UKTC Archive

Re: RE: RE: Civil cases for nuisance or damage to property

Subject: Re: RE: RE: Civil cases for nuisance or damage to property
From: Julian Morris
Date: Jan 13 2020 11:49:59
[Text converted from HTML]
Alastair I'm not sure we do disagree, or at least not completely. It's an
important and not uncommon situation, worth getting to the bottom of. The
situation about onsite trees is clear, I'm not debating that. And it only
applies to protection during construction. If a tree is outwith a
planning application boundary and is not already TPO'd then conditions
could be used to protect the roots and crown insofar as they are within
the site, but that would conflict with the common law right of abatement.
To the extent that the tree roots are not onsite, and if the tree is not
TPOd as a result of the application, then that's fine, the Council hasn't
used conditions to impose obligations on the applicant that affect land
not within the application area. But the common law encroachment can
still be abated under exception.

The issue is a fundamental legal one. Imposing a condition (and it would
have to be a Grampian-styled condition) that protect a tree (the parts of
it that are) offsite means that the consent cannot be implemented unless
the applicant can secure a legally binding agreement (after the event)
with the tree's owner, or else the tree owner might subsequently chop it
down and render the planning permission unimplementable. That is an
unacceptable use of conditions as the law stands, because the only
relevant circumstances where offiste conditions are allowed is when they
are enforeceable and reasonable and for the purposes of or connected with
the development. And what if the condition is breached, who does the
Council take enforcement action against?

I think there could be circumstances where a LPA could refuse consent
because of unacceptable effects on an offsite tree, but all the case law
indicates that it can't grant consent subject to conditions for the
tree's protection that can only be implemented by the owner of land
outwith the application boundary. Its a big and important distinction.

As for the scenario where the LPA seeks to protect an offsite tree by
TPOing it, the roots or stems encroaching can be removed under exception,
the Regulations (an let's assume it's in England) are clear that
abatement can take place but also prevention of nuisance allows removal.
I just checked the dictionary. Prevention means to keep from happening.
In other words, there doesn't even need to be nuisance yet. And of course
there is also the exception for tree works necessary to implement a
consent.

It all points to this. Where A LPA sees the ongoing vitality of a tree
that is important for the amenity of an area will be compromised by
development on adjacent land, the least unlawful way to protect it is to
refuse consent.

And in this particular game of chess, the development land owner can thus
demonstrate that the tree constitutes a common law nuisance preventing
reasonable use of the land, since the only thing preventing its use for
development is an encroaching tree. It's a Catch 22. If the tree would
only be a nuisance because of a development, does that mean it's a
nuisance because it's preventing consent?

Nuisance by encroachment is the prevention of reasonable use of the land.
Law of tort and delict 101. The TPO exceptions prevent statute from
changing that. Mynors even says that this is their purpose. I beleve that
that's what the courts would say when push comes to shove. Otherwise the
concept of land ownership and natural rights therein would cease to exist
as we know them. It's that fundamental. LPAs do not have the right to
create de facto easements or servitudes on behalf of adjacent landowners.

Julian A. Morris - Professional Tree Services
jamtrees.co.uk and highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Monday, January 13, 2020 at 8:46 AM
From: "Alastair Durkin" <ADurkin@xxxxxxxxxx.gov.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: Civil cases for nuisance or damage to property

I disagree Julian

No reason as far as I can see why you cannot protect encroaching TPO'd
(or any other) roots from construction activity with a condition. Of
course, as you say, there is an argument if the roots are actually
preventing a dwelling being built (and it is an argument - I'm not
convinced it's been settled), but if we are talking about protecting the
RPA from construction activity associated with an approved application
then it’s a perfectly reasonable use of a condition.

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Julian Morris
Sent: 12 January 2020 10:37
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: Civil cases for nuisance or damage to property

I had this situation in spades last week. LPAs cannot lawfully impose
conditions to protect a tree on land that's not within the application
boundary. Even if they TPO'd it the encroachment can be removed under
exception if it's a nuisance i.e. preventing some reasonable use of the
land.

Julian A. Morris - Professional Tree Services jamtrees.co.uk and
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Sunday, January 12, 2020 at 10:24 AM
From: "Jerry Ross" <trees@xxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Civil cases for nuisance or damage to property

Clearly it should have been; not sure if it was considered. I'm only
peripherally involved; just posing the question...


From my mobile

On 12 January 2020 10:19:48 Jim Quaife <jq@xxxxxxxxxxxxxxxxx.co.uk>
wrote:

If the tree was on the boundary was it material to the planning
application?
(Happy New Year everyone!)
Jim

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jerry Ross
Sent: 12 January 2020 08:17
To: UK Tree Care
Subject: Re: Civil cases for nuisance or damage to property

Here's another instance: a tree on a boundary leans strongly out
over adjoining land and there is some evidence of instability (it's
a 3 stemmed False Acacia and the basal fork looks a somewhat iffy)
However the land in question is a field and is essentially
unoccupied, so risk of harm is negligible.
But consent has been granted for a dwelling 8m away, directly
opposite the tree.
The risk level is thereby raised, probably to an unacceptable
level,
solely as a result of the introduction of a permanent 'target'.
Where does liability lie?

(The tree owner wishes to keep the tree. However, if forced to
remove it, the costs would be significantly greater as a result of
the new development next door)


From my mobile

On 11 January 2020 18:56:41 AV Arboriculture <mike@xxxxxxx.co.uk>
wrote:

Has anyone ever heard of a civil case involving a tree causing
nuisance or damage to property actually going to court? And if so,
what was the outcome?

I have a client who is being threatened with civil action because
her tree is causing damage to her fence and slabs. The tree has
been there longer than the landscaped garden. In my mind, the
neighbour should be able to predict that any hard landscaping in
that area is at risk of being damaged, so it it her
responsibility?

I would be really surprised if such spurious cases got any court
time, especially as the courts are severely stretched like every
other public service.

Mike Charkow



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