Planning permission granted, Tree at immediate border

Planning permission granted, Tree at immediate border

Postby Mike. T » Wed Aug 01, 2012 10:28 pm

Hi.

I applied for planning permission for a 2 storey extension to the side of my house recently. It was Granted this week.
A neighbours garden adjoins end on up to the very edge of my land where I want to put up the extension, his tree is immediatley behind this border.

The growth of his tree sees a third of it substantially overhanging over/into my property line. the other 2 thirds hangs out the opposite way and isn't vertical.
He objected to the planning permission for a whole plethora of reasons, all of which were considered by the LA and dismissed.

The proximity of my extension will be within inches of the border/fence, consequently, I will have to cut through 50% of the whole established tree roots up to the fenceline due to the footprint of the extension.

The tree doesn't have a TPO, it is (I think) a Silver Birch, I estimate its size to be circa 45 feet so it's rather big.
Based on his considerable efforts to halt the planning permission, and documented protests that no access will be allowed to his land to facillitate the extension build, I am certain that if I ask my neighbour to take it down he will blindly refuse.

I have no choice than to get a tree surgeon in to cut the very sizeable third down which overhangs the fenceline into my property, and the builder has already made it clear he will be removing EVERYTHING my side of the fenceline and potentially treating the root stubs to prevent further growth as he will need to so he can lay foundations.

If you can imagine a centreline which is the fenceline, that runs to the left of the Tree trunk, the third of the upper tree, also lies across that (to my land) line by a third. With the top third (counterbalance) gone, and the roots (50% of the tree total roots to the left also gone, I am no tree expert, but I can't see how it won't fall over to the subsequently over balanced right hand side, immediatley into his garden, particularly given its size and weight?

How do I prepare him to accept the responsibility that the extension is going ahead, and these are the likely consequences.
I don't want to cause trouble but also would like to make sure that I'm not liable for any consequences of doing what I want and am fully entitled to do and have full LA approval to do?

Mike.

.
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Re: Planning permission granted, Tree at immediate border

Postby despair » Wed Aug 01, 2012 10:43 pm

I am not so sure you can escape responsibility for this because Silver Birch do not take kindly to pruning of any sort and tend to rot out so even if it survives the cutting back without falling it will likely die

My purely personal view is its totally wrong to even contemplate building that close to any boundary since maintenance issues are bound to follow so in many ways i can sympathise with your neighbour although whoever planted a tree that close to a boundary is also wrong and ill informed

You would be best advised to negotiate with him and offer to remove the tree and buy a suitable replacement tree thats more suited to the situation
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Re: Planning permission granted, Tree at immediate border

Postby Mike. T » Wed Aug 01, 2012 11:14 pm

Thanks, and I sincerely do not want to seem heartless, but I feel NO "responsibility" to this tree whatsoever, hence I also feel there is no responsibility to need escape from.

My concern lies with my legal responsibility and the neighbours responsibility to see the light that the right thing to do would be to remove this tree, given that my intentions are clear and it affects (unfortunately) his tree.
If he wants to plant a replacement where it won't interfere or cause a problem to areas which ARE my responsibility, then I don't mind.


Mike.
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Re: Planning permission granted, Tree at immediate border

Postby kipper » Thu Aug 02, 2012 12:51 am

Mike. T wrote:I don't want to cause trouble but also would like to make sure that I'm not liable for any consequences of doing what I want and am fully entitled to do and have full LA approval to do?.

Sorry, but you will be liable if can be proved that any of the work you propose on the tree subsequently causes it to die or fall.
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Re: Planning permission granted, Tree at immediate border

Postby Treeman » Thu Aug 02, 2012 7:41 am

kipper wrote:
Mike. T wrote:I don't want to cause trouble but also would like to make sure that I'm not liable for any consequences of doing what I want and am fully entitled to do and have full LA approval to do?.

Sorry, but you will be liable if can be proved that any of the work you propose on the tree subsequently causes it to die or fall.



How so?

If the tree can't survive without the ongoing trespass?

The common law right to self abate still stands.

If the excavation works are likely to cause stability problems than this is one of the rare occasions where putting the other party on notice will be of use. Once informed of the proposed works and the potential repercussions for the tree they should act to maintain it in a safe condition. Since detailed planning over rules TPO's there is no danger of statutory protection preventing you from implementing your planning consent. (provided it isn't already subject to protection)

IMO this is yet another example of the planning system dropping the ball, the tree is a material consideration, if you (or your agents) did not make that clear to planning you should have, the presence of the tree should also have been picked up at any site visit.
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Re: Planning permission granted, Tree at immediate border

Postby Mike. T » Thu Aug 02, 2012 11:16 am

The tree was indicated on the planning application and was seen by the LA planner who visited to inspect.
I assume that in granting the planning consent, they are working on the fact that if it's in my space or intruding on my land, that the owner needs to consider that and remove it.
They have pointed out the dismissed objections to the planning permission as being unfounded and their suggested denial of access protests as a civil matter, not impacting or relevant to their decision.

I will be making asking him to cut back the upper part of the tree over my fence line and expecting him to do that.
I will be advising him that the roots will be cleared by my builder for the foundations to be laid and that I have concerns about the overall stability of the tree as a result of the actions I am entirely entitled to , and will be doing.

My understanding is that if he refuses to cut back the overspill into my land, that I am entitled to do it, as long as I leave the cut off parts on his land?
In that what I am doing is within my rights and legal, I feel the likely demise/loss of the tree is not "damage", but unfortunate circumstances dictated by the inappropriate placement of the tree in the first place, none of which are my responsibility.


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Re: Planning permission granted, Tree at immediate border

Postby hzatph » Thu Aug 02, 2012 12:50 pm

Mike, although neighbourly relations have deteriorated this is not a constructive approach and not conducive to a good quality building. I do not know the legal answer to the stability issue but if you want the branches to be removed on your side then you should remove them, offer them to your neighbour and dispose of them yourself if they decline. Do not dump them.

I do hope that your structure is not oversailing their land and that you will not need any access on their side for the construction. I also hope that your foundations are suitably designed for a tree in close proximity and that their excavation will not disturb next door's land.

Your neighbour is perfectly entitled to object to your planning application. The granting of planning permission does not impact in any way upon any disagreements that you or your neighbour may have about the tree or access for construction and you have no right in law to require access to their side of the boundary for construction. The Party Wall Act does contain some provisions and it is important that you comply with it and serve notice and appoint the surveyor(s) as required.
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Re: Planning permission granted, Tree at immediate border

Postby oorya » Wed Aug 15, 2012 2:39 pm

Mike. T wrote:The tree was indicated on the planning application and was seen by the LA planner who visited to inspect.
I assume that in granting the planning consent, they are working on the fact that if it's in my space or intruding on my land, that the owner needs to consider that and remove it.
They have pointed out the dismissed objections to the planning permission as being unfounded and their suggested denial of access protests as a civil matter, not impacting or relevant to their decision.

I will be making asking him to cut back the upper part of the tree over my fence line and expecting him to do that.
I will be advising him that the roots will be cleared by my builder for the foundations to be laid and that I have concerns about the overall stability of the tree as a result of the actions I am entirely entitled to , and will be doing.

My understanding is that if he refuses to cut back the overspill into my land, that I am entitled to do it, as long as I leave the cut off parts on his land?
In that what I am doing is within my rights and legal, I feel the likely demise/loss of the tree is not "damage", but unfortunate circumstances dictated by the inappropriate placement of the tree in the first place, none of which are my responsibility.


Mike.


I am no expert but as this is a new build then I would expect that you have no right of access to your neighbours land in the building of the extension.
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Re: Planning permission granted, Tree at immediate border

Postby Mike. T » Wed Aug 15, 2012 2:53 pm

OK, lets re-cap.
I'm not suggesting I have any rights on somebody else's land, just the right to do what "I" want to do on my own land, including completely removing any encroachment onto my land at whatever level, above ground or below.

Also, my extension can easily be built without disturbing too much, but its at the end of the guy with the tree's garden, (about 15M - 20M away).
He is the one who is going to have to look at the windowless 2 storey brick wall, with pitched tile roof above; His early vociferous protests at not allowing access will only mean that the physical appearance of that end wall facing him will be particularly untidy, as the builders won't be able to apply anywhere near the level of attention (if any at all) to detail by leaning over each course of bricks to point then up tidily.

Indeed, I'd go so far to say that I will never look at the wall from that angle so I suspect given the access restriction suggested, that it won't get pointed up at all?
That won't affect me, or my property, only his view of the wall and maybe his house saleability because of that (unsightly) view in the future?

Just seems a very "cut your nose off to spite your face" kind of thing to me?


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Re: Planning permission granted, Tree at immediate border

Postby despair » Wed Aug 15, 2012 3:11 pm

Have you explained that to the neighbour and offered to remove his silver birch and replace it with something more suitable in return for access to do a neat job with the obvious caveat of ensuring the builders do not make one ounce of mess etc

It might be worth one last ditch attaempt to avoid what will become war

he might decide to plane Leylandi instead dont forget
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Re: Planning permission granted, Tree at immediate border

Postby Mike. T » Wed Aug 15, 2012 4:08 pm

despair wrote:Have you explained that to the neighbour and offered to remove his silver birch and replace it with something more suitable in return for access to do a neat job with the obvious caveat of ensuring the builders do not make one ounce of mess etc

It might be worth one last ditch attaempt to avoid what will become war

he might decide to plane Leylandi instead dont forget


I've not spoken to the neighbour about it at all, the first response from them was a long string of complaints trying to stop the whole extension, not in keeping with the area, an interference with the street scene, affecting their trees/land unsightly view from their land Etc. Not once did they approach me and actually ask me about it. I hadn't spoken to them as it's stuff going on with my property and until I'd got planning permission I didn't even know if it would get the green light from the LA or not.

There won't be a war, as there's nothing really for me to need to be warring about particularly. He can plant whatever he likes on his side of his fence, I have no objections whatsoever. In exactly the same way that I've NOT complained about the continued overspill from both partners gardens into my land.
With both properties, their fence has been pushed out by plants & tree roots onto MY land. Both gardens have substantial ingress across the fenceline into my property, one with some sort of climbing plant/bush coming through by several feet and the other s tree touches my house when windy.
I would have no objection to them coming onto my land to tidy things up, but it seems they object to me trying to make their side of my building look tidy for themn. I just don't understand that mindset I suppose. It's counter productive and only affects them detrimentally?

If the neighbour wants to plant Leylandi, as long as they're not intruding across the fenceline and they can keep control of them to their side of the fence, I don't really care.
I will of course speak to him at some point about it, and the very last thing I want is to leave ANYTHING looking a mess at all, the overriding feeling from all the objections was that he wants to stop my extension at any cost, regardless of the fact that his tree is the obstacle encroaching on my land to such a great extent.

I don't really accept that I need to make a concession to replace his tree, it's not my fault where his tree is, or that it encroaches so heavily onto my land and has done without being tended and without consideration by him for years.
My concerns in here were on the legal side of what I was allowed to do with planning consent granted and an intrusion/trespass by his tree.

We seem to have got sidelined into a what I should be responsible for which was never the point of the original question really.
I'm a reasonable person and would like his side of my wall to look good too. His immediate protestations and apparent carte blanche warning of no access whatever (as per his objections to the planning consent) only prevent me from making his side of the extension look presentable. If he wishes to be that short sighted and obstinate, only he will suffer?

I was merely commenting that I do not understand that standpoint?


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Re: Planning permission granted, Tree at immediate border

Postby COGGY » Wed Aug 15, 2012 4:56 pm

Hi Mike

We have ongoing problems with a neighbour, caused by our building an extension. We did discuss it with the neighbours first and showed them plans. They are now making our lives very difficult. I would not wish to be in this position and would advise strongly that you try to take the neighbours along with you. Also in your shoes I would be worried about tree roots, both of the tree in question and any trees planted in future. We had a silver birch in our garden, here when we came. It has damaged our patio area and path and has now been removed. Think carefully before building where a tree in the neighbours garden can do damage if you are not on good terms with them.

We are extremely glad to have some distance between our building and the neighbours. They are built up to the boundary and lean over and do damage to our plants and anything else within reach. If you cannot access part of your building you will have no way of knowing what may be happening. The stress does not help for a peaceful life.

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Re: Planning permission granted, Tree at immediate border

Postby Mike. T » Thu Aug 16, 2012 11:27 am

COGGY wrote:Hi Mike

We have ongoing problems with a neighbour, caused by our building an extension. We did discuss it with the neighbours first and showed them plans. They are now making our lives very difficult. I would not wish to be in this position and would advise strongly that you try to take the neighbours along with you. Also in your shoes I would be worried about tree roots, both of the tree in question and any trees planted in future. We had a silver birch in our garden, here when we came. It has damaged our patio area and path and has now been removed. Think carefully before building where a tree in the neighbours garden can do damage if you are not on good terms with them.

We are extremely glad to have some distance between our building and the neighbours. They are built up to the boundary and lean over and do damage to our plants and anything else within reach. If you cannot access part of your building you will have no way of knowing what may be happening. The stress does not help for a peaceful life.

COGGY


Yes, I agree.

I have inherited a problem though. Clearly to object on the grounds that the neighbours have; they must feel that their intrusion onto my land is justified..... an "everything was alright until you came along" kind of argument?
I've already spoken to one neighbour who is only partly affected by about 2 metres, by my extension and made it clear that I want to make things look better. By in the future pulling down his crumbling crabby 40+ year old wooden fence and replacing it with a brick wall which would perfectly match the new boundary walls already in place and my new extension wall).

I've also pointed out that he has "projected" onto my land with his climbing plants coming over the top of my fence and restricting access on my side of the fence for over 8 years, that and his "fence bulge" onto my side of the line. I think he's now re-thinking things, but that's post extension build stuff anyway, so he's got more than a year to think about it. :-)

I will be speaking to the other neighbour, but though it prudent to let the dust settle a little first so that I don't come across as confrontational.... maybe it'll turn out OK eventually anyway, fingers crossed. :-)


Mike.
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Re: Planning permission granted, Tree at immediate border

Postby pottypanda » Thu Aug 16, 2012 1:48 pm

A straight and sad answer to your original question is that ANY part or amount of the tree that is in your garden can be removed even if it kills the tree as long as it is not protected or in a conservation area there's nothing he can do about it, legally. If the planners didn't see it as an issue or give you any special instructions on how to deal with it then I would get a professional to do the work epecially if it is top heavy or lop sided, they are insured for the consequences.

Money goes a long way to keeping the peace so I'd write him a cheque! even though you don't see why you should you are as you say spoiling the enjoyment of his property and view for years to come no matter how tidy your pointing is. Regardless of who is to blame for what, a p****d off neighbour can ruin your life and you may be driven out if he's upset enough.

And whatever you do DON'T dump the tree branches in his garden for your own safety, I nearly ripped my neighbours head off for what she did. I won't go on about the ethics of your build, I'm just glad your not building near me.
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Re: Planning permission granted, Tree at immediate border

Postby FrTed » Thu Aug 16, 2012 2:10 pm

I really kind of Sympahise wih you here Mike.

We had an extension in 2007, single storey though. It nessesitated demolishing our half of a flat roofed back porch and us building a pitched roof on our side.
I took the plans to the neighbours, showed them the designs and sketches and measurements, ensured all work was done from our side (which meant building in a few inches). Even offered to replace the flat roof on their porch with an extension of our pitched one (which they declined). Ended up having to throw another £1800 at the foundations during the build stage due to the root ingress and proximity of their cherry tree (thanks Mr P***d off clearly had a bad day Building Inspector) :evil:

Hell! The agro we have had ever since if we want to get work done, or if we have work done. Really. I just dont understand it myself. Perhaps I never shall.

Good Luck.
"No Dougal, these cows are SMALL, those cows are FAR AWAY"
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