UKTC Archive

Re: Abatement and common law

Subject: Re: Abatement and common law
From: Bill Anderson
Date: Aug 11 2017 12:51:02
I suspect any attempts to make it any different would result in a mess like
the High Hedges regs. Personally having considered the matter at some
length I don't see how it can ever be any other way than how we find it
now. Sometimes the vagueness presents an opportunity to tell a disputatious
client to wind his neck in and find something else to get annoyed about,
sometimes it presents an opportunity to simply ignore an obstreperous LPA.

On 11 August 2017 at 13:06, Alastair Durkin <ADurkin@xxxxxxxxxx.gov.uk>
wrote:

In all fairness Alan the Government has made it abundantly clear within
the PPG what they consider to be covered by the exception- simply
encroaching -  no, causing damage or foreseeably about to do so - yes.
However, unfortunately they haven't gone so far as to make it clearer in
the primary legislation. TCPA 2018 anyone?

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Alan Wallbank
Sent: 11 August 2017 11:54
To: UK Tree Care
Subject: RE: Abatement and common law

I find it massively annoying that it isn't clear! Moreover, that the TCPA
was renewed in 1967, 1971 and 1990, plus the other revisions to the TPO
regs right up to 2012, and the provision has been left in.  I ask for
applications and use it as an opportunity to influence for good, but it'd
be great to know exactly where we stand. If government were minded to limit
it to actionable nuisance or whatever they've had ample opportunity to say
so.
Neighbour's being able to cut others' trees back to the boundary is
actually the current position. Maybe it's the right one: if your neighbour
wants a tree but won't place it centrally in his  garden because it'll take
up prime space and so shoves it to the boundary where it grows over your
garden, why should you suffer the consequences? He gets his garden, and
gets his tree, and you get his nuisance .
That's just objective. My tree hugging head is off.


Alan Wallbank
Tree and Landscape Officer
Fylde Borough Council

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-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Mark
Sent: 11 August 2017 10:47
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Abatement and common law

I think the main point here is that it is not clear and nobody in their
right mind wants to be a test case! We put in a 5 day notice if actual
damage is occurring and a TPO app if it is not. I must say that the thought
of everybody having the right to cut anybody else's tree back to the
boundary regardless is a bit scary, our suburban areas would very quickly
become a horrible mess!

Mark

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Alan Wallbank
Sent: 11 August 2017 10:26
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Abatement and common law

Now, it was my impression that what Mr Mynors concluded was that there
wasn't sufficient grounds to interpret that nuisance means anything other
than ordinary nuisance. Notifying the LPA might be one thing, and is
sensible for other reasons, but whether the LPA can act to prevent someone
exercising his/her common-law rights is not at all clear. Or, if it is
clear, it's a clarity we'd rather not observe.
It's a while since I read it, but I seem to recall that Charles was lucid
enough about Sun Timber and its being a decision of a lower court and not
precedent-setting.


Alan Wallbank
Tree and Landscape Officer
Fylde Borough Council

DDI:    01253 XXXXXX
Main:   01253 XXXXXX

How are we doing? Have your say and fill in the residents survey here:
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-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Howe, Ron
Sent: 11 August 2017 10:20
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Abatement and common law

Charles Mynors always said that he wished the nuisance clause could be
removed from the regulations as it caused confusion and was too open to
interpretation. I'm with Alastair on this one. To answer the question, the
TPO does override the nuisance clause because the regulations require that
the LPA be notified whatever the circumstances regarding exempt works or
otherwise. Technically the nuisance must be an actionable legal nuisance in
that damage is actually occurring and there is evidence in the balance of
probability the parts of the tree are the cause. So for example if a branch
is blowing about on a roof and knocking tiles off. However, what we have in
my view, is a very useful situation where an LPA can approve works without
an application being needed. I did so recently to allow insurers to remove
a 10m tall Ash where there was subsidence damage on one side of a house in
favour of retaining a 20m Pine. It is a discretionary tool for TOs.

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


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Alastair Durkin
Sent: 10 August 2017 17:14
To: UK Tree Care
Subject: RE: Abatement and common law

Hi Charlie

The Planning Practice Guidance advises thus:

'What is the exception for work to prevent or abate a nuisance?

The authority’s consent is not required for carrying out the minimum of
work on a tree protected by an Order that is necessary to prevent or abate
a nuisance. Here ‘nuisance’ is used in its legal sense, not its general
sense. The courts have held that this means the nuisance must be actionable
in law – where it is causing, or there is an immediate risk of it causing,
actual damage.

When deciding what is necessary to prevent or abate a nuisance, tree
owners and, where applicable, their neighbours and local authorities,
should consider whether steps other than tree work might be taken. For
example, there may be engineering solutions for structural damage to
buildings.'

So yes, you do need to apply.

Hope this helps


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:uktc-request@lists.
tree-care.info] On Behalf Of Charlie Ashworth
Sent: 10 August 2017 16:37
To: UK Tree Care
Subject: Abatement and common law

Does a tree preservation order override the common law right to abatement?

A college lecturer once said it didn't as it was a legal loop hole.  but I
haven't had a definitive answer since. I'm not a tree officer, never have
been. So don't shoot me down for not knowing.

Thanks
Charlie






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To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy
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To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy
http://www.boskytrees.co.uk/