UKTC Archive

RE: Abatement and common law

Subject: RE: Abatement and common law
From: Phillip Ellis
Date: Aug 11 2017 14:31:40
Hopefully an inspector is capable of using common sense as well!


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jim Quaife
Sent: Friday, August 11, 2017 3:25 PM
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Abatement and common law

The inspector would have been mindful of any guidance, but the decision would 
have been made on the basis of the specific site circumstances. If guidance 
were always to be followed, why the need for an inspector?  Guidance is just 
that.
Jim

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Alastair Durkin
Sent: 11 August 2017 14:00
To: UK Tree Care
Subject: RE: Abatement and common law

Same place we were before Mark. The Inspector is going along with Government 
guidance, which seems sensible. 

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Mark
Sent: 11 August 2017 13:52
To: UK Tree Care
Subject: RE: Abatement and common law

Pruning of overhanging branches from neighbouring properties has been turned 
down at appeal.................so where does that leave us?

Mark

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Alastair Durkin
Sent: 11 August 2017 13:07
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Abatement and common law

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@xxxxxx.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@xxxxxx.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@xxxxxx.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:
http://www.fylde.gov.uk/council/performance/residentssurvey/

Want to be kept up to date with news from your council?  Sign up here - 
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-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.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@xxxxxx.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@xxxxxx.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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