UKTC Archive

RE: No, not worthy for TPO? (The paradox of unabatable nuisance)

Subject: RE: No, not worthy for TPO? (The paradox of unabatable nuisance)
From: Alastair Durkin
Date: Aug 06 2014 15:40:16
Ron, much as I hate to admit it, if you read the entire discussion on 
prevention and abatement of nuisance and how this relates to TPOs in Mynor's 
latest edition (all of 23.6) then you may come to the conclusion that the 
nuisance does not have to be 'actionable' for the exception to apply.

It seems to me from my reading of Mynors that this specific issue (i.e 
whether the nuisance must be actionable for the exception to apply) does not 
seem to have been specifically covered in case law, other than obiter 
comments, which are therefore not considered precedent (I think.....). Mynors 
makes the point that if everyone exercised their right to abatement under 
common law, then all the garden trees on boundaries would be obliterated, but 
this is not the case in reality, so is the TPO issue really a major issue at 
all? He also makes the point that the 1947 Act surely did not mean to 
override the common law rights of the public, and therefore provided for the 
exception that is now at 14 (1) (a) (ii) of the 2012 Regs. Similarly the 1947 
Act was not designed to override the right of the Highway Authority to keep 
the highways clear, regardless of the effect on the amenity provided by the 
tree - which is why that exception also exists.

In reality, most people will make an application to be on the safe side - and 
why not if the issue has not been comprehensively dealt with? That is what I 
tell people anyway.

Alastair Durkin
Senior Tree Officer
Planning Policy & Trees

Tandridge District Council
The Council Offices
Station Road East
Oxted, Surrey
RH8 0BT

Tel: 01883 XXXXXX
Fax: 01883 XXXXXX

adurkin@xxxxxxxxxx.gov.uk
www.tandridge.gov.uk
-----Original Message-----
From: Howe, Ron [mailto:Ron.Howe@xxxxxxxxxxx.gov.uk]
Sent: 06 August 2014 15:30
To: UK Tree Care
Subject: RE: No, not worthy for TPO? (The paradox of unabatable nuisance)

The term should be either "does not meet the criteria for protection" or, "is 
not of sufficient quality" or, "too numerous to be categorised in a higher 
class/downgraded due to numbers". ...

Ron Howe
Principal Tree Officer (Planning)
Mole Valley District Council
Tel. 01306 XXX XXX

-----Original Message-----
From: andersonarb@xxxx.com [mailto:andersonarb@xxxx.com]
Sent: 05 August 2014 09:03
To: UK Tree Care
Subject: Re: No, not worthy for TPO? (The paradox of unabatable nuisance)




Interesting phrase, that, "unworthy of protection". I have seen it a few 
times in development site reports, and it is a staple for one local 
consultant/contractor. I wonder if it has currency outside the small world of 
arboriculture? I'm not at all sure I like it though.





-----Original Message-----
From: Edmund Hopkins <Edmund.Hopkins@xxxxxxxxxxxxxxx.gov.uk>
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Sent: Tue, 5 Aug 2014 8:33
Subject: RE: No, not worthy for TPO? (The paradox of unabatable nuisance)


I don't like it either, Blue Book's "expediency" is more fitting and gives 
the impression that the lexicon has been well-explored before it was used. As 
I've pointed out before, the Blue Book deserves more respect than it has been 
shown. I shan't be dumping my copy anytime soon.


Bill.





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