This is a good question.
The paradox between 5837 and many LPA's policies in terms of neighbouring
trees being a material consideration, and Lemmon v Webb has not been
resolved.
If as a result of exercising L v W a neighbouring tree is lost or seriously
compromised, who has the responsibility? Over the years I have posed this
dilemma to counsels foolish enough to linger over a cup of coffee with me,
and surprisingly the answers have been consistent. They have all said that
they believe that a court would apply a test of reasonableness. This means
that if in exercising L v W you acted unreasonably and did not exercise your
duty of care to the point that your action might be considered reckless,
that consideration may be regarded as superseding L v W.
So, what of planning (or more precisely development control)? Why should
your neighbour's tree compromise what you want to do on your land? Why
should you have to spend £XK on complicated foundations when your
neighbour's tree roots and/or crown encroaches into your land? There may
be an argument if the tree is protected, but what if it isn't?
A planning consent cannot (should not!) impinge upon other laws. A consent
might "outrank" a TPO if that TPO was not properly considered in the
application process, but then they are both within the TCPA.
LPAs generally believe that the planning process sweeps all before it.
There is no answer to your question so far, only people's opinions. We are
all waiting for the first test case - volunteers please form an orderly
queue!
Jim
-----Original Message-----
From: Ben Rose [mailto:benrosebristol@xxxxxxxx.co.uk]
Sent: 30 April 2007 13:45
To: UK Tree Care
Subject: Causing neighbours trees to become unstable
Dear All,
I am dealing with a case where a planning application for a site has been
granted. The issue is that it is close to a tree on neighbouring land. Roots
may well be severed but at this stage it is impossible to determine how
unstable this tree may become.
Under the potential future scenario that the developer has severed the roots
of a tree on an adjacent property, and the tree fails causing damage, who
would be liable in the event of failure?
Does anyone have experience with similar situations?
Ben Rose
Arboricultural Officer (Planning)
Bristol City Council
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