Encroaching roots query

[tree79]

Brilliant advice thank you

 

I have recently been looking at perrin &another V Northampton borough council, possibly have to treed carefully if felling a tpo tree for this reason.

 

I know in that particular case the tree is located a reasonable distance for the property.

Edited June 11, 2017 by tree79

[Gary Prentice]

Brilliant advice thank you

 

I have recently been looking at perrin &another V Northampton borough council, possibly have to tread Very carefully if felling a tpo tree for this reason.

 

I know in that particular case the tree is located a reasonable distance for the property.

 

Fixed that for you!

 

I always, always explain that this is my understanding, as an arboriculturist, and suggest seeing a solicitor - if things are heading that way!

 

IMO it's all very dodgy ground, LA legal departments might be very very good and know the position, or not! You'd get plenty of sleepness nights thinking that your defence for contravening a TPO was 'some bloke on the internet said it was ok'

[Gary Prentice]

Gary; you must have had the permission of the tree owner in order to remove it. Maybe they wanted rid of it, and the neighbours drive was a good excuse. Had they declined to allow you to remove the tree and you had severed the roots and the tree failed do you think that the lawful duty of care would not somehow apply. The consent to remove the tree or, telling the neighbours you intend to put them at a foreseeable risk of harm, does not put you above the law. There would also be a likelihood of compensation if refused, as was the original decision.

 

Sorry Edward, I thought I'd got it across better. The owner paid for the removal. It was damaging their drive too - but couldn't be a legal nuisance to them - which was why I submitted on the neighbours behalf.

 

The neighbour could have;

a) applied to the county court for an abatement of the nuisance - forcing the owner (and the LA, I assume) to remove the tree. At some legal expense to all concerned.

b) Started digging up the drive, with tree surgeons standing by to remove the tree under the imminently dangerous exemption, or,

c) gone through a tree app and appeal - which we did.

 

Kevin; being less mischievous may mean not cutting all the roots off. Exercising the duty of care may mean not cutting all the roots off. Off course there's a conflict here between the right to cut to the boundary, and the duty of care. This is the balance that has to be struck when considering what action is reasonable and prevents foreseeable harm, and exercising the right to self-abatement.

 

It is striking that balance which as professional arboriculturists/arborists we have to strike when advising our clients and carrying out the work.

 

 

As I said in another post, it's sticky ground and should the occasion arise I'd happily admit that this is my understanding but I'm an arborist/arboriculturist - not a lawyer and neither is anyone else on here, that I know about.

[tree79]

Thanks Gary

 

I will remove you details from the letter stating 'you told me it was OK'

 

 

 

Thanks again, really useful thread

[daltontrees]

5.3.3 Mynors vol 2

 

Sorry, this does not mean anything to me as I do not have the current version of Mynors.

[daltontrees]

Sorry, this does not mean anything to me as I do not have the current version of Mynors.

 

OK, I think from what others have said about s 5.3.3 that this is the same subject matter as s 3.6.3 of the first edition. Here is what I think is the trelevant short paragraph.

 

"It has also recently been pointed out that "where there are two ways to abate a nuisance, the less mischevious is to be followed". This echoes the obiter remark of Lord MacNaughten in Lemmon v Webb, suggesting that in thcases where some alternative remedy could be effected without mischief to teh tree owner, that remedy oght to be preferred."

 

[The 'recent' reference is to a case from 1927!]

 

This paragraph is sandwiched between two others which when read in context suggest that the law is not entierely clear and that a cautious approach is needed as a result. Basically, there is no settled position, which is the source of frustration in many cases. Put plainly, if someone must risk losing litigation as a means of finding out whether he was right or wrong, everyone in that situation is in limbo and that is not good for society not to be able to go about its innocent daily business, nor for proprietors to be able to enjoy their property fully. The law says that ignorance of the law is no excuse, but if the expert on a highly specialised are of law (Mynors) such as abatement of encroachment of trees in relation to tort and negligence does not have the answer after painstaking research, there seems to be no absolute clarity.

 

A few days ago I mentioned a special situation in scots law and as expected no-one on this english-centred site took me up on it. They didn't. So I'll tell you. It is similar to the 'mischief' principle. And this I think merits a bit of expansion. Some of the debate here has suggested that mischief is the same as excess, but the word 'mischief' has never meant that to me. If we were looking at whether the extent of root removal close to causing the death or failure of the whole tree, we might think of 'careless' or 'wilful', and if it were TPO situation this could be a relevant measure. But in a non-TPO situation, if the true measure is 'mischevious' then it is not a question of whether resultant harm or damage to the tree owner should have been foreseen but whether it was intended, or perhaps a little less cynically the abater was indifferent to the outcome for the tree owner. The key point is that mischief implies intention rather than lack of foresight. If so, and if we take the relevant authorities as literally as we can (given that some of them contain obiter comments), the liability of the abater to the tree owner is not a matter of negligence but of wilful intent.

 

So back to my point. I think it is a reasonable and defensible position for an abater to give reasonable notice, including foreseeing failure of the tree, and then to proceed with abatement.

 

There remains only one question in my mind, and it is a complcated one. It is said that root encroachment is a nuisance, but others say that it is a nuisance only if it causes damage. Even that is a narrow interpretation of nuisance, since nuisance also includes prevention of reasonable enjoyment. But can the neighbour remove roots that are not a nuisance (say, he just wants to dig over the area of roots to plant vegetables)? And if that caused the death of the tree, would his intentions have been mischevious? Or if he wanted to build an office in his garden (as I have just done) under permitted development rights, with no exercise of control by a LPA? These are reasonable uses, reasonable enjoyment of a person's land. Is he to be denied these because he must fear being sued for the death (and loss of value) of a neighbouring tree? I know what I think.

 

My summary: self-abatement causing risk to tree owner without notice is only not acceptable when there is mischievious intent or indifference to the safety of the tree owner. Self-abatement to remove nuisance or gain reasonable enjoyment of land, following reasonable notice, is defensible. There's a small grey area in the middle, where the examination of the proportionality and motives of the abater would decide liability of the abater for resultant harm or damage.

 

I expect no replies, but it's clearer to me now.

[Jon Heuch]

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.

 

You're quite right - what happens in Court will depend upon the facts so things could go either way. What we need to do is identify good practice, within the law and promulgate it. That way the matter should never get anywhere near a Court!

 

The common law right of self-help establishes that one landowner can abate a nuisance caused by encroaching roots and branches. It's likely that anyone cutting roots will have a duty of care to anyone within falling distance of the tree so it could be argued that they could be blamed for any consequence of cutting of roots. So they have both a right and a duty of care. It's up to the cutter as to how they comply with their duty of care. Writing to the tree owner, giving them adequate notice of the root cutting and indicating that you think the tree will/may become unstable seems the very least you should do. Giving them a date and time and suggesting what they might need to do - employ a consultant, remove the tree etc - might be just as reasonable, depending on the consequences of tree failure.

 

If the tree become immediately unstable (ie the same day) and the tree owner did nothing I think it could be argued that the cutter bore some of the blame for whatever happened and the cutter might need to take appropriate safety measures - close a road for example. If the tree was about to fall onto the cutter's house then we would all know who to blame!

 

If the tree fell down in 5 days after cutting you would be in a very grey zone; if it fell in 5 years time I think it would be a different matter.

[daltontrees]

If the tree was about to fall onto the cutter's house then we would all know who to blame!

 

Please elaborate. If notice had been given by the cutter and the tree owner did nothing about it, I would expect the tree owner to be to blame for harm or damage to the cutter. Any other interpretation that makes the cutter to blame flies in the face of the established principle in law that the owner of an encroaching tree can never gain title to enjoy support from a neighbour's land. That much at least is clear from as far back as Lemmon v Webb 1894. If you are conversely suggesting that the encroached party cannot do anything in situations where (i) he needs to remove roots to make reasonable use of hs own land (ii) the tree owner is aware of the resultant risk to the encroached party but does nothing about it (iii) the encroached party cannot cut the roots for fear of being harmed by the tree - then a mockery has been made of the law.

 

If you are suggesting that there is some other remedy than self-abatement by the cutter I'd be interested to hear it. It would be if anything a relief to hear that there is a less drastic way for the cutter to regain reasonable use of his land without then being exposed to entirely foreseeable harm or damage from the tree.

[Jon Heuch]

Please elaborate. If notice had been given by the cutter and the tree owner did nothing about it, I would expect the tree owner to be to blame for harm or damage to the cutter. Any other interpretation that makes the cutter to blame flies in the face of the established principle in law that the owner of an encroaching tree can never gain title to enjoy support from a neighbour's land. That much at least is clear from as far back as Lemmon v Webb 1894. If you are conversely suggesting that the encroached party cannot do anything in situations where (i) he needs to remove roots to make reasonable use of hs own land (ii) the tree owner is aware of the resultant risk to the encroached party but does nothing about it (iii) the encroached party cannot cut the roots for fear of being harmed by the tree - then a mockery has been made of the law.

 

If you are suggesting that there is some other remedy than self-abatement by the cutter I'd be interested to hear it. It would be if anything a relief to hear that there is a less drastic way for the cutter to regain reasonable use of his land without then being exposed to entirely foreseeable harm or damage from the tree.

 

If the tree were to fall down (causing damage/harm/injury) shortly after cutting the roots - same day or without much delay - it should be easy to argue that the falling of the tree was caused by the person cutting the roots. Having a right to cut roots does not allow someone to be reckless, mischievous or whatever. They have a duty of care and they can be negligent. A claim could be made against them for being negligent....the fact that they had a right to cut forms a part of the picture but doesn't offer a sound defence. The fact that there is no alternative to cutting the roots clearly explains why the roots were cut but again doesn't allow negligent or reckless behaviour. I don't think this makes a mockery of the law.....things can just be a bit more complicated than we might like.

[kevinjohnsonmbe]

If the tree were to fall down (causing damage/harm/injury) shortly after cutting the roots - same day or without much delay - it should be easy to argue that the falling of the tree was caused by the person cutting the roots. Having a right to cut roots does not allow someone to be reckless, mischievous or whatever. They have a duty of care and they can be negligent. A claim could be made against them for being negligent....the fact that they had a right to cut forms a part of the picture but doesn't offer a sound defence. The fact that there is no alternative to cutting the roots clearly explains why the roots were cut but again doesn't allow negligent or reckless behaviour. I don't think this makes a mockery of the law.....things can just be a bit more complicated than we might like.

 

 

What if's, as ever!

 

What if, the cutter had informed the owner of the potential for increased hazard and the owner failed to act prior to a failure causing harm/injury.

 

Which negligence trumps the other??

 

(I know, impossible to answer other than by a court judgement of a set of actual circumstances and an assessment of degrees of reasonableness!!)