Bill
The builder then goes to the tree owner and says "your tree is
devaluing my site therefore you owe me £Xk to compensate me for my
financial loss"
The builder has a remedy in law, which is to remove the overhang. He did
not have a right in law to remove branches beyond his land or to take
possession of the cut branches.
The tree owners then go to the LA and say "your TPO has just cost
us £Xk, therefore we expect compensation!"
This is a planning matter, an applicant has a right of appeal to the
SOS.
Now I don't like the above one little bit, but if what I think
Charles Mynors said a couple of years ago is correct; that is "a
neighbour has an absolute right to abate nuisance whether or not a
TPO is in force" then I don't think that anyone is going to achieve
anything.
There were a lot of dropped jaws when Charles announced that one
but I'm sure thats what he said. Anybody else there (Midlands
Branch AA meeting) to testify?
Of course if you only have a right to 'abate nuisance' then perhaps
there's an argument to be had but my understanding is that if the
above is true, then if the famous Leeds City Council v Sun Timber
Company had gone to appeal then the Noble wigs would have let em
off! (sorry "orf")
Charles Mynors usually qualifies this by saying that he would like to
test it in court. You make a valid point in respect of Ayres and Sun
Timber Company v Leeds City Council. This case relied upon the judgement
of Lord Parker in Edgeborough Building Co. v Woking Urban District
Council, and if Mynors is correct, the Recorder in the former case
misinterpreted the judgement in the latter case. The former case being
relied upon by LPA's who quote "actionable nuisance" in respect of
S198(6)(a) exemptions.
Maybe the Town Planners have got an unwritten agreement that they
always refuse permission on other grounds.
S197 of T&CPA places a duty on the Authority to protect trees.
And remember that by definition "you cannot be a nuisance to
yourself." Therefore the Planners can refuse permission because of
trees on the plot but not because of trees off the plot.
Mike
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