Can I as a resident ask for the removal of a Parish Clerk if I can prove a pattern of abuse of power?

Question

Question 1 - Trees on the stream on the opposite bank to mine and a neighbours house are dangerously overhanging our properties. The bank is eroding and there is a real danger that they will topple, (one already has). The land under question is a strip perhaps 60ft long and 8-10ft at its widest. The land is in the very middle of our village and not owned by anyone, (this has been confirmed by searches). Can the PC help?

Answer - That neither the trees nor the land belong to the PC, therefore the PC can do nothing. The District Council might help.

Question 2 - I give three examples of land within  50ft of the land under question that the PC has responsibility for. I also quote Local Government Act 1972 - Acquisition of land by agreement by Parish and Community Councils. I ask that my elected Councillors be the ones to decide on my question/proposal.

Answer - It is not possible for a PC to takeover looking after trees it does not own. It simply does not have the power or money to do this. (Exact Words)

Conclusion - My request is not put to elected Councillors, but summarily decided upon by the Parish Clerk, who clearly has budgetary authority as she decides what PC money is spent on. Is the Parish Clerk the ultimate authority on a PC?

Answer 1

Personally I cannot see any "abuse of power" just straightforward factual answers to your questions. The clerk does not decide where money is spent the council do. The clerk would possibly be the financial officer with a duty to "balance the books" but the council decide what monies are needed to be spent where. It seems the problem is that ownership of the land in question is the sticking point  which when resolved would allow for solving the matter. As the clerk has said the local authority might help or more likely the local water authority as they could own the banks to the water course. I am sure that they would welcome and respond to your report that a tree has already fallen presumably into the stream.
The clerk is there and is tasked as the proper officer to advise the council of the legal position of the council and its decisions it appears that she has answered you correctly. There is nothing preventing you raising the matter at the next parish council meeting in the open session at which all councillors can be addressed.

Answer 2

I suspect that the land is owned by someone, although not registered at the Land Registry. Under riparian ownership legislation it is likely to belong to the owner of the adjoining land. Fences are not legal boundaries, so the neighbouring owner probably owns either as far as the top of the bank or perhaps the middle of the stream.

Comments

Looking for ownership of land can be quite lengthy. We had a resident who wanted to remove a tree that was damaging his boundary fence and on the grass verge next to a road. The parish didn't own the land nor did the district council. Turned out it belonged to a small parish in the next county. With so many boundary changes over the years these small parcels of land become 'lost' on the records. Searching old maps may help, and these are available online.

Answer 3

Your post does not imply an abuse of power, it shows an answer you’re not happy with.

Why don’t you attend the next council meeting (online or in person) and present your points to the council for debate?

Answer 4

You can ask for the removal of the Clerk but the Parish Council would not be under any legislative obligation to make it happen. From the information given, you have not demonstrated any proof that the Clerk has exercised any abuse of power.

Comments

Interesting comment Graeme_r,as I would have thought that a member of the public has no right to request the removal of a Clerk as the Clerk is not elected...  It is like a member of the public insisting that a waiter be sacked because they have served them badly - it just cannot happen and would put the restaurant in a whole host of mess if they complied...

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A member of the public can ask anything they want - the reality is as you say the same as your example with a waiter.

Answer 5

There is nothing to stop a parishioner from raising such a matter at a council meeting under public participation or, if the council does not allow for that, just write in and ask that your proposals be discussed at the next council meeting.  Try to be as clear as possible about what you see as the advantages of the council taking up responsibility for the said piece of land and set down the legislation that would enable the council to act.

If you don't feel you can produce written proposals, go along to the next Annual Parish Meeting and voice your ideas. You may even manage to rally support from other parishioners present.

Answer 6

Trees are always an emotive subject and often a battle of wills. However I agree the Clerk has not stepped out of line, in fact I would be surprised if she hasn't already run her reply past the Chair or Vice Chair before clicking send. I know our Clerk almost certainly would. Often people send in tree complaints almost on a whim so it is sometimes difficult to know which do really need more attention from an email.

Following up the email with your personal representation (and neighbour supoort if pos) at a monthly meeting will carry more weight than an email alone. If I were you after making your point I would suggest that you ask of the Parish Council if they could help you and your neighbours by asking the main council Tree Officer to visit and inspect the trees in question. You can of course request a Tree Officer visit yourself but it is that bit more likely to acheive the results you obviously desire if there is support from your PC which in turn has been gained by requests from more than just yourself (ie your neighbours) Probably also a good idea to ask if you could be present at the Tree Officer's visit.

As far as I can recall even a TPO listed tree would not be allowed to threaten property or personal wellbeing and a Tree Officer's inspection should at least either provide peace of mind on that score or conversely start the ball rolling to make the trees safe one way or another. The none ownership of land will surely be a problem, and the need to investigate this (probably and frustratingly for not the first time) will slow things down but if the trees are deemed to be unsafe by the Tree Officer he/she can not turn a blind eye to that fact.

While nobody of an official capacity is acknowledging that there is a problem then there is no problem to be dealt with. You need to get official recognition that there is a present danger and then you can start leveraging that fact.

Answer 7

It’s not unusual for pockets of land to have no owner we have a busy track giving access to land owned by three separate local authorities and every one passes the buck even thought its dangerous
As the trees are next to a stream if they fall I assume they will obstruct it and possibly cause flooding so if I was you I’d approach the Environmental Agency

Answer 8

No. The Parish Clerk is an employee of the Council, is not voted in and has no authority to decide what money is spent. He/She may only advise the Council. The Councillors, as one, are fully responsible for any money spent and the decision must be made under an agenda at a meeting. If made otherwise the Councillors are committing an illegal act. One big problem of many Parish Councils is that large numbers of Councillors are not trained, do not make themselves aware of laws and believe the Clerk and the Chair are the overriding  authority of the Council .

Answer 9

I had a similar problem with an open ditch adjacent to Council land that was on the edge of a busy track that apparently has no owner
My argument was that if we didn’t act who would

How would we feel if someone got hurt and we could have prevented it.

Would the Parishioners object to their money being spent to protect them
The Councillors voted to erect a secure fence
The Parishioners elect their Councillors to represent their interests so any matters like this should be put before the Councillors

Answer 10

Don't bother messing around with clerk or even the PC.  What's the point?  If, as you say, they don't own the land then they have no liability for tree(s) thereon.

If (if) you can establish ownership of the land, get a suitably qualified arborist / arb consultant to compile a tree risk assessment (you'll have to pay for that of course) and forward it by recorded delivery to the land owner.

The land owner is under absolutely no obligation to act upon the tree risk assessment but you will have a documented audit trail which may be relied upon in a future civil action for damages IF there is damage or harm caused by the neighbouring land owners inaction in relation to a known issue with the tree(s.)

The tree risk assessment negates any mitigation claim by the land owner that they had taken reasonable steps to prevent harm to others and the recorded delivery negates a claim that they were unaware of the potential hazard - this all comes under the Occupiers' Liability Act ('57 & '84.)

You may feel aggrieved at having to foot the expense of a tree risk assessment but the benefits may not be immediately apparent.

You state that 1 tree has already fallen and that some of the others are "dangerous."  

There is a huge potential for those within the sphere of influence of tree(s) to over estimate the ACTUAL risk of harm from falling tree(s) or branches.  This is where the engagement of a Professional Tree Inspector and/or a Quantified Tree Risk Assessor will provide quantifiable assessment of risk based upon Visual Tree Assessment, knowledge of tree species, age class, physiology etc.  In many cases, such a report actually provides the reassurance that the tree(s) DON'T present a quantifiable risk and the person with the concern can get on with their life.

There also exists the inalienable right of 'self-help' to abate a nuisance which is being visited upon you.  A person may remove limbs / branches / roots of tree(s) which cross a boundary.  This right even exists where the tree(s) may be subject to Tree Preservation Order - especially if they create a statutory nuisance.

There are certain caveats attached to those rights to self abate a nuisance and the advice of a professional arborist / arb consultant should be sought to ensure actions are lawful.  In essence, you must take the course of least mischief and informing the landowner in advance is one of those reasonable courses of action.

Don't bother with the PC - there's nothing they can do other than pass it up to LA.  You could try submitting a "Dangerous Tree Report" to the LA but that will likely require you to have first identified the land owner anyway.

LA can (if they want to - it is a "discretionary" power) take action under s23 Local Government (Miscellaneous Provisions) Act 1976 to compel the land owner to remove a dangerous tree.  Normally by serving notice and, if not completed within notice period, undertaking the work them self and placing a charge against the landowner.  

Get some professional advice from a qualified arborist and forget wasting your time with the clerk / PC.

PS - my webpage  https://www.empiretrees.co.uk - feel free to get in touch if you want more detailed / specific advice (pro bono)