daltontrees

Is this addressed at me? I'm just trying to help the guy to get to the point. You are inviting exactly the sort of potentially needless speculation that I was trying to avoid. It would be much more productive if OP could answer a few preliminary questions, to narrow it down. Where is he/she anyway?

It was a bit harsh, but what's the point in speculating and worrying someone unnecessarily? Chances of a peaty soil in an urban environment are low. That may just be the topsoil. So why read anything into it without knowing the geology?

Heave is dependent on soil type and climate, both of whch are location-sensitive. Where are you? If you don't say, there's no point in anyone commenting. There's already a low chance of shrinkable clays in areas that have coal deposits, but htat'sjust based on my geology background.

You also asked " Are we, as the owners of the trees, liable for minor damage such as lifting block paving? That prompted some general replies about law of nuisance and abatement. It may have seemed off-topic for me to go on about TPO exemptions, but I was only reacting to incorrectly stated generalities. It' a public forum after all, and I don't like the idea of people going away with a misunderstanding. You're probably in the wrong place if you expect to hear only from LA TOs. But why restrict yourselves to them? Don't you just want to know where any tree owner stands when faced with disproportionate demands for tree felling following minor damage? Why copy the pragmatism of others when you can come up with the right answer yourself? If you do, it's just a matter of common law. And the common law comes from case law. You may not want to get into court cases, but that's what happens. The Perrin case for example was required because up till then the law was not clear enough. It probably cost the parties (including the Council) tens of thousands each. And we get the answer for free. Including you. If you want to see the danger of generalising without understanding, read that case and you may appreciate that the answer can hang in a fine balance, and that you may need to take correctly calibrated scales with you day-to-day.

Still in denial? Mynors launches into this from the perspective of the neighbouring proprietor's rights at common law. 3.7.2 is mainly about whether his tenant can abate a nuisance. It is about the tort of nuisance, not about abatement. It does not say that a tree owner can't abate or prevent a nuisance. Of course he can. That's so obvious it doesn't need to be said. 17.5.1 is also from the neighbour perspective, but where there is a TPO. 3 scenarios are presented. Abatement by the tree owner is dismissed if it is to be done to abate a nuisance to himself. Quite rightly. But the section (17.5) goes on to conclude at 17.5.8 as I did yesterday that if a nuisance exists to a neighbour, the tree owner can prevent or abate it by carrying out work to his own tree. It's almost identical to common law. It really really is that simple. Please read 17.5.8.

I have done that. I am working from the 1st edition of Mynors. At 17.5.8 he says "It seems therefore that the 'prevention of a nuisance' means the carrying out of works for the removal of branches and roots of one's own tree that are encroaching over or into the land of a neighbour". Unless there's been a screaming and completely inexplicable U turn on his deliberations in the 2nd edition, I hold that I am in fact correct, the exemption may be used by the owner of a TPO'd tree to carry out work to it without consent, if and only to the extent necessary (all other solutions being disproportionatley expensive or complex*) to prevent or abate an actionable nuisance. The perusal of Mynors has been useful in reminding me that the courts and parliament see the statutory exemption as useable in the sense of common law nuisance, subject to the severity being 'actionable'. I am relieved that it is that simple. The compensation for damage provisions are a different thing completely, as I thought. If Mynors goes to a 3rd edition, the recent development of the law of nuisance particularly the validity of quia timet nuisance, would I think be such that the abatement exemption may be explained as allowing for work in the anticipation of damage. In the 1st edition he hinted at government intention to make changes. I wrote to him in such a tone during the recent welsh tree law review. *along the lines thrashed out in Perrtin v Northampton at appeal.

WRT preceding two posts, I am finding this explanation unsatisfactory, and I'd like to get tho the bottom of this with or without you guys' help. I believe it is wrong to assume that the compensation for damages provision in the 2012 Regs (and formerly in the Act) override the exception for abatement. I believe it is clear that the compensation provisions are there for the benefit of someone wanting to address damage to their own property by their own tree. Arguably they are there only for that situation and not for the nuisance damage situation. And the compensation Regulation obliges the tree owner and claimant to have averted or mitigated loss. I'll even stick my neck out and say that on ones own land, "to avert the loss or damage or to mitigate its extent" (R.24(4)(c)) is directly analagous to "necessary for the prevention or abatement of a nuisance" (R.14(a)(ii)). As such, it's irrational to infer that they overlap or that one overrides the other. They anticipate and deal with different situations. I'd add that it is dangerous to assume that nuisance equals damage, or vice versa.* It's probably safe to stick to the line that the nuisance or imminent prospect of it has to be 'actionable', but that's not the question here. There are other forms of actionable nuisance than damage (see recent Network Rail case, which seems to question convincingly and usefully that dangerous assumption). There could be situations when failing to prevent a nuisance could be just as damning as failing to abate it. Sorry guys, but you appear to be arguing against the very plain wording of the legislation. Can anyone direct me to case law that clarifies that a tree owner has to apply for consent to do something that is specifically and clearly excepted in the Regulations? I accept that 'necessary' and 'nuisance' are not trivial hurdles to get over, but once over them there's no further obstacle to crossing the line i.e. abating the nuisance before getting sued. * e.g. branch encroachment preventing the parking of a car could be nuisance but not damage. A dangerous tree fallign on a neighbour's property could be damage but not nuisance.

But that's irrational. If a tree is causing nuisance, the neighbour who is being 'nuisanced' can self-abate under the exception. But the tree owner must be able to prevent or abate a nusiance, otherwise the statute would be preventing him doing what the common law obliges him to do. As such I believe the exception allows the owner more, not less, opportunity to carry out tree works to abate nuisnace, because the owner is better placed to anticipate, then prevent nuisance.

My guess would be Prunus padus.

That doesn't seem right Gary, it's a 2 stroke engine so the oil is in the fuel and reaches the piston rings on the very first stroke. A good trick I got fro a lawnmower manual was just before you hibernate your engine, remove spark plug, put in teaspoon of oil, replace plug. It smokes a bit when you start it in spring but you're more or less guaranteed good lubrication of the piston ring when the engine is bone dry.

s.41 is just the general duty to maintain the highway. s.130 is protection of public rights. As you say, ther eis no cost recovery mechanism, and those sections are not relevant to your situation. I'd be asking the Council to think again. They can't enforce a debt if they have no legal right to recover expense.

Cherry Laurel Prunus laurocerasus

Haud oan, I think I've found something. S150 of the Highways Act. (4)Where they are under a duty to remove an obstruction under subsection (1) above, a highway authority may— (a)take any reasonable steps (including the placing of lights, signs and fences on the highway) for warning users of the highway of the obstruction; (b)sell any thing removed in carrying out the duty, unless the thing is claimed by its owner before the expiration of 7 days from the date of its removal; (c)recover from the owner of the thing which caused or contributed to the obstruction, or where the thing has been sold under paragraph (b) above, from its previous owner, the expenses reasonably incurred as respects the obstruction in carrying out the duty and in exercising any powers conferred by this subsection, but so that no such expenses are recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction. There you go, if you as land owner had an inspection regime in place and could not have reasonably foreseen the branch failure, I think you could see off a claim for expenses. I would.

This is an interesting one. I can't see naything in the Highways Act that empowers Councils to recharge for removing fallen branches. Therea re powers to remove dangerous ones still attached to trees, but it is not unlawful to allow a branch to grow over the road. Indeed, it is often the case that the Council owns only the solum of the road and not the land underneath it. If you ignore for now that it's a highway, it is no different from any typical encroachment situation. Foreseeable harm would leave liability for negligence, but otherwise it's damnum fatale. But it's a highway. The Highways Act allows removal of things deposited on highways, structures built on highways and so forth, but I see nothing about things falling unforeseeably on a road. It's a difficult topic to know if summer branch drop is foreseeable, but if it's not then the Council has to have statutory powers to recover the expense of removing an accidental obstruction. I've never seen such authority. You really ought to ask the Council what powers it's using to require payment from you. Please do this and report back. I'm sure we'd all like to know the answer.

You've lost me there. Surly it's open to a tree owner to chop an encroaching root at the boundary so as to arrest or prevent the nuisance on adjacent land? It only becomes more complicated if there's a TPO and the abatement has to be justified as 'necessary' so as to take advantage of the 'nuisance' exclusion, and thus there is an obligation to consider alternative solutions.

Ahh, I meant to add, this should become the go-to case for decisions about whether the 'nuisance' exemption for TPO or CA trees is being exercised correctly.

O what the heck, here's the whole relevant section form the Network Rail case. I would summarise as follows the present principles of the cause of action of nuisance. 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). 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. 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. 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. To paraphrase Lord Lloyd’s observations in Hunter at 696C, in relation to his third category, loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, such as may directly follow from, and reflect, loss caused by tangible physical damage to the land, but damages may nevertheless be awarded for loss of the land’s intangible amenity value. Reflecting the fact that the cause of action is one for interference with property rights, loss of amenity value and the right to claim damages for it does not turn on any exceptional sensitivity or insensitivity of the person entitled to exclusive possession: Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455 at [36]. What is relevant is the objective effect on the amenity value of the land itself, and it is that effect which satisfies any requirement there may be to show damage. 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. Fourthly, nuisance may be caused by inaction or omission as well as by some positive activity. An occupier will be liable for continuing a nuisance created by another person if, with knowledge or presumed knowledge of its existence, he or she fails to take reasonable means to bring it to an end when they had ample time to do so: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 894. An occupier will also be liable if he or she fails to act with reasonable prudence to remove a hazard, whether natural or man-made, on their land of which he or she was aware and where it was foreseeable that it would risk damaging their neighbour’s land and goes on to do so: Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust For Places of Historic Interest or Natural Beauty [1980] QB 485. [JM this last sentence appears to me to be liability in negligence rather than nuisance] Finally, the broad unifying principle in this area of the law is reasonableness between neighbours (real or figurative): Delaware Mansions at [29] and [34]. You'd need to read the whole thing to see how it pans out in practice. It's a Japanese Knotweed case, but the court seems to have gone out of its way to state the generalities of the law too, and much of this relates to trees.

Paul, I think that's oversimplistic. The law recognises the dilemma that if tree owners were responsible for the encroachment and minor difficulties caused by tree roots and branches we would live in a treeless world. The courts have been reasonably consistent over the last century in setting a threshold below which damage and encroachment is not 'actionable' i.e. self-abatement is a remedy to the affected landowner but the courts would only order payment of damages and/or abatement if the encroachment constitutes a legal nuisance and is sufficiently serious. The modern take on the law is set out in Network Rail v Williams and Waistell. Worth a look for many reasons but it includes a suggestion by the Master of the Rolls that the requirement for damage in an action as stated in Lemmon v Webb over 100 years ago is 'obiter', which in this situation means 'wrong'. arbgirl92, I'm not a TO.

If LA's want to build up a beer interpretation of what's going on, they just need to ask Arbtalk any day after 5pm. ?

First one looks like Phaeolus schweinitzii to me. Second looks like a couple of intergrown Boletes. Are they really on the Beech or on top of it? Third one could be Amanita rubescens, maybe too early to tell apart from A. Pantherina?

It's not a Spruce, that's for sure. It's not even family Pinaceae, I'd say it's Cupressaceae. Might even be a Wellingtonia Sequiadendron giganteum. Have a closer look.

I have my doubts about Combretum. Its fruit is 4 sided, the distinctive feature of all the Order Myrtales. The picture is 5 sided. Plus the leaves are wrong for Combretum.

No I don't know without seeing it in context. But it looks big and leaning toward the house and the loss of stringth in buttress roots is on the house side. And Meripilus doesn't take prisoners. So what I mean is I wouldn't waste time checking if the Council is known to be slow to verify TPOs. And then 2 months for a TPO decision if the was one. They'd be out of their minds to refuse, even if there was a TPO. So to rephrase what I said, I'd assess the risk and if it was immediate and there was a risk of serious harm and the only way to remove it was to remove the tree, I wouldn't bother checking with the LA.

I wouldn't unless a quick reply was certain, I'd take it down under the "urgently necessary to remove an immediate risk of serious harm" exception and notify them just in case it is TPO'd.

I agree about the needs of the planet, humans are just deluding and humouring themselves until it is too late. The point is though that Cuncil can only do what they are a loowed to do or have to do under legislation. They don't have to make morality decisions about trees. It's not about overriding need for development and it's not about saving as many as humanly possible. It's about presumption in favour of development against public amenity needs. It's a poor system, but tit's the one we have. The deluding and humouring humans that need ot be persuaded are politicians. Quite!