Seeking advise from LA tree officers

[arbgirl92]

Hi all,

 

So I work as a tree officer for a large housing association. We own a lot of open spaces, including parks, canals and trees near housing. A lot of the enquiries I get through come from residents with trees near their properties. Recently I have had a number of complaints relating to trees damaging hard surfaces - in particular block paved driveways, patios etc. Usually it is quite clear that it is the roots of our trees causing the issues.

 

My question is... how do local authority tree officers respond to such enquiries/complaints?

 

(Obviously each situation is assessed individually based on merits of the tree etc) but for example, lets say theres a line of leylandi on the boundary of our property, acting as screening between a large block of flats and some private housing on a neighbouring street. Neighbouring homeowner calls to complain that the leylandi are lifting the block paving in her garden. You go to assess, clearly it is leylandi tree roots causing the issue... Would a LA agree to repair the damage to the paving? In this particular situation I believe it would have a knock on effect where other neighbours would expect us to repair their paving too (felling the trees wouldnt be an option as they act as screening, and in my mind, the trees are more valuable than the block paving, but obviously the homeowner would disagree).

 

Are we, as the owners of the trees, liable for minor damage such as lifting block paving? It may seem like an easy fix to just repair the paving, but this would end up being a massive cost if neighbours followed suit to put in similar complaints and requests for repair...

 

(Sorry for babbling on!)

 

Appreciate your responses in advance.

 

R

 

 

Edited September 17, 2018 by arbgirl92

[AA Teccie (Paul)]

28 minutes ago, arbgirl92 said:

 

 

Are we, as the owners of the trees, liable for minor damage such as lifting block paving?
 

 

 

Yes, legally, and simplistically...and you would be expected to abate the nuisance and repair the damage / compensate the land owner.

 

Could you try a "hearts n minds" approach and propose a compromise in terms of flexible resurfacing.

 

Regards,

Paul

 

PS Replied as former TO.

Edited September 17, 2018 by AA Teccie (Paul)
forgot a clarifying line

[arbgirl92]

Thanks for the reply Paul.

 

Your response does concern me a little though as if we were required to abate every such nuisance I dont think we would have any trees left except for in the parks!

 

As per the example I used in the original post, would a LA really respond by removing the tree group and repairing the paving? We'd have no trees left in our built up areas!

 

Any sort of resurfacing, be it better for the retained trees or not, would end up as a huge cost as there would definitely be a knock on effect...

 

 

 

I guess I just despair that I only seem to come in contact with members of the public that view trees as just an annoyance...

 

 

[daltontrees]

24 minutes ago, AA Teccie (Paul) said:

Yes, legally, and simplistically...and you would be expected to abate the nuisance and repair the damage / compensate the land owner.

 

Could you try a "hearts n minds" approach and propose a compromise in terms of flexible resurfacing.

 

Regards,

Paul

 

PS Replied as former TO.

Paul, I think that's oversimplistic. The law recognises the dilemma that if tree owners were responsible for the encroachment and minor difficulties caused by tree roots and branches we would live in a treeless world. The courts have been reasonably consistent over the last century in setting a threshold below which damage and encroachment is not 'actionable' i.e. self-abatement is a remedy to the affected landowner but the courts would only order payment of damages and/or abatement if the encroachment constitutes a legal nuisance and is sufficiently serious.

 

The modern take on the law is set out in Network Rail v Williams and Waistell. Worth a look for many reasons but it includes a suggestion by the Master of the Rolls that the requirement for damage in an action as stated in Lemmon v Webb over 100 years ago is 'obiter', which in this situation means 'wrong'.

 

arbgirl92, I'm not a TO.

[daltontrees]

O what the heck, here's the whole relevant section form the Network Rail case.

I would summarise as follows the present principles of the cause of action of nuisance.

First, a private nuisance is a violation of real property rights.  That means that it involves either an interference with the legal rights of an owner of land, including a legal interest in land such as an easement and a profit à prendre***, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession:  Hunter v Canary Wharf Ltd [1997] AC 655, 687G—688E (Lord Goff citing F.H. Newark, ‘The Boundaries of nuisance’ (1949) 65 LQR 480),  696B (Lord Lloyd), 706B, 707C (Lord Hoffmann) and  723D-E (Lord Hope).  It has been described as a property tort: D. Nolan, ‘‘A Tort Against Land’: Private Nuisance as a Property Tort’ in D. Nolan and A. Robertson, Rights and Private Law (Hart Publishing 2012).

Secondly, although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them.  In Hunter at 695C, for example, Lord Lloyd said that nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.  The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law.

Thirdly, the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance because nuisance is derived from the old form of action on the case must be treated with considerable caution.  As to the proposition, see, for example, Lemmon v Webb [1894] 3 Ch 1, 11, 21, 24; Davey v Harrow Corporation [1958] 1 QB 60, 71; Hunter at 695D; and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, [15] and [33].  It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one.  In particular, interference with an easement or a profit à prendre is actionable as a nuisance without the need to prove specific damage: Harrop v Hurst (1868-69) LR 4 Ex 43, 46-47, 48; Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, 349-350. Furthermore, in the case of an artificial object protruding into a claimant’s property from the neighbouring land, Mr David Hart QC, for NR, accepted that the claimant has a cause of action in nuisance without proof of damage. Although McNair J said in Kelsen v Imperial Tobacco Co [1957] 2 QB 334 that an advertising sign erected by the defendant which projected into the airspace above the plaintiff’s shop was a trespass and was not capable of constituting a nuisance, he so held without any reference to the previous authority to the contrary in Baten’s Case (1610) 9 Co Rep 53b and Fay v Prentice (1845) 1 CB 828 and so Kelsen must be considered per incuriam in relation to that issue. So far as concerns such nuisance from encroachment by an artificial object, the better view may actually be that damage is formally required but damage is always presumed: Baten’s Case; Fay v Prentice at 841. That, in itself, shows both the artificiality and elasticity of any requirement of damage for the purpose of establishing nuisance. 

It is also well established that, in the case of nuisance through interference with the amenity of the claimant’s land, physical damage is not necessary to complete the cause of action.  To paraphrase Lord Lloyd’s observations in Hunter at 696C, in relation to his third category, loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, such as may directly follow from, and reflect, loss caused by tangible physical damage to the land, but damages may nevertheless be awarded for loss of the land’s intangible amenity value.  Reflecting the fact that the cause of action is one for interference with property rights, loss of amenity value and the right to claim damages for it does not turn on any exceptional sensitivity or insensitivity of the person entitled to exclusive possession: Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455 at [36].  What is relevant is the objective effect on the amenity value of the land itself, and it is that effect which satisfies any requirement there may be to show damage. Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance.

Fourthly, nuisance may be caused by inaction or omission as well as by some positive activity.  An occupier will be liable for continuing a nuisance created by another person if, with knowledge or presumed knowledge of its existence, he or she fails to take reasonable means to bring it to an end when they had ample time to do so:  Sedleigh-Denfield v O’Callaghan [1940] AC 880, 894.  An occupier will also be liable if he or she fails to act with reasonable prudence to remove a hazard, whether natural or man-made, on their land of which he or she was aware and where it was foreseeable that it would risk damaging their neighbour’s land and goes on to do so:  Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust For Places of Historic Interest or Natural Beauty [1980] QB 485.

[JM this last sentence appears to me to be liability in negligence rather than nuisance]

Finally, the broad unifying principle in this area of the law is reasonableness between neighbours (real or figurative):  Delaware Mansions at [29] and [34].

 

You'd need to read the whole thing to see how it pans out in practice. It's a Japanese Knotweed case, but the court seems to have gone out of its way to state the generalities of the law too, and much of this relates to trees.

[daltontrees]

Ahh, I meant to add, this should become the go-to case for decisions about whether the 'nuisance' exemption for TPO or CA trees is being exercised correctly.

[arbgirl92]

Thanks Julian, I've seen your posts on here and uktc, TO or not, it is clear you have a lot of experience and knowledge so I very much appreciate the response... lots of reading for me now

 

Still looking for responses from TOs though as to how they deal with these sorts of cases day to day!

[AA Teccie (Paul)]

47 minutes ago, arbgirl92 said:

Still looking for responses from TOs though as to how they deal with these sorts of cases day to day!

Perhaps try UKTC too as many LA TOs post there.

[arbgirl92]

Thanks guys, appreciate your help!

[daltontrees]

18 hours ago, EdwardC said:

Your trees can't be a nuisance to you, so  it follows that as there is no nuisance to you, you can't abate the nuisance. However, it would make sense to do something to prevent the damage getting worse. This is particularly important to note if the trees are protected.

You've lost me there. Surly it's open to a tree owner to chop an encroaching root at the boundary so as to arrest or prevent the nuisance on adjacent land? It only becomes more complicated if there's a TPO and the abatement has to be justified as 'necessary' so as to take advantage of the 'nuisance' exclusion, and thus there is an obligation to consider alternative solutions.