Unstable tree

[kevinjohnsonmbe]

3 hours ago, Gary Prentice said:

The local authority/highways authority operate under different legislation where there is a statutory duty to maintain passage, so they can tell you what to do or do it themselves, a different circumstance altogether.

Could I add Gary:

 

If they do-do (!) it themselves, they’ll use either (1) their in house team (2) their ‘arms length’ company (same as their in-house team but masquerading as a seperate company) or (3) a ‘preferred’ contractor - all of which are highly likely to be considerably more costly and (certainly for (1) & (2)) less efficient....

 

Then, they send the tree owner the bill. 

[Gary Prentice]

7 hours ago, kevinjohnsonmbe said:

Could I add Gary:

 

If they do-do (!) it themselves, they’ll use either (1) their in house team (2) their ‘arms length’ company (same as their in-house team but masquerading as a seperate company) or (3) a ‘preferred’ contractor - all of which are highly likely to be considerably more costly and (certainly for (1) & (2)) less efficient....

 

Then, they send the tree owner the bill. 

But only after serving notice on the owner to do the statutory works within 14-28 days. So they don't exactly turn up, do the work, bang on the front door and drive you down to the cashpoint

 

 

I thought I'd covered all the bases in my 6AM post, but you you just had to point out the omission

[Gary Prentice]

7 hours ago, matelot said:

legal letter saying "you can cut the tree down to the boundary but if it falls down we will sue".

On what grounds would you sue? That he'd made the trees unsafe by exercising a common law right? 

 

I wish someone would clarify this, all that I remember reading is that you 'may' be negligent if as a result of your actions something falls over and causes damage. 

It only makes sense to me that negligence arises if you carry out the action without pre-warning of your intentions or the owner being unaware of the change in circumstances, lives elsewhere etc.

 

Not that you have to pre-warn to remove overhanging limbs, that went through the courts a hundred years ago.

 

[Gary Prentice]

11 minutes ago, EdwardC said:

I don't believe you can absolve yourself of your duty of care to act reasonably and avoid foreseeable harm by telling the neighbour you are going to put them at risk of harm and by so doing somehow make the consequences of your actions their fault. 

 

Anyway this was chewed over at some length in an earlier thread, albeit about cutting off roots which could result in the tree falling over.

 

 

And was any conclusive answer reached?

 

Wouldn't notifying of your intention to carry out works on your own land, which you are legally entitled to do, which may or may not lead to the death or failure of a tree on anothers land (which has not been kept on there own land) be reasonable and responsible?

 

If I put supports in your garden for my balcony, would you leave them their in case my balcony collapsed after you cut them down? Could I hold you liable and should you have to tolerate them? 

 

To avoid reasonable harm, notify of your intention to self abatement and suggest expert opinion is sought as to their stability maybe.

[kevinjohnsonmbe]

41 minutes ago, Gary Prentice said:

And was any conclusive answer reached?

 

No, but it was a good debate!!

[daltontrees]

54 minutes ago, EdwardC said:

I don't believe you can absolve yourself of your duty of care to act reasonably and avoid foreseeable harm by telling the neighbour you are going to put them at risk of harm and by so doing somehow make the consequences of your actions their fault. 

 

Anyway this was chewed over at some length in an earlier thread, albeit about cutting off roots which could result in the tree falling over.

 

 

Sorry Edward, I continue to disagree with you on this. Common law does not say that you can't crete a hazard, full stop. The acting reasonably and foreseeing harm, in my view, can be exercised by giving fair warning to the tree owner that the right to self--abatement may leave the tree unstable and allowing then time to take independent advice, anticipate the risk and deal with it in a timely fashion.

 

It is a thoroughly established principle of law that branches and roots can't establish a right to be in someone else's soil or airspace just because that person tolerated it for a while. The roots and branches have never got the right to be there. The tree owner doesn't need to avoid it happening but he does have to accept the consequences of them being removed by the neighbour. Any other answer to this question is (i) a legal absurdity that conflicts with long-established case law (ii) a practical impossibility that society couldn't countenance.

 

Gary's balcony analogy illustrates it well, up to a point. The difference with trees is that we all live in a  world where trees do what they do, and encroach. This differs from the deliberate building of a balcony and supports on someone else's land. If it were a bulding that encroached, the remedy would not be self-abatement, it would be to get a court to declare that the balcony shouldn't be there and that the 'builder' should remove it on pain of contempt of court and the harsh punishments that follow from that. Otherwise it's a good analogy. The principle are the same, the remedy is just a bit different.

 

I have in teh recent past admitted that the tree situation might require a court order for the tree owner to abate rather than the 'warn and then self abate' scenario. I adnmit that because unlike the rest of the logic in this there is no clear precedent, whichj would only be clarified by a case for negligence due to damage or harm caused by a 'warn and then self abate' situation. But the principle remains unassailable (it is not my principle, it is one of  stare decisis). The encroacher can never acquire a right to encroach and must either suffer self-abatement or abate, even if the consequences are subsequent failure of the tree. Like the balcony, the only question is the nature of the remedy. And in turn, that might depend (as I may find time shortly to explain) on whether the encroachment is actionable or not.

 

I implore anyone to explain why the aforegoing is incorrect. Not disagree with me full stop, but explain the logic and the legal standing of that logic. I am willing to be proved wrong and will admit it if I am wrong. But I continue to believe that we all could benefit from clarity and I present the argument for that objective alone.

[daltontrees]

14 minutes ago, kevinjohnsonmbe said:

 

No, but it was a good debate!!

A hypotheses was put forward and awaits challenge. I'll feel like such a twat if I'm wrong, but will accept the correction with humility.

[daltontrees]

To the original poster.

 

General principle is that the owner of the adjacent land can cut back the branches himself without your permission. If the branches are interfering seriously with his use of the land, he could ge the courts to force you to do it or to pay for him to do it. So, he can do it himself at his expense or make you pay for it. Yopu need only agree to do it at your expense if you anticipat ethat you woud lose such a court case. It's a matter of how serious the encroachment of the branches is.

 

If the footpath has been legally transferred to the Council, they could pursue the same remedies, cut them themselves or get the courts to make you do it or make you pay for it.  If the trees are not a nuisance to the use of the footpath, it's hard to see how they woud successfully sue.

 

If the footpath is just adopted by the Council, the land under it and the air above it may still belong to the 'developer, but since he can't do anything with land that has a public footpath on it he probably couldn't demonstrate loss of enjoyment of the land, and so probably couldn't sue.

 

That leaves the question of what happens if the trees are left unstable. As you can see there is disagreement on Arbtalk about this, but my view is that if the developer cuts the branches back without warning you and the trees almost immediately fall over, he would be responsible for compensating for any harm or damage caused. It is also my view that if he warns you of the consequences and gives you a chance to prepare to get rid of the risk after the pruning has been done, the law is on his side.

 

There's still a grey area. He may have to get the courts to tell you to remove a very serious encroachment and declare that the risk is then yours. Or he may be able to prune after warning you, without getting the courts to declare tha the risk is then yours.  Either way, the law's on his side as long as the encroachment is serious.

 

That said, to reiterate it's hard to see how he would have a case for removing the branches over a public footpath, even if he still owns the land tha the adopted path is on.

 

I hope that helps.

[matelot]

2 hours ago, Gary Prentice said:

On what grounds would you sue? That he'd made the trees unsafe by exercising a common law right? 

 

I wish someone would clarify this, all that I remember reading is that you 'may' be negligent if as a result of your actions something falls over and causes damage. 

It only makes sense to me that negligence arises if you carry out the action without pre-warning of your intentions or the owner being unaware of the change in circumstances, lives elsewhere etc.

 

Not that you have to pre-warn to remove overhanging limbs, that went through the courts a hundred years ago.

 

I'm not a lawyer. However I believe a landowner (and his tree surgeon) would owe his neighbour a duty of care if he started cutting overhanging branches. If he left the tree in such a state that it was liable to fall down it could open them up to possible litigation.

 

I think a judge would accept that occasionally trees get blown over. However if someone has left a tree in such a state that it's lop sided and it falls over it's negligence Imho.... 

[kevinjohnsonmbe]

1 hour ago, daltontrees said:

A hypotheses was put forward and awaits challenge. I'll feel like such a twat if I'm wrong, but will accept the correction with humility.

 

On 3 October 2017 at 16:51, kevinjohnsonmbe said:

Leylandii:

 

"...Grows rapidly to 30m in any soil, then blows down..."

 

Johnson & More. (2004.) Tree Guide - The Most Complete Field Tree Guide to the Trees of Britain and Europe. London: Collins

 

Just saying loike....

 

 

I'm sticking with fell - replant with a nice Beech hedge....

 

1 hour ago, daltontrees said:

A hypotheses was put forward and awaits challenge. I'll feel like such a twat if I'm wrong, but will accept the correction with humility.

I'm thinking there'd be more than enough time for a good Malt to finish before that happens....  

2 hours ago, Gary Prentice said:

But only after serving notice on the owner to do the statutory works within 14-28 days. So they don't exactly turn up, do the work, bang on the front door and drive you down to the cashpoint

 

 

I thought I'd covered all the bases in my 6AM post, but you you just had to point out the omission

 Didn't want the OP / tree owner to think they could just leave it for council and be away without cost