Encroaching roots query

[Gary Prentice]

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..."

 

It's normally a primary purpose up here, the design layout normally lands with the topographical plan:biggrin:

 

But you're right.

[kevinjohnsonmbe]

It's normally a primary purpose up here, the design layout normally lands with the topographical plan:biggrin:

 

But you're right.

 

Did an AIA last week AFTER the Decision Notice (refusal)!!

[kevinjohnsonmbe]

Anyone seen the (or even better been on the seminar) 31 May post on Jeremy Barrell's Facebook page https://www.facebook.com/Heritage-Tree-Management-573985506028429/

 

Interesting stuff, looking forward to hearing more when (if) the details are available.

[Arborist]

What's Mynors doing now then?

[Arborist]

Thanks, so does that mean there will be no updates of his work to do with trees?

[daltontrees]

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.

 

Perhaps not black and white but I don't see the shades of grey that you seem to. In cutting back roots the cutter is not indirectly depriving the tree owner of property, since even if the tree falls over it still belongs to that same person. In cutting it, one would be depriving the tree owner of the continuing use of your soil to provide the tree with the benefits of that soil.

 

I believe there can only be one legal position that does not fall foul of tried and tested legal principles, and that is that if the cutter foresees failure of the tree if roots are removed, and advises the tree owner to look out for the ensuing risks, and gives adequate time for the tree owner to put contingency plans in place, he must be allowed then to cut back the roots, without any justification.

 

There is a proviso to that in scots law, which may have parallels in english law, but I have been unable to track down any source more recent than the third century AD so I imagine you english punters won't be interested in it.

[daltontrees]

Thanks, so does that mean there will be no updates of his work to do with trees?

 

Someone at his offices has taken over this role formally or informally. Stephanie someone, don't recall the surname.

[Gary Prentice]

[quote name=daltontrees;1588811

 

I believe there can only be one legal position that does not fall foul of tried and tested legal principles' date=' and that is that if the cutter foresees failure of the tree if roots are removed, and advises the tree owner to look out for the ensuing risks, and gives adequate time for the tree owner to put contingency plans in place, he must be allowed then to cut back the roots, without any justification.

 

.[/quote]

 

Didn't I say that?

[daltontrees]

Didn't I say that?

 

You did, I just added that a reasonable period should be left between warnign and cutting. But I was also thinking through the implications of any other interpretations and systematically ruling them out on the grounds of what I would consider unassailable (english) common law.

[daltontrees]

This doesn't stack up. If I was to drive my bulldozer around to your house and demolish it, would I not have deprived you of your property, even if you still have all the bricks and slates in a big pile. Also, it flies in the face of the TCPA. If you cut down a protected tree it is an offence. That the tree is still there, albeit now a pile of logs and woodchip is not mitigation. That is because it's not about cutting the tree down per-se. It's about the loss of other things, like amenity.

 

Tree roots cannot trespass and in so doing acquire rights or benefits over the land they occupy. This is because the tree is not separate to the soil as you suggest. It is of the soil. It is essentially the same thing.

 

Unless TPO'd there is no reason to justify the cutting back of encroaching roots, or branches. I disagree that telling someone that you are going to put them at risk of harm absolves them of their duty of care. The duty of care being a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. So, taking this definition forward, cutting the roots could foreseeably result in harm, e.g. the tree failing. To meet the duty of care the cutter must take reasonable care to ensure it doesn't cause harm. If they knowingly do something that could cause harm they have breached their duty of care.

 

Neither can the cutter expect that the tree owner should put themselves at risk of harm by cutting the roots back if given the time to do so. And I would suggest that it is also unreasonable for the tree owner to have to remove the tree/ destroy their own property, to which they are perfectly entitled, at the behest of the cutter.

 

At the end of the day it will before the Courts to decide the proportionality of blame, and all parties will bear some responsibility.

 

Stephanie Hall

 

Trying to keep this simple. Firstly the OP didn't ask about teh special situation of protected trees. So I am ignoring that for now, as it's clearlyt a different set of rules arising form statute.

Secondly, if you come round and bulldoze my preoperty you will have taken access to my land and that would be wrng. You will have wilfully destroyed my property and that is wrong. If you destroyed it from next door with a rocket launcher, that would still be wrong.

 

Clearly bricks are still property, but when arranged with mortar and witha roof on their worth chages form their cost to their value. And as you say a felled tree no longer has amenity value and the value of the logs might be small recompense. \but this still misses the point. A tree that has grown partly dependent on the support and nutrients of a neighbour's land has no heritable right to continue to rely on that support and nutrition. Ther is no such thing as a prescriptive servitude right (or easement in engish legal language) of support or nutrition for trees. It is just not possible to equate trees to any other form of trespass or encroachment, because trees encroach by their very nature when close to a boundary. I believe the law as evolved to strike a balance - it is not wrong to let your tree roots encroach, it is only wrong to let this happen to the extent that it damages a neighbour's property, and of the neighbour wants to regain full use of his land or abate a nuisance himself he can cut back at will. I think tha tthe law would hold him liable for harming or damaging the neighbour or his property if he does this in such a way that that damage could be foreseen and could have been averted by allowing the tree owner to anticipate it and pre-emptively prevent it.

 

I expect we'll dusagree on this if youy do not see that the tree owner's tree is dependent on support and nutrition to which he has no right. Broad societal and common law tolerance of the innocent but everyday encroachment of roots cannot possibly equate to creating an entitlement of the tree owner to assert rights to the unadulterated amenity value of his slightly ill-gotten gain.

 

We all no doubt have to advise customers and clients about their rights and obligations. To me it sucks to duck out of this by saying that simple everyday situations like encroaching roots cannot be resolved without bringing lawyers in. I go as far as I am confident to do by advising on legal principles to quite a high level and I have found that parties see the fairness and logic in the sort of position I have set out above. It might bite me on the bum one day if I'm wrong. I tried to flush the principles out on UKTC last year, but there was no rebuttal from anyone to my reductio ad absurdum postulation of a servitude right of support and nutrition.

 

But perhaps I was just unlucky to be posting between Dr. Mynors' withdrawal and Stephanie Hall's arrival.