Encroaching roots query

[kevinjohnsonmbe]

5.3.3 Mynors vol 2

 

 

Trouble can arise where "less mischievous" is more expensive...

🤔

[tree79]

Sorry to hack jack this thread a little,

 

I understand that the neighbouring roots are trespassing and they can removed, but by removing them the tree my be left unsafe, what cause of legal action could you take before you take any physical action? And if the roots where causing damage how can you claim for damages?

 

Many thanks

Tree

[kevinjohnsonmbe]

It may of course be less expensive. Each case would have to be assessed on its merits. Once again it comes down to a balancing act. More shades of grey.

 

Noting the case by case caveat and balancing act requirement, and jumping from theory to practical, I'm struggling to think of a scenario where a "less mischievous" means might be less expensive than a "more mischievous" means.

 

Less mischievous - ground penetrating radar, maybe hand excavation / airspade, sympathetically realign existing roots away from area of encroachment... (if that's even feasible)

 

More mischievous - backhoe trench, straight line root severance...

 

Unless we are considering the "whole package" potential costs which might necessarily include resultant legal / recompense for damages costs?

 

I'm not arguing just for the sake of it (for a change), just couldn't immediately bring to mind a scenario where less mischievous might be cheaper than more mischievous.

[tree79]

It may of course be less expensive. Each case would have to be assessed on its merits. Once again it comes down to a balancing act. More shades of grey.

 

Roots, and branches, don't trespass they encroach. If you remove roots you have a duty to take reasonable care to avoid foreseeable harm. I'm not sure why you would want to take legal action before starting the cutting, or to what end.

 

Regards the damage. The best thing to do is claim on the household insurance.

 

What if you can't remove the roots without leaving the in a stable condition?

[Gary Prentice]

Noting the case by case caveat and balancing act requirement, and jumping from theory to practical, I'm struggling to think of a scenario where a "less mischievous" means might be less expensive than a "more mischievous" means.

 

Less mischievous - ground penetrating radar, maybe hand excavation / airspade, sympathetically realign existing roots away from area of encroachment... (if that's even feasible)

 

More mischievous - backhoe trench, straight line root severance...

 

Unless we are considering the "whole package" potential costs which might necessarily include resultant legal / recompense for damages costs?

 

I'm not arguing just for the sake of it (for a change), just couldn't immediately bring to mind a scenario where less mischievous might be cheaper than more mischievous.

 

Reading Mynors and remembering other articles and conversations, I think the less mischievous alludes more to protected trees - that's my take anyway. Ie. With TPO'd trees causing a nuisance 'by encroachment', engineering solutions should, ideally, be considered and disregarded before the root severance begins.

 

I can't see though, in the absence of statutory protection, why any other means should or would need to be considered.

[Gary Prentice]

What if you can't remove the roots without leaving the in a stable condition?

 

Bluntly, that's the owners problem. If they didn't (or the previous owners didn't) prevent the tresspass/nuisance, why should the injured party have to suffer their inaction? You'd probably be negligent if you cut the roots without notice and the tree then failed, as has been pointed out in earlier posts.

 

I removed a TPO'd tree because the roots were damaging a neighbours drive. The nuisance was 'actionable', in that actual damage had occurred. Severing the roots would have made the tree immediately unstable.

 

The application was refused because the tree provided amenity, well it was TPO'd so we all understood that anyway.

 

Planning argued that engineering solutions hadn't been considered, and went as far to suggest that the neighbours house could be jacked up to account for resurfacing and raising the level of the existing drive (they did suggest this may have been possible, but unreasonable)

 

Anyway, the levels of the highway, pavement, driveway and garage didn't allow for an engineering solution, which I submitted to PINs

 

The appeal was upheld.

[tree79]

Bluntly, that's the owners problem. If they didn't (or the previous owners didn't) prevent the tresspass/nuisance, why should the injured party have to suffer their inaction? You'd probably be negligent if you cut the roots without notice and the tree then failed, as has been pointed out in earlier posts.

 

I removed a TPO'd tree because the roots were damaging a neighbours drive. The nuisance was 'actionable', in that actual damage had occurred. Severing the roots would have made the tree immediately unstable.

 

The application was refused because the tree provided amenity, well it was TPO'd so we all understood that anyway.

 

Planning argued that engineering solutions hadn't been considered, and went as far to suggest that the neighbours house could be jacked up to account for resurfacing and raising the level of the existing drive (they did suggest this may have been possible, but unreasonable)

 

Anyway, the levels of the highway, pavement, driveway and garage didn't allow for an engineering solution, which I submitted to PINs

 

The appeal was upheld.

 

Thanks Gary

I did this would be the case. Do you give any write notice just prove you've informed them?

[kevinjohnsonmbe]

Bluntly, that's the owners problem. If they didn't (or the previous owners didn't) prevent the tresspass/nuisance, why should the injured party have to suffer their inaction? You'd probably be negligent if you cut the roots without notice and the tree then failed, as has been pointed out in earlier posts.

 

 

 

I removed a TPO'd tree because the roots were damaging a neighbours drive. The nuisance was 'actionable', in that actual damage had occurred. Severing the roots would have made the tree immediately unstable.

 

 

 

The application was refused because the tree provided amenity, well it was TPO'd so we all understood that anyway.

 

 

 

Planning argued that engineering solutions hadn't been considered, and went as far to suggest that the neighbours house could be jacked up to account for resurfacing and raising the level of the existing drive (they did suggest this may have been possible, but unreasonable)

 

 

 

Anyway, the levels of the highway, pavement, driveway and garage didn't allow for an engineering solution, which I submitted to PINs

 

 

 

The appeal was upheld.

 

 

With the confidence of hindsight, that scenario you describe Gary, you "could" have just done it without even informing / applying to the LA - actionable nuisance trumps TPO.

 

Obviously, having taken the route (😁) you did resulted in a successful appeal so it's easier to say, with that knowledge, that you could have just cracked on without submitting an app.

 

Did this route result in additional cost to the customer?

 

Did LA then seek to impose re-planting condition??

[Gary Prentice]

I was younger, and less confident. I think we all may have ended up in court, rightly or wrongly.

 

No extra costs to customer, their drive was also damaged but the roots of their tree couldn't be a nuisance to them. I was preparing to submit, with details of all the additional costs of retaining the tree (which they'd seek to get re-imbursed from the LA) when the appeal decision came through.

 

No replanting condition - the original tree was 'the wrong tree in the wrong place' to start with and replanting anything would have led to a similar issue along the line.

 

I assume that the appeal is public record anyway, available somewhere, so Mick Boddy, the Inspector, stated that with much regret he upheld it because to paraphrase 'there was no alternative solution'.

 

We'd hoped (TO, PO and myself) to be enlightened as to the legal position, as a precedent for future use, but IIRC the decision didn't really go into the legal side of it enough to draw conclusions. Shows that we're all learning as we go along.

[Gary Prentice]

Thanks Gary

I did this would be the case. Do you give any write notice just prove you've informed them?

 

As yet I haven't been in that position. The application I wrote about was submitted with the knowledge of the tree owner and the neighbour. I think the neighbour was within his rights to have gone ahead, without the consent of the LPA, but he was unwilling to take the risk and prepared to await the outcome of the application.

 

On an unprotected tree, if over the fence discussion failed and common law law rights of abatement were going to be asserted, I'd definitely provide written notice, recorded delivery etc.