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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 18742
Experience:  I have been practising for 30 years.
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I have a wall in a conservation area that is falling down on

Customer Question

I have a wall in a conservation area that is falling down on account of a tree with a TPO next to it. Building control have confirmed its dangerous and suggested taking it down urgently. Planning office said ok but I should submit plans for reinstatement. LA enforcement office stopped the works saying its a criminal offence to take it down without submitting plans to reinstate. Tree specialist says it will be impossible to reinstate the wall with the tree in situ. The wall is falling down and will cause severe damage to the tree and possibley
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Not yet.
JA: Have you talked to a lawyer about this?
Customer: Not yet
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Yes the wall could fall at any moment and I am powerless to stop it and worried that I will be held responsible for any damage to the tree or to nearby property or life
Submitted: 15 days ago.
Category: Law
Expert:  F E Smith replied 15 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

to clarify -

who owns tree?

Customer: replied 15 days ago.
I bought the strip of land behind my boundary wall a few months ago as the owner would not have anything to do with it and his lawyer said it would be pointless to sue as the land was left to trustees and they had no funds.
Residents in the street are opposed to me doing anything to the tree or wall without submitting plans to reinstate the wall. They are also worried that I may build a house on my land now that I have bought the thin strip in order to get access to my land from the could de sac. The garden was previously landlocked as I sold the house and kept much of the garden not realising the strip of land was privately
owned by someone else. The enforcement officer seems very much on their side despite me explaining it is impossible to submit plans without making the wall safe and excavating to see the extent of the foundations. The wall itself lies only 60 cms away from the tree and the strip of land the tree is on is just under a meter higher than the land in my garden on the other side of the boundary wall. The wall is approximately 10 metres long and cracked severely in two places along its entire height and leaning at about 20+ degrees from the vertical into my garden.
Expert:  F E Smith replied 15 days ago.

You are not careful, the local authority will issue a dangerous structure notice compelling whoever owns the wall to repair it or make it safe and if there is an argument over who owns it, they will simply do it and then take whoever they think owns it to court for the cost. The fact that it’s leaning into your land is irrelevant.  They can issue a dangerous structure notice even if it’s on private land and you are quite happy with it quite simply because anybody else could get injured and that would include trespassers under the Occupiers Liability Act 1984.

In the absence of anything to the contrary, any boundary wall would be jointly owned unless it’s obviously on one person’s land all the others.

I disagree that it’s pointless in suing the neighbour because if there are no assets, there is no point in having a trust and the trust has land and the land has value.  On the contrary, it is worth suing the trust because the trust will not have any money to litigate and therefore you should get judgement against them which you can then enforce by, if necessary, and forcing sale of the land.  It’s not going to be a do-it-yourself job but you would need to see a different lawyer.

I’m afraid that we are specifically not allowed to take instructions from here.

If the site were to be a source of potential clients, we would no longer be independent because we would have an interest in pursuing litigation.  With no interest in pursuing litigation, we can be really objective with our view is to whether something has a good chance or a limited chance of success.

In any event, for logistical reasons you would be better using a local solicitor .

I am glad to help.

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That only applies to new threads, not this one. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Expert:  F E Smith replied 15 days ago.

I have some further thoughts on this

You first need to get consent from the council to cut down the tree.

If they will not agree, then you can make a complaint to the Local Government Ombudsman otherwise you are faced with building the wall so that it “gets round” the tree and as this is a boundary wall, you are going to need planning permission.

I have seen many instances where the wall is built almost up to the tree although it does mean that the part adjacent to the tree will continually need work.

This is one of the burdens of living in a conservation area, but you can’t take it down without plans to reinstate.

I’m sorry to say that you are responsible if anybody is injured as a result of this because there is a process and that’s what you are going to have to go through.

Customer: replied 15 days ago.
If the wall falls over by itself as it is likely to do, do I still need to put in plans to reinstate it?
If a tree specialist says the existing wall foundations can not be removed and new foundations laid without causing catastrophic damage to roots and potentially unsettling the tree which one takes precedence the tree or the wall?
Customer: replied 15 days ago.
Am I obliged to have a boundary wall reinstated without any access through it (if there wasn't one before) to get to land on the other side of the wall when I own both bits of land?
Customer: replied 15 days ago.
Also if building control have inspected and said the wall is dangerous and needs to come down as soon as possible do I still need to go through submitting plans to reinstate first before I can take it down?
Expert:  F E Smith replied 15 days ago.

If the wall falls over on its own, just hope that nobody is underneath it because it would kill them.  You would be liable for that.  Check your insurance covers you for all of this.  It may not, contrary to what you think.

You still need planning permission to reinstate because the local authority have said that you do.  In this case, the judge jury and executioner.

Which takes precedence, the local authority decision.  It’s a conservation area and you have to reinstate the wall.  You cannot just get rid of it because you no longer want it.

If you want access through the wall, you are going to have to apply for planning permission for exactly that.

The plans are for reinstatement, not making it safe.  As I said, you have purchased a poisoned chalice here