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Re: Offensive behaviour

Subject: Re: Offensive behaviour
From: TREECISION (Julian Forbes)
Date: Dec 20 2001 18:01:25
Bill -
 
Yes the problem of nearby off-site trees being affected by/blocking development is a tricky one. I was at the same Midlands Branch seminar and agree with your recollection of Charles' view.
 
In addition to the knotty problems you raise, consider this:
 
Tree owned by A stands just within boundary of land owned by B
B develops his land, severing the tree's roots in doing so
New house bought by C
At some time later, tree topples onto new dwelling, squashing C
A would, prima facie, be liable as the owner of the tree!
 
In my view, if the LPA had established SPG in relation to trees, they could have compelled the development a little further away from the tree, though I doubt whether they could have made a convincing case for outright refusal. They could also have made the tree the subject of a TPO. But as Charles would say, this may not have prevented the 'siding' of the beech. Even the Blue Book makes clear that common law and TPO law appear in conflict over this issue and that it has yet to be tested in court. I agree with Charles that one cannot be prosecuted for enacting a common law right, so abating a nusiance wins over the TPO.
 
However, in this case, the main issue is whether the developer has broken any law by cutting back well beyond the boundary and in my view he has. Furthermore, it will be my testimony that, if the developer had stuck to the boundary line, there would have been viable growth points to which to cut back and thus a significantly greater opportunity for retaining the tree.
 
As it is, the remaining leaders will have to be reduced hard to prevent storm damage and I just don't see the tree appreciating this much. If my clients do not effectively top this tree, and large members blow out onto the dwelling, then the situation is analagous to the ABC scenario set out above.
 
What a mess. Anyway, since starting this thread, I got angry with the LPA about the lack of a suitable SPG: they have asked me if I would be prepared to write one for them, so maybe there's a chance to make a difference in future.
 
Anthony -
 
Yes, criminal damage would be my starting point too. Any other ideas anyone? What about Trespass to Goods?
 
Thanks both of you for your views.
 
Julian.

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