. I personally think this is ultra vires. Meantime the government is happily blitzing ancient woodland for railways. The system is increasingly incoherent.

It doesn't even try to define amenity. In FFF Estates v Hackney LBC the Court of Appeal suggested it meant "pleasant circumstances or features, advantages". In Cartwright v Post Office a definition was decided upon as "[its] visual appearance and the pleasure of its enjoyment".

I dpn't know what it's liek in England, but up here Councils are using conditions to protect trees under the justification of habitat protection. Currently I have one where the tree removal is not being allowed because the tree is contributing to climate stabilisation. Recently I had a TPO imposed to protect habitat, which is not a lawful use of TPO. The overall sense is that it's all a bit out of control. A bit more than usual, that is.

In such situations it is appropriate I think to point out that the written government guidance is that planning conditions should not be used for the long term protection of trees.

Wow, you're really getting into this. Yes there is a lot of inconsistency coming from Councils, but one has to take it as one finds it. A houseowner could apply to discharge a condition as it relates to just his house. The Council could compeltently discharge it. Whether the house owner can implement the discharge is a different matter, it may be a matter of contract with the developer. Even if a person bought from a developer and wasn't specificalyy told about planning conditions, missives would invariably throw it back to the buyer to satisfy themselves, and in turn the buyer's solicitor would to a property enquiry with the Council which would throw up the permission, but probably not the specific conditions. The buyer generally would be expected to check. I can't ser the developer being in breach for non disclosure. You raise a strange paradox about self abatement. I don't think that self abatement is a lawful option until the whole development is completed but I have in the past advised house buyers that enforcement and prosecution would be highly unlikely as long as their bit of the developent is complete and the threat of construction damage to their trees is past. This seems correct in some situations, but not all, amnd I wouldn't advise it generally. And as I speculated in a recent posts about enforcement, there seems to be no mechanism for meaningful penalties for one-off tree breaches.

Planning conditions run with land, not with ownership. So in the described situation the conditions prevent tree removal until the conditions of the whole consent are discharged by completion of the whole development. Unless varied on application.

Yes the nature of CAs is that they don't actually protect trees they just give the LPA the opportunity to consider the importance of individual trees later if their removal is proposed. The CA (in Scotland anyway) has to be accompanied by a CA appraisal (this will be the stand-alone document you mention) which states what is important about the CA. This should and generally does include a section on which classes of trees are important. If I have a contentious CA notification to do I usually quote the CAA. I generally consider it relevant to point out situations where the trees have no historic or architectural context and/or are actually detracting from the framing of historically or architecturally important views. LPAs are much more interested in the architecture than the trees, but trees can occasionally be worth protecting in tree lined avenues or parkland settings. Technically the interesting matter is that to prevent removal the Council has to make a TPO and this (in England and Wales anyway) can only be justified "in the interests of amenity". This may or may not be the same as the special cheracter that the CA is designated to protect, but if a subsequent TPO application is made it should be considered without regard to the CA criteria. Concluding, the word 'amenity' is all-important in both TPO and CA situations because it is the one and only statutory test. (In England anyway; the situation is considerably more complicated in Scotland; I have lost track of Wales; Northern Ireland planning law is a mystery that I leave alone until I have to).

Is the neighbour's tree in a Tree Preservation Order or Conservation Area?

This is one of those 'light blue touch paper and retire' posts, isn't it, where a punter joins arbtalk, asks a question then buggers off never to be heard from again, leaving behind a squabble of speculation.