TPO trees with overhanging branches

TPO trees with overhanging branches

Postby trevors » Mon Apr 06, 2015 5:17 pm

New houses are being built along my boundary. I have a row of TPO trees on my land and the builders have mapped out the root protection zones and kept the foundations beyond these limits. However, the branches of the TPO trees also reach to or beyond the root protection zone lines. Now the builders are asking the local authority for permission to cut the branches of the TPO trees back to my boundary.

The branches are causing no interference with building work but will be overhanging the gardens of the new houses. The developers were well aware of these TPO trees at the time of application and the possible contention of the trees was raised at the time in letters of complaint.

Do I have any rights to prevent this application for permission to cut back the branches?

Thanks.

Trevor
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Re: TPO trees with overhanging branches

Postby Collaborate » Mon Apr 06, 2015 9:09 pm

Don't know much about the process, but aside from the TPO issue you can't prevent a neighbour cutting back to the boundary.
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Re: TPO trees with overhanging branches

Postby arsie » Mon Apr 06, 2015 11:59 pm

As long as the developers adhere to procedure and follow orders there is bugger all you can do.

Make sure you find out exactly what the tree officer allows. Developers take liberties!
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Re: TPO trees with overhanging branches

Postby trevors » Tue Apr 07, 2015 8:30 am

Thanks for your comments.

I was wondering if there are any views on the Court Cases that have clarified the wording on this type of application? Most quote "Sun Timber Co. Ltd. v Leeds City Council" and it comes down to the difference between common law and TPO protection eg

Common law = overhanging branches from a non-TPO tree can be cut down by the neighbour
TPO rules = 'Actionable nuisance' has to be proved in order to cut overhanging branches. This equals, the branches must be causing actual damage or are in imminent danger of causing actual damage.

I'd be most interested to hear your views/opinions/experiences on this aspect.

Trevor
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Re: TPO trees with overhanging branches

Postby Treeman » Tue Apr 07, 2015 9:30 am

trevors wrote:TPO rules = 'Actionable nuisance' has to be proved in order to cut overhanging branches. This equals, the branches must be causing actual damage or are in imminent danger of causing actual damage.




Where did you get that inaccuracy from????
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Re: TPO trees with overhanging branches

Postby mugwump » Tue Apr 07, 2015 9:50 am

Treeman wrote:
trevors wrote:TPO rules = 'Actionable nuisance' has to be proved in order to cut overhanging branches. This equals, the branches must be causing actual damage or are in imminent danger of causing actual damage.




Where did you get that inaccuracy from????


See http://www.southnorthants.gov.uk/1481.htm
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Re: TPO trees with overhanging branches

Postby MacadamB53 » Tue Apr 07, 2015 9:53 am

Hi trevor,

if the tree is causing an actionable nuisance (ie it is damaging someone else's property) then the affected neighbour can exercise their common law right to abate the nuisance without having to ask the LA for permission (makes perfect sense when you think about it).

the TPO has been granted so that permission must be obtained before any works can be completed EXCEPT if the works are necessary to abate an actionable nuisance (or a danger to life).

the Ayres and Sun Timber Company Ltd v Leeds City Council case provided a judgement on the intended meaning of the word "nuisance" in the relevant legislation (ie that it must mean "actionable nuisance" otherwise there'd be little point to a TPO where a tree is within range of a boundary).

Kind regards, Mac
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Re: TPO trees with overhanging branches

Postby arsie » Tue Apr 07, 2015 10:16 am

Simple search first page this http://www.southnorthants.gov.uk/1481.htm which includes
This situation has changed. A recent legal case in the High Court (Perrin vs Northampton Borough Council) has given clearer direction on how the ‘nuisance exemption’ should be applied. It has been clarified that ‘nuisance’ should be interpreted as being ‘actionable’ in law. This means that any tree cutting works proposed would have to have the effect of preventing or abating actual or imminent damage. For example, roots undermining foundations or overhanging branches damaging a roof.

On further checking I found the judgement had been overturned on appeal
http://www.bailii.org/ew/cases/EWCA/Civ/2007/1353.html

As I understand, it was doubtful the mature oak roots were proved to have caused Perrin's house to be affected. The appeal judgement was that, if engineering works could abate the nuisance i.e. underpinning, then that way should be taken. The mature oak was of amenity value in the landscape and another way existed to abate the nuisance.

That is my first reading of the appeal without painstaking checking etc and I could be wrong. I have paraphrased paragraphs that caught my eye and I may well not have expressed in my single short paragraph the full or correct legal nuances. So, definitely, IMHO.
Last edited by arsie on Tue Apr 07, 2015 10:43 am, edited 1 time in total.
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Re: TPO trees with overhanging branches

Postby trevors » Tue Apr 07, 2015 10:43 am

Thanks for that.

I'm not sure if this post got through but I'll outline it again just in case.

I have just discovered that 'actionable nuisance' has now been incorporated into Planning Guidance. This is a copy from the document eg

National Planning Policy Framework
• Planning practice guidance
• Tree Preservation Orders and trees in conservation areas

Guidance Making applications to carry out work on trees protected by a Tree Preservation Order
Exceptions relating to applications to carry out work on trees


Paragraph: 082 Reference ID: 36-082-20140306
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.Revision date: 06 03 2014 "

Having read all that can the developer next door cut any of my TPO overhanging branches that are merely overhanging?

Trevor
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Re: TPO trees with overhanging branches

Postby arsie » Tue Apr 07, 2015 10:54 am

That March 2014 revision reflects the 2007 appeal clarification. They took their time!

Trevor, I still think the developer must follow the procedure i.e. apply for permission. Whether or not the local tree officer says yea or nay may depend on individual circumstances. In my own experience the council directed an experienced tree firm to be hired (at my father-in-law's neighbour's expense) and this firm carefully removed selected limbs of a mature ash tree. I have the results drying out in my wood shed :)

In the Perrin case, the mature oaks were a local feature, defining and enhancing the landscape in the village (of Great Billing - they may well be visible on Streetview): cutting one of them down was rejected by the council and they were justified at appeal.
Last edited by arsie on Tue Apr 07, 2015 11:17 am, edited 2 times in total.
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Re: TPO trees with overhanging branches

Postby MacadamB53 » Tue Apr 07, 2015 10:59 am

Hi trevor,

the link provided by mugwumps is a communication from South Northamptonshire Council to say they will no longer allow neighbours to cut back encroaching branches or roots on the basis they're causing a non-actionable nuisance (ie not causing damage) because "the position has just recently changed" - though they go on to say this apparent "recent" change was triggered by the judgement in an eight-year-old case (Perrin v Northampton Borough Council) which itself drew from the 1980 case of Sun Timber v Leeds City Council with regards to defining "nuisance".

Kind regards, Mac
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Re: TPO trees with overhanging branches

Postby MacadamB53 » Tue Apr 07, 2015 11:01 am

Hi trevor,

Having read all that can the developer next door cut any of my TPO overhanging branches that are merely overhanging?

Yes - once permission is granted by the LA.

Kind regards, Mac
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Re: TPO trees with overhanging branches

Postby arsie » Tue Apr 07, 2015 11:06 am

If permission is granted I doubt any old person will be allowed to saw away if there is a TPO.
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Re: TPO trees with overhanging branches

Postby arborlad » Tue Apr 07, 2015 11:51 am

trevors wrote: Now the builders are asking the local authority for permission to cut the branches of the TPO trees back to my boundary.


Thanks.

Trevor



You will have an immediate conflict of interests here.

A lot will depend on the scope and nature of works requested and what the trees are.

If the works are approved, it's usual for the works to be carried out by a locally approved contractor who must carry out the work to best arboricultural practice - best practice and cutting to the boundary will seldom go hand-in-hand.
arborlad

smile...it confuses people
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Re: TPO trees with overhanging branches

Postby Treeman » Tue Apr 07, 2015 12:57 pm

arsie wrote:If permission is granted I doubt any old person will be allowed to saw away if there is a TPO.



The LA can condition the standard of the works but not who executes the works
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