Question for the Forestry Boffins!

[kevinjohnsonmbe]

Where's TCD when you need him.....?

 

Chatting with a neighbour this morning. Something of a typical rambling, general conversation which brought us eventually to the subject of strip of plantation forest which was straddling the boundary and fell within the ownership of the person I was talking to and his neighbour.

 

It seems that, originally, the linear planting scheme had been executed in the wrong location due to a mapping error which meant it was the wrong side of a boundary fence when originally planted.

 

The owner at the time didn't mind (no surprise) and didn't require it to be removed.

 

The correct planting scheme was then implemented the other side of the boundary fence - net result, double the intended area of plantation with equal areas either side of the boundary between the 2 neighbouring land owners and a boundary fence running right through the middle.

 

So, one neighbour has recently had his area of the plantation clear felled.

 

The obvious result is that the pre-existing boundary fence which previously formed the centre line of the whole plantation now forms the edge of the plantation that remains. All of the remaining trees - those that were previously in the centre of the plantation and significantly sheltered by the opposite half - now form the outside edge with all the prevailing weather.

 

You'll have guessed where this is going....

 

Trees that were in the centre of the plantation have not acclimatised to prevailing weather and are being bashed over by the wind in significant numbers.

 

So the question - does the landowner that has clear felled, and adversely affected by his actions or omissions the status / value of the remaining trees in separate ownership, owe a duty of care to the landowner that hasn't?

 

If yes, would it be reasonable to expect that the difference in value / cost of extraction of the windblown area, as compared to if it was valued as standing timber without obstruction / complication be a reasonable basis for estimating the "loss / harm / damage" incurred by the the land owner that hasn't clear felled?

 

I should imagine this wouldn't be a unique or particularly uncommon scenario in commercial forestry but it's not something I've ever considered.

 

Any advice or opinions from forest dwellers most welcome - (insults, ridicule, humour and sarcasm equally welcome if it serves to brighten our day!)

[Andy Clark]

A very quick scour of Mynors doesn't throw up any glaring obvious case law to reference....

 

Personally I think in terms of DoC it would depend on several factors - such as size of trees, consequence of failure/foreseeable risk of harm or damage etc, benchmarked against the opposing AFARP in correspondence to those factors. i.e, did the neighbour act "reasonably". That magical word. lol

 

If we're talking 6" dia. 20' tall saplings, then it could be assumed that foreseeable consequence was low, and so the DoC owed by the neighbour would be equally low. A quick "Oh, I'm cutting my trees down next week" word of warning would likely be enough to discharge that Duty.

 

18" dia. 50/60' tall, then the foreseeability of consequence would be higher, and so would the corresponding Duty owed by the neighbour. Letters, notice period, reasonable consultation etc.

 

In the absence of any particular case law I think the obvious benchmark would be similar to that of a neighbour exercising their self-help right to prune an overhanging tree. Yes you can do it, but equally you may be liable for any damage resulting from your actions.

 

Has the neighbour acted reasonably? Was there any consultation? Did the neighbour put the owner on notice? Has there been a material loss? These are the kind of questions that I think would determine any liability.

[kevinjohnsonmbe]

A very quick scour of Mynors doesn't throw up any glaring obvious case law to reference....

 

Personally I think in terms of DoC it would depend on several factors - such as size of trees, consequence of failure/foreseeable risk of harm or damage etc, benchmarked against the opposing AFARP in correspondence to those factors. i.e, did the neighbour act "reasonably". That magical word. lol

 

If we're talking 6" dia. 20' tall saplings, then it could be assumed that foreseeable consequence was low, and so the DoC owed by the neighbour would be equally low. A quick "Oh, I'm cutting my trees down next week" word of warning would likely be enough to discharge that Duty.

 

18" dia. 50/60' tall, then the foreseeability of consequence would be higher, and so would the corresponding Duty owed by the neighbour. Letters, notice period, reasonable consultation etc.

 

In the absence of any particular case law I think the obvious benchmark would be similar to that of a neighbour exercising their self-help right to prune an overhanging tree. Yes you can do it, but equally you may be liable for any damage resulting from your actions.

 

Has the neighbour acted reasonably? Was there any consultation? Did the neighbour put the owner on notice? Has there been a material loss? These are the kind of questions that I think would determine any liability.

 

Just done a Mynors check too Andy....

 

13.6.2 p343 Duty of Care and 13.7.4 p358 Criminal Damage may have some relevance and need a more leisurely read this evening.

 

Was hoping some one from the forest might have experienced something similar or know of a best practice type scenario - I was thinking it would be "reasonable" to leave a belt of your own trees to act as the wind break rather than exposing your neighbour's to the direct forces of nature??

 

Mature cash crop forestry timber is the impression I got although detail was somewhat sketchy!

[Tom D]

This should have been considered by the FC on the felling licence application.

[kevinjohnsonmbe]

I'm not so far into it yet Tom as to have asked the question "if" a FL was obtained for the clear fell.

 

There was another part I read in Mynors which suggested a defence could be mounted by presenting the authorising document from a licensing authority (who, as you say, should have considered consequential effect on habitat, environment etc prior to issuing approval.)

 

It's not at all uncommon for land owners to plead ignorance of the Forestry Act hereabouts and, frankly, enforcement action after the event is pretty woeful.

[spuddog0507]

This should have been considered b y the FC on the felling licence application.

 

Totally agree FC should have taken this into account before felling licence was granted, I can't say what I want to say on here, but the FC are not the easiest organisation to deal with .

[Gary Prentice]

I think this has been discussed before and someone more knowledgeable than me said there was nothing to prevent this situation.

 

Would you be responsible if you removed a tree that sheltered your neighbours house, which then lost its roof in a gale?

 

Maybe my view is too simplistic, but how far do you have to put yourself out to assist your neighbour and does the law expect you too? Is it reasonable that the neighbour, being aware of the change in circumstances, takes action to protect himself?

[Andy Clark]

I'd agree. It's my belief that you cannot discharge your duty of care by telling your neighbour you are going to put them or their property at risk of foreseeable harm so that when that harm comes to pass as a consequence of your actions you can turn round and say, well I told you so.

 

No.

 

With whom and to what end.

 

On notice for...

 

Clearly

 

Nothing like being quoted in context eh?

 

I think I was pretty clear in the preceding text in my post to the bits that you've quoted that I was pointing out there were factors/variables that would need to be taken into account which would determine the answers to Kevins question in his OP - which was that did the neighbour have a DoC, and if yes could they be liable for recompense.

 

Obviously we NOW know that we're talking about mature crop with potentially a significant value, but that is not something that we knew from the OP...

 

Irrespective of that, to come back to your comments....

 

Has the neighbour acted reasonably?

 

No. We still don't know that, because we haven't determined what, if any, steps the neighbour took to avoid the consequence.

 

Was there any consultation

 

With whom and to what end. From the neighbour to the aggrieved landowner. There is a world of difference between the neighbour rocking up one day and felling all without due thought, to the neighbour discussing his/her plan with the landowner to reach a position that suited both parties. For example the landowner may have sought his own professional advice - which may have highlighted the possible dominos once the exposure had changed. The landowner may have simply objected to the felling completely, to the point that he could have sought an injunction in the Courts to stop the felling from happening. Or they could have discussed and reached a compromise to fell in compartments over a course of several years...... various scenarios.

 

Without consultation though, none of these things were given the chance to take place. With consultation, these things could have been pursued and the outcome could have been very very different.

 

Did the neighbour put the owner on notice?

 

On notice for... see above.

 

Has there been a material loss?

 

Clearly. Yes, we know that now.

 

 

In the absence of any case law from the forestry boys (and notwithstanding FL issues), the underlying principles really still remain the same.... the neighbour has the right to do as he pleases with his land, but in doing so were the steps that he took proportional and AFARP to avoid any foreseeable consequence?

 

Not something we've been able to determine yet, as there is still lots unknown.

 

In terms of Criminal Damage, I think that would be very tough to establish as you'd potentially need to demonstrate mens rea that the neighbour intended to harm the remaining plantation.

 

On face value this seems more likely the case that the neighbour had pound signs in his eyes which may have gotten in the way of any thought of consequence for the remaining plantation.

[Andy Clark]

I think this has been discussed before and someone more knowledgeable than me said there was nothing to prevent this situation.

 

Would you be responsible if you removed a tree that sheltered your neighbours house, which then lost its roof in a gale?

 

Maybe my view is too simplistic, but how far do you have to put yourself out to assist your neighbour and does the law expect you too? Is it reasonable that the neighbour, being aware of the change in circumstances, takes action to protect himself?

 

Yes and no....

 

Rylands v Fletcher is probably the most suitable case for this sort of thing, but think of it in terms of cattle.....

 

We own neighbouring farms, and you want to graze cattle on a field next to my corn crop. Its not my job to keep your cows on your land. Its your job to make sure your cows stay on your land.

 

That doesn't mean though that I cant also take steps to keep your cows off my land if I feel it necessary too, but my "right" to self help does not supersede or nullify your "responsibility".

 

And that's often the confusion of the principle.... that the "Rights" of one person does not invalidate the "Responsibility" of another.

Edited July 12, 2017 by Andy Clark
Typo

[flatyre]

I think this has been discussed before and someone more knowledgeable than me said there was nothing to prevent this situation.

 

Would you be responsible if you removed a tree that sheltered your neighbours house, which then lost its roof in a gale?

 

Maybe my view is too simplistic, but how far do you have to put yourself out to assist your neighbour and does the law expect you too? Is it reasonable that the neighbour, being aware of the change in circumstances, takes action to protect himself?

 

I have no input that could possible answer the questions as quite frankly I have no idea what any of the abbreviations mean, so from that point of view I am in agreement with Mr Prentice here, due to government cutbacks (no pun intended) would this not fall so far down the councils/relevant authority's list of priorities that any wind damage to the neighbours trees be written off as an act of God. Surely there are more pressing issues in this country than some guy removing trees from his own property? I'd like to think that's how the relevant authorities would see it, as Mr P said every tree we remove/reduce produces more risk to neighbouring trees, if so we're guilty of aiding criminal damage every other day. How is this sort of thing measured and weighed? Say you had a big old tree bordering your neighbours property, its getting on and will come down some day damaging their property, you may be guilty of negligence if you don't address the situation, so you get it cut down. Now you leave the neighbours property at risk because you just removed a tree that was shielding their property! Surely anything on their property should be able to withstand nature without relying on a neighbour to defend them, especially something like trees which have a limited lifespan? As stated I know nothing about these matters but this has my attention as if this is the case then every tree I'm responsible for removing could land me in court:confused1: