Encroaching roots query

[daltontrees]

Yes I understand the scenario. But pasage of time would only make it harder to prove the root removal was the cause of failure. I'm saying that that's irrelevant to the situation where the encroached party says to the tree owner "I told you I would cut the roots. I told you it would probably cause your tree to fall over onto my property. But there is no other way of me using my land than by removing roots. You've had 3 months to do something about it. You haven't. So now I'm going to cut the roots. If the tree then lands on my property it will be your fault."

 

Has he no other remedy. Like any situation where a neighbouring tree is risky, he cannot apply to the courts for a specific implement to force the tree owner to remove the tree. Must he apply to the courts instead to get a specific implement to force the neighbour to remove the encroaching roots? Is that the appropriate remedy?

 

And thinking about that, the courts might only intercede if the encroachment is de facto actionable nuisance. It sets up an ill-defined scenario where an encroached party must at law tolerate tree roots unless they are such a nusance as to be actionable. That's not what Lemmon v Webb says. And Davey only adds that nuisance is actionable of there is damage. Mynors summarises nuisance as the existence of a state of affairs on one piece of land that materially interferes with the enjoyment of another piece of land. If 'actionable' and material interference are synonymous in this sense, then the poor encroached party contemplating the ordinary use of his own land to grow vegetables must raise a civil action to have the courts order the tree owner to remove the roots of the tree first. And if the tree owner fails to do so, he will be in contempt of court and could go to jail for it. But no-one can order him to remove the tree even if it is inevitable that harm or damage to the encroached party will arise. Proof of negligence might be prima facie and easy, but that will be no comfort to the vegetable growing man in the right.

 

This is not a hypothetical situation, I have had a case like this where the tree owner has stubbornly refused to allow any way forward for the encroached party. In the end the feud was so bitter that the encroached party moved house, while the tree owner had a restraining order imposed on him. And for me cutting back the branches of a 25 metre high beech tree without being allowed access to the stem of the tree for climbing was challenging under a torrent of threats and abuse from the tree owner. Maybe that experience is why I would like an answer to this scenario.

[Jon Heuch]

Has he no other remedy. Like any situation where a neighbouring tree is risky, he cannot apply to the courts for a specific implement to force the tree owner to remove the tree.

 

Well yes he can. He can apply to the court for an injunction. The trouble with that however is:

 

a) it is expensive

b) the level of proof required is well beyond what we might expect

 

That is the danger from the tree has to be imminent, significant and proven so.

 

Speculative risk will not work.

 

If a court were to grant an injunction failure to comply would lead to measures for not complying with the injunction - it still wouldn't "force" the tree owner to remove.

[Jon Heuch]

Yes I understand the scenario. But pasage of time would only make it harder to prove the root removal was the cause of failure. I'm saying that that's irrelevant to the situation where the encroached party says to the tree owner "I told you I would cut the roots. I told you it would probably cause your tree to fall over onto my property. But there is no other way of me using my land than by removing roots. You've had 3 months to do something about it. You haven't. So now I'm going to cut the roots. If the tree then lands on my property it will be your fault."

 

You are saying that the cutter of the roots is fully aware that the cutting of roots will dramatically increase the risk of failure AND that failure might lead to the tree falling on their own property. Interesting.

 

I don't see the failure to act prior to the roots being cut as an issue of negligence. The issue is one of trespass and/or nuisance. The negligence only arises from failure to act once the roots have been cut. ...

 

I do think that the specific events and their timing will play a role in who is to blame. Who has buried their head in the sand? Who has attempted to be reasonable? What professional advice has been received?

 

What would the professional advise? Be cautious. Document everything. Be reasonable. Take photos. Keep communicating. ......and nibble away at the roots slowly......no significant cuts at any one stage and the tree may respond by growing roots elsewhere? Or drill a hole in the largest woody root and pour some concentrated glyphosate into it? I don't think the law was designed for this level of detail!

[Gary Prentice]

I think drilling a hole and pouring glyphosate in would, maybe, be a step to far!

 

If the tree was lost due to root severance causing instability or died because of the root loss. that's a consequence of abatement. But poisoning leading to the loss/death of the tree just seems wrong!

[daltontrees]

I don't see the failure to act prior to the roots being cut as an issue of negligence. The issue is one of trespass and/or nuisance. The negligence only arises from failure to act once the roots have been cut. ...

 

Nor do I, although there was a time when the courts confused the two N words, up at least to late 60s. Some modern texts including Mynors caution the reader of the outdated terminology, but care is still needed in the reading.

[daltontrees]

Well yes he can. He can apply to the court for an injunction. The trouble with that however is:

 

a) it is expensive

b) the level of proof required is well beyond what we might expect

 

That is the danger from the tree has to be imminent, significant and proven so.

 

Speculative risk will not work.

 

If a court were to grant an injunction failure to comply would lead to measures for not complying with the injunction - it still wouldn't "force" the tree owner to remove.

 

Quite my point, the intransigent tree owner holds all the cards, and that is inequitable since it is he who has allowed the encroachment without title.

[daltontrees]

For me at least I think this thread has run its course. To conclude; there are essentially two views;

1. You have a right to abate the encroachment, irrespective of your lawful duty of care. So long as you inform your neighbour that you intend to undertake works that are likely to put them at risk of foreseeable harm you absolve yourself of any responsibility under the law.

• You have the right to abate the encroachment, but have a lawful duty of care to ensure your actions are reasonable and do not result in foreseeable harm.

 

If the first of those two points is meant to be a summary of my perspective, then I think you have misunderstood me a little. Of course the encroached party has a duty of care. It is how he exercises it that matters. Firstly recognising that abatement will create a hazard. Secondly considering whtehr there is any less mischevious way he can gain enjoyment of his land. Thirdly bringing that to the attention of the tree owner. Fourthly allowing a generous period of time for the tree owner to remove the potential risk.

 

This may not be as you suggest absolute absolution, but I would rahter have this duscussion before the event and I am not persuaded that the law can be interpreted any other way, because there are firmer authorities that refute any notion that roots create themselves a right to occupy encroached land than there are that suggest that considerate self-abatement should be constrained by fears of prosecution for damaging an encroaching tree.

 

My abater is deviod of mischief and is very different from the careless driver.

[Arctostaphylos uva-ursi]

Thank you all for your responses. I think I am a little clearer now on what's what.

It appears that the neighbour cutting the roots could be seen as negligent if he causes tree owners tree to fail in a relatively short period of time, particularly if he had not given the owner prior notice of his intentions. However, it would likely be difficult to prove negligence if the tree were to fail sometime later (e.g. from resultant root decay).

Assuming the dastardly deed has been done. For example: The neighbour wishes to build a shed/workshop under permitted development rights but his garden slopes from one side to the other. He employs a contractor to excavate along his boundary and in doing so the contractor severs the structural roots of mature trees located on the opposite property. The neighbour and contractor are lay persons and don't appreciate the possible consequences of their actions and therefore do not notify the tree owner. However the tree owner gets wind of what his neighbour has done and is rightly concerned that the stability of his trees has been compromised. Who would likely be found to have been negligent should one or more of the trees fail, let's say a month later?

[daltontrees]

Thank you all for your responses. I think I am a little clearer now on what's what.

It appears that the neighbour cutting the roots could be seen as negligent if he causes tree owners tree to fail in a relatively short period of time, particularly if he had not given the owner prior notice of his intentions. However, it would likely be difficult to prove negligence if the tree were to fail sometime later (e.g. from resultant root decay).

Assuming the dastardly deed has been done. For example: The neighbour wishes to build a shed/workshop under permitted development rights but his garden slopes from one side to the other. He employs a contractor to excavate along his boundary and in doing so the contractor severs the structural roots of mature trees located on the opposite property. The neighbour and contractor are lay persons and don't appreciate the possible consequences of their actions and therefore do not notify the tree owner. However the tree owner gets wind of what his neighbour has done and is rightly concerned that the stability of his trees has been compromised. Who would likely be found to have been negligent should one or more of the trees fail, let's say a month later?

 

I think everyone else has given up on this thread.

 

In the situation you describe, I owuld expect the blame to be apportioned between the neighbour and his contractor. The apportionment would bdepend on what the neighbour had instructed the contractor to do. If he said "excavate to the bounbdary, no matter what you come across, and don't tell me how it went" he would probably take all the blame. If he said "excavate, no matter what you come across, and tell me afterwards how it went" then the neighbour would learn of the roots and should warn the tree owner. If he said "excavate to the boundary" the contractor would be expected to find the roots and stop, or at least have a duty to warn of the impending tree issues. There's no such thing as a lay contractor.

 

Not knowing about trees can not be a valid excuse for negligence, a reasonable land owner would employ someone competent and follow their advice, and would be expected to take professional advice about a nearby tree whether he knows about trees or not.

 

That's my view anyway.

[Jon Heuch]

Who would likely be found to have been negligent should one or more of the trees fail, let's say a month later?

 

The simple answer is it will depend upon the evidence that the neighbour can produce. If there is no evidence other than a fallen tree the neighbour is going to have to do better than that; if there is a long string of correspondence between the two parties, photos and a clear record of what roots were cut they will have the basis of a case.

 

Reality is that whoever is the injured party will claim against their insurance policy and the insurance company may seek recompense if it feels it has a strong case.

 

Few people have the stomach and the extended pockets to allow excursions into court unless necessity forces them to.