Question for the Forestry Boffins!

[Spruce Pirate]

Sadly, I've been in forestry for over twenty years, which means I've seen more than a few brown edges exposed by felling operations and the subsequent blow.

 

Assuming that a felling license was applied for and granted I don't think there is any come back. It is something that should be considered by the FC Conservancy, but I don't think it would necessarily prevent the license being granted. If the woodland was mature and ready for harvesting there is a very good chance that it would have started to blow anyway on both sides of the fence. It would be equally unfair to penalise the owner who felled by making him clear wind-blow because his neighbour didn't want his wood felled. If it is a strip of trees for commercial reasons the owner should be able to harvest when it is most economically practical.

 

Commercial plantations are no different to a field of barley, wheat or any other crop. They shouldn't really be compared to "forests" in an ecological sense, nor should they be compared to urban trees. The three have some similarities, but are all very different beasts.

 

It's a bit late now, but the best solution would have been for the two owners to put their heads together and market the whole parcel. This would decrease the cost of felling, increase the viability by putting more timber on the market and remove the risk of subsequent blow altogether. Sadly many owners are not savvy enough to think this way.

 

Edit:

Also it's not uncommon, certainly here in Scotland, for an owner to fell an edge along their neighbours ground, leaving a brown edge. There may be differences in Scots Law to English Law, but if there was any significant come-back to be had it wouldn't happen. You'd have to ensure you felled to a green edge more than one tree length away from your neighbours ground and hope your timber didn't blow into theirs when you'd finished. They'd then have to do the same thing when they wanted to fell. There'd be wee strips of green up every march between two different land owners.

Edited July 12, 2017 by Spruce Pirate

[flatyre]

Good input Spruce Pirate, I'm still coming to terms with the fact that I could be found guilty for felling trees on my own land. If i'm reading this thread correctly then I may be found guilty of something because by removing trees from my property I risk the trees on a neighbouring property? Say I had a big Conifer on the edge of my property which was robbing my neighbours garden of sunlight, so they ordered me to have it removed. But they had a prize Acer growing in the shadow of it. Once removed the acer will be exposed to damp ground conditions and high winds, and we know what happens to delicate acer leaves in high winds. How are you supposed to win?

[Gary Prentice]

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.

 

What I was thinking, saying that the neighbour IMO had responsibility to safeguard his trees was more along the lines of pruning to wind firm them after the loss of shelter, a reasonable approach by a prudent person?

 

If your neighbours cattle get onto your land it's clear cut. An owner has a responsibility for something on his land not effecting others. Yew hedge comes to mind. If it escapes over the boundary and gets eaten, then it's the hedge owners fault, but if a horse leans over the fence to eat it, then because the hedge owner has kept it on his land it isn't his fault.

[County 764]

There's no come back unless they felled without a felling licence and you'll find that out on the Forestry Commissions website (type in LIS)

 

In Scotland if the felled area is to be fenced of for restocking the boundary fencing costs will be split 50/50. If the trees were to fall onto the fence and damage it then that would be the owner of the trees who would liable cover costs of repairs.

[Peasgood]

If they were my trees that had been felled I'd be thinking I was owed something for sheltering my neighbours trees for all these years.

[daltontrees]

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.

 

 

We all went over this recently in a thread, and what the outcome wst as I recall was that you believed this, but neither you nor anyone else who was sympathetic your view had any response to the impossible logical and legal cosequences of it. Or put it another way, if push came to shove I still say the law cannot support your believed position.

 

The scenario was about root pruning, but this current scenario has the same underlying principle namely - the remaining tree owner has not acquired over time by statute, common law or prescription a legally enforceable right of companion shelter from the owner of the now felled trees. And like our root pruning scenario, the preposterous consequences of any such acquired right would be to prevent one owner felling his trees because he felt he had to shelter his neighbour's trees. As Peasgood says, if there was a right of shelter maybe the tree owner owes something for all those years of shelter. But of course he doesn't, it's a legally preposterous construct. Gary Prentice's roof blowing off scenario illustrates this. And so flatyre and everyone else can rest easy every time a tree is removed or pruned (or a building demolished or a fence removed), and then a branch snaps or a tile comes off a roof on adjacent land. The world would grind to a standstill if there was express or implied prescriptive rights of shelter.

 

I believe the guy who has felled his trees had every right to do so, even if he knew the consequences would be increased chance of windthrow of the neighbouring trees. And unlike the root pruning scenario, he possibly didn't even have a duty to warn. One doesn't have to pick up Mynors, it is common sense and common law, the two are one here. There may be forestry legislation exceptions, but they would be exceptions rather than reinforcement of common law. I know of no such exceptions.

 

In these scenarios, Spruce Pirate's 'green strips' are the answer, and ideally separate harvesting dates could have been anticipated and a gap left on the boundary to develop windfirm edges.

 

I am sorry to be so blunt, but I feel duty-bound to offer this alternative to your belief. But just to be clear, even though I have been on Arbtalk for 5 years it doesn't mean that I now owe a prescriptive duty of care to other Arbtalkers.

[Gary Prentice]

I am in agreement with Mr Prentice :

 

Mr? No need to be so formal, call me Gary:biggrin:

[kevinjohnsonmbe]

We all went over this recently in a thread, and what the outcome wst as I recall was that you believed this, but neither you nor anyone else who was sympathetic your view had any response to the impossible logical and legal cosequences of it. Or put it another way, if push came to shove I still say the law cannot support your believed position.

 

The scenario was about root pruning, but this current scenario has the same underlying principle namely - the remaining tree owner has not acquired over time by statute, common law or prescription a legally enforceable right of companion shelter from the owner of the now felled trees. And like our root pruning scenario, the preposterous consequences of any such acquired right would be to prevent one owner felling his trees because he felt he had to shelter his neighbour's trees. As Peasgood says, if there was a right of shelter maybe the tree owner owes something for all those years of shelter. But of course he doesn't, it's a legally preposterous construct. Gary Prentice's roof blowing off scenario illustrates this. And so flatyre and everyone else can rest easy every time a tree is removed or pruned (or a building demolished or a fence removed), and then a branch snaps or a tile comes off a roof on adjacent land. The world would grind to a standstill if there was express or implied prescriptive rights of shelter.

 

I believe the guy who has felled his trees had every right to do so, even if he knew the consequences would be increased chance of windthrow of the neighbouring trees. And unlike the root pruning scenario, he possibly didn't even have a duty to warn. One doesn't have to pick up Mynors, it is common sense and common law, the two are one here. There may be forestry legislation exceptions, but they would be exceptions rather than reinforcement of common law. I know of no such exceptions.

 

In these scenarios, Spruce Pirate's 'green strips' are the answer, and ideally separate harvesting dates could have been anticipated and a gap left on the boundary to develop windfirm edges.

 

I am sorry to be so blunt, but I feel duty-bound to offer this alternative to your belief. But just to be clear, even though I have been on Arbtalk for 5 years it doesn't mean that I now owe a prescriptive duty of care to other Arbtalkers.

 

 

😂😂

 

👍🏻

 

I did have in mind the previous thread when starting this question and kind of anticipated it might be back referenced!!

 

I'm not overly confidant that the people involved in this scenario would be keen enough to progress it to a point that might give us some definitive answers ☹️

[Gary Prentice]

 

I am sorry to be so blunt, but I feel duty-bound to offer this alternative to your belief. But just to be clear, even though I have been on Arbtalk for 5 years it doesn't mean that I now owe a prescriptive duty of care to other Arbtalkers.

 

Think you'd have to have been doing it for 20yrs ( and the individual have been taking/using it) before they had a claim anyway:001_tongue:

[daltontrees]

we all have rights, and we all have responsibilities to others. It is not black and white, or my rights take precedence over your rights because I don't have any responsibility. It's all manner of shades of grey. How the competing rights and responsibilities of the land owner and neighbours are weighed is , eventually, for the Courts to determine.

 

Wouldn't this be taking a responsible course of action. Such a course of action may arise as a result of discussion. But the tree owner does not have to liaise with the neighbours. What they have to do is act in a reasonable way to avoid foreseeable harm.

 

Mynors does raise the issue of competing rights and responsibilities.

 

All noted. Nothing is ever completely clear, But I would invite anyone to subject themselves to this little test. Say in Kevins scenario, there are two parties A and B owning each half of a plantation. You are the consultant appointed by A to advise on harvesting. You know that harvesting will probably result in windthrow of some of B's trees. B is asked if he wants to harvest simultaneously, but he definitively does not in the foreseeable future.

 

Question 1 - Do you advise A that (a) he must forget about harvesting and should only do it when B wants to too (b) he should harvest but must expect to compensate B for any windthrown trees and/or be up in court on a civil action of negligence © he should harvest, and give B plenty of warning that it might result in some windthrow?

Question 2 - regardless of which of these options you choose to advise A, A questions the advice an asks how you arrived at it. Do you say (a) I don't know, only the courts will tell if I am right (b) I don't know, take legal advice or © this is a commonplace enough scenario for me to be confident in my advice to you?

 

I'm a (c,c) man, and my clients so far like my decisive and firm advice. It may, of course, be wrong.

 

On a less day-to-day basis, I was musing today that windthrow of a neighbour's trees is the action of the wind, not of the landowner who decides to fell. Now, if A stored up all the wind on his land and released it all at once to flatten B's trees, that would be wrong. But he is only allowing the wind to pass from another's airspace, through his airspace, and onto B's airspace. This is not a Rylands v Fletcher type of failure to contain something on land or the carelessness of Goldman v Hargreaves. Nor is it a legal instead of literal neighbour relationship of Donoghue v Stevenson. I cannot see that society's need for workable jurisprudence would be served by preventing a man from using his land for the very purpose it is devoted to, viz forestry. This to me is even clearer cut (no pun intended) than the root pruning scenario. We all have as you say rights and responsibilities, but B has not acquired the right to force A to contain the wind. One canute do that, and I believe the law knows it.

 

The 'green strips' course of action would have to have been taken when the trees were very young, as it is the very objective of forestry to grow tall branch-free trees in the full knowledge that they wouldn't grow like that in nature and survive.