Pruning back to boundary - Overhanging STEM

[arbgirl92]

On 25/05/2018 at 16:02, EdwardC said:

Hi Arbgirl92, what's your question.

Obviously legally we can cut back all overhanging branches to the boundary and I assume the same applies to stems where they overhang?

 

Apologies if I hid the question within my babble, I thought the question mark may have made it clear...

[arbgirl92]

Thank you to all that took the time to respond to my question - very helpful.

[Roz]

While the initial question appeared straight forward for those who like something to get their teeth into  - Gary, Jules

 

Trees do not know trespass........you may also be interested in this ref 'actionable nuisance in terms of the statement of 'Common Law Right' that the industry correctly or incorrectly throws around......its a little long ........

 

......comments from the case of Perrin (involving Robin Green) in 2007:

 

34. As a result of these authorities, Mr Green, on behalf of the claimants, submitted that s.198(6)(b) was doing no more than enshrining in statute the common law right of a neighbouring land-owner to remove the branches and roots encroaching above or into his property, even if no actual damage was being caused. He submitted that, effectively, s.198(6)(b) was preserving the common law position even where the tree was covered by a TPO. In this submission he was supported by Mr Charles Mynors, the learned author of The Law of Trees, Forests and Hedgerows (London, Sweet & Maxwell, 2002). At pp.463-470 of his helpful book, Mr Mynors argues that the nuisance identified in s.198(6)(b) does not have to be an actionable nuisance dependant upon damage, but a nuisance in the broader sense of the common law.

 

35. I have reached the conclusion that this argument, although persuasively put by Mr Green in the present case, is incorrect. I conclude that Mr Findlay is right to submit that the reference to “nuisance” in s.198(6)(b) means “actionable nuisance”, where damage has been caused or, if no action is taken to prevent it, will imminently be caused. There are a number of reasons for this conclusion.

 

38. More importantly still, I consider that, as a matter of construction of s.198(6)(b), the reference to nuisance must be taken to be a reference to actionable nuisance (i.e. that damage must have been caused or must be imminently like to be caused) in order to give coherence and effect to s.198(6) as a whole. The other exemptions in s.198(6) will, so it seems to me, arise relatively rarely, and will only operate in limited situations such as a dead or dying tree or a tree which has become a danger to those passing close to it. It can only be consistent with the remainder of s.198(6) to read the reference to nuisance in s.198(6)(b) in that context, as a situation which will not arise on a regular basis. It is common for the tree roots in one garden to encroach onto or into the neighbouring garden, but, fortunately, much rarer for those tree roots to cause damage to the foundations of the neighbouring property. It therefore seems to me to be consistent with s.198(6) as a whole for the reference to “nuisance” to be a reference to “actionable nuisance” (requiring actual or imminent damage), which will arise relatively rarely, and not just “pure encroachment”, which will be much more common.

 

40. Any other interpretation of the word “nuisance” would, so it seems to me, lead to absurd results. It would be completely contrary to the purpose and scheme of these parts of the 1990 Act, if a man could fell his neighbour's tree, despite its protection by a TPO, because one of its branches overhung part of his garden or because some of the roots of the tree ran under his lawn. It would be contrary to the principal purpose of the Act if TPOs were to be of no application in any case of overhanging branches or encroaching roots. Something more must be required in order for the TPO not to apply, something significant and relatively rare, which balances the primary purpose of tree protection with the right of an individual to live in a safe and unthreatened home. Accordingly, for all these reasons, I have concluded that the reference to “nuisance” in s.198(6)(b) must be a reference to “actionable nuisance”.

 

The judge cited support from two other cases.

 

So the owner of the adjoining land must prove actionable nuisance in the sense of an existing or imminent threat to property. Further, they would then have to show that whatever works they were carrying out was necessary.

 

In passing…… falling leaves or twigs is not a nuisance.

[Gary Prentice]

5 minutes ago, Roz said:

While the initial question appeared straight forward for those who like something to get their teeth into  - Gary, Jules

 

Far be it for me to disagree with Mr Mynors, but that section of his book never seemed to make sense. 

 

[Roz]

I guess what it demonstrates is that until such time something is tested in court it is down to interpretation - and that's what the barristers get paid for word play and a battle of BBB's until it may make sense and a ruling is made.  I know Mynors always said that if anyone has a case of a TPO tree being reduced back to the boundary under common law without an application being made to a LPA for teh works and the LPA were going to take legal action he would like to take it on for free as it had never been tested in court.........

 

Sent you a PM ref TPO review and links - don't know if you've picked it up

[arbgirl92]

36 minutes ago, Roz said:

While the initial question appeared straight forward for those who like something to get their teeth into  - Gary, Jules

 

Trees do not know trespass........you may also be interested in this ref 'actionable nuisance in terms of the statement of 'Common Law Right' that the industry correctly or incorrectly throws around......its a little long ........

 

......comments from the case of Perrin (involving Robin Green) in 2007:

......................

The judge cited support from two other cases.

 

So the owner of the adjoining land must prove actionable nuisance in the sense of an existing or imminent threat to property. Further, they would then have to show that whatever works they were carrying out was necessary.

 

In passing…… falling leaves or twigs is not a nuisance.

I appreciate that this was aimed at further discussion than necessarily answering the original question, but as this is related to TPO's and the neighbours tree is not covered by TPO or CA, would the majority agree with me that legally we can cut the stem back to boundary, where it is overhanging?

[Mick Dempsey]

39 minutes ago, arbgirl92 said:

I appreciate that this was aimed at further discussion than necessarily answering the original question, but as this is related to TPO's and the neighbours tree is not covered by TPO or CA, would the majority agree with me that legally we can cut the stem back to boundary, where it is overhanging?

Yes.

[Roz]

As the tree is not afforded any statutory protection then its down to what you are happy with in terms of good practice and if you have spoken to the owners of the tree?

 

Personally i would not want to remove the overhanging stem or leave a large wound - while it may not impact significantly upon the tree as they can be more robust than we give them credit for would you be happy with the result?

 

 If the owners are in agreement then total removal with the offer of a replacement may be a more sympathetic way to go.  Its not a perfect world but only you can really answer your question of do I don't I?

[arbgirl92]

Thanks guys - appreciate the help