Encroaching roots query

[Arctostaphylos uva-ursi]

Please correct me if I am wrong. It is my understanding that any land owner can prune back the roots (and branches), of trees situated on neighbouring land,to his property boundary without seeking the permission of the neighbour (even if the trees are not causing any nuisance).

1. If the trees affected were to subsequently fall over who would be liable for the cost of the clear up/any resulting injury or damage to property?

2. Is there any case law where this has been tried?

[Gary Prentice]

Please correct me if I am wrong. It is my understanding that any land owner can prune back the roots (and branches), of trees situated on neighbouring land,to his property boundary without seeking the permission of the neighbour (even if the trees are not causing any nuisance).

1. If the trees affected were to subsequently fall over who would be liable for the cost of the clear up/any resulting injury or damage to property?

2. Is there any case law where this has been tried?

 

Can't remember the case law and I don't know of anything specific - more a culmination of cases.

 

I understand that if the cutter informs of his intention and warns that the tree may become unstable he hasn't acted negligently. The owner may be negligent if he is aware of the root loss and then ignores it.

 

Permission doesn't have to be sought. It's tort law (I think).

 

The tree owner has allowed the trespass and the adjacent landowner may exercise his rights, subject to statutory protection.

[bumble B]

Can't remember the case law and I don't know of anything specific - more a culmination of cases.

 

I understand that if the cutter informs of his intention and warns that the tree may become unstable he hasn't acted negligently. The owner may be negligent if he is aware of the root loss and then ignores it.

 

Permission doesn't have to be sought. It's tort law (I think).

 

The tree owner has allowed the trespass and the adjacent landowner may exercise his rights, subject to statutory protection?

 

I would still be wary of how far the pruning goes. If you sever buttress roots the tree will lose stability immediately meaning the tree would probably need removing. If the tree owner doesn't want to remove the tree I would use other channels. If the tree was an absolute beauty and roots were just pruned for the sake of it and killed the tree I wonder if the owner would have some sort of case for damages?

[Gary Prentice]

Can't remember the case law and I don't know of anything specific - more a culmination of cases.

 

I understand that if the cutter informs of his intention and warns that the tree may become unstable he hasn't acted negligently. The owner may be negligent if he is aware of the root loss and then ignores it.

 

Permission doesn't have to be sought. It's tort law (I think).

 

The tree owner has allowed the trespass and the adjacent landowner may exercise his rights, subject to statutory protection?

 

I would still be wary of how far the pruning goes. If you sever buttress roots the tree will lose stability immediately meaning the tree would probably need removing. If the tree owner doesn't want to remove the tree I would use other channels. If the tree was an absolute beauty and roots were just pruned for the sake of it and killed the tree I wonder if the owner would have some sort of case for damages?

 

That's the purpose of informing of your intention. It doesn't matter (legally) if you cause the loss of the tree either by instability or root loss leading to decline and death. The tree owner has 'allowed' his tree to trespass on your property and common law allows you to redress the trespass.

 

If root pruning leads to failure, the owner can claim he was unaware of the pruning and deny that he was negligent in assessing any increased potential to fail. If he is informed of the intent to prune the roots, the onus is on him.

 

If the tree is protected by a TPO or CA it's a bit different. In that case the trespass would have to be causing actionable nuisance (actual, physical damage and nuisance in a legal sense) and an application or 211 notice submitted - showing that engineering solutions, rather than root-pruning, had been considered and were either of excessive cost or impracticable/unrealistic.

[Arctostaphylos uva-ursi]

Thanks Gary

That was my understanding too. Although I find it rather baffling. Particularly because if the landowner had applied for planning permission the trees on the neighbouring property would have been picked up during the survey and, assuming they were healthy, the land owner would most likely be instructed to take measures to avoid damaging their roots. So it seems that if the trees on neighbouring properties do not have any form of statutory protection then they could be ignored when carrying out a BS survey.

[Gary Prentice]

Thanks Gary

That was my understanding too. Although I find it rather baffling. Particularly because if the landowner had applied for planning permission the trees on the neighbouring property would have been picked up during the survey and, assuming they were healthy, the land owner would most likely be instructed to take measures to avoid damaging their roots. So it seems that if the trees on neighbouring properties do not have any form of statutory protection then they could be ignored when carrying out a BS survey.

 

Someone better qualified and experienced will be along shortly....

 

But in the meantime the BS survey should (must?) identify trees on and off site that will be influenced or affected by the development. So the RPA's should be identified for all trees, on and off site, in the tree constraints plan which is used for the design layout.

 

As I understand it, the purpose of the survey is to inform the planning department, so even if the tree constraints plan isn't included in the planning application the TO would see the tree schedule and identify that an offsite tree could be at risk and tell the planning department to condition protection into the consent. That's an ideal world.

 

I know some LAs don't have TO's , those that do might not pass on the survey for review and other things go wrong. IMO BS 5837 requires/recommends including offsite trees so I always do - what happens after that in terms of conditioning protection etc etc is down to the planning department.

[Arctostaphylos uva-ursi]

 

I know some LAs don't have TO's , those that do might not pass on the survey for review and other things go wrong. IMO BS 5837 requires/recommends including offsite trees so I always do - what happens after that in terms of conditioning protection etc etc is down to the planning department.

 

Hmm. yes I do too Gary.

But it seems a bit much to place further restrictions on the developer when, without a planning application, he would be quite within his rights to dig up all roots from neighbouring trees along his boundary. Do you get my drift?

[Gary Prentice]

I do.

 

 

Then again, working within the exemptions of felling licences and in the absence of stat protection, he can clear fell the site pre-emptively at the same time. The system isn't perfect, but it's the only one we've got.

 

If you're involved with the tree owner and next door has potential for development, try to get a TPO.

 

I suppose that amending the TCPA could resolve such things, regarding pre-app works, but I'm not holding my breath

[Gary Prentice]

I'm not sure how the Courts would view this. If the cutter undertakes work on the tree and it dies, needs to be removed because of the risk it now poses, or fails, they have deprived the tree owner of their property.

 

Even if the cutter advised the tree owner of what they intend, and their right to self-abatement, it doesn't absolve them of their duty of care when undertaking the works. If they have stated their intention to do something they know may result in harm to the neighbours property and it comes to pass they have some responsibillity.

 

Things like this are never black or white. The Courts will apportion blame as they see fit, and it will almost certainly be shared between all the parties.

 

 

I was waiting for you to come along:biggrin: or anyone else with some knowledge. 193 views and there's only three of us debating the subject!

 

I can't remember who I spoke to or where I read it, but I'm fairly confident that it can't be a case that the neighbour has to accept the trespassing roots.

 

The tree owner has failed to control his property, in allowing the roots to trespass. Whose fault is it, that by cutting the roots - negating the nuisance (legal nuisance or otherwise) that the tree dies or even falls over?

 

I don't believe that the law expects the neighbour to have to suffer the continuing trespass for the sake of the tree? If the tree owner was responsible he'd have prevented it in the first place.

 

It's a shame Mr Mynors has moved on, because it would be nice to get a definitive answer on this.

[kevinjohnsonmbe]

 

As I understand it, the purpose of the survey is to inform the planning department, so even if the tree constraints plan isn't included in the planning application the TO would see the tree schedule and identify that an offsite tree could be at risk and tell the planning department to condition protection into the consent. That's an ideal world.

 

 

That's a secondary / consequential purpose perhaps Gary??

 

Surely (maybe in an ideal world!!) the actual purpose is to inform the design parameters of the potential build project...

 

"...the results of the tree survey, including material constraints arising from existing trees that merit retention, should be used (along with any other relevant baseline data) to inform feasibility studies and design options..."