Advice needed!

[Doobop]

I wonder if that would extend to access trees on that land. Might be a stretch but I'll have a read.

Great info guys.
Where do you find these quotes and acts?

[Gary Prentice]

Just years of involvement with trees on my part. OSM is just really clever. 

[openspaceman]

3 hours ago, Gary Prentice said:

I wonder if that would extend to access trees on that land. Might be a stretch but I'll have a read.

It does look like you need a court order so guerilla tactics while the neighbour is out looks cheapes but look at 4c:-

 

"(4)Where the court is satisfied on an application under this section that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of this Act to be reasonably necessary for the preservation of the land; and in this subsection “basic preservation works” means any of the following, that is to say—

(a)the maintenance, repair or renewal of any part of a building or other structure comprised in, or situate on, the dominant land;

(b)the clearance, repair or renewal of any drain, sewer, pipe or cable so comprised or situate;

(c)the treatment, cutting back, felling, removal or replacement of any hedge, tree, shrub or other growing thing which is so comprised and which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead;

(d)the filling in, or clearance, of any ditch so comprised;

but this subsection is without prejudice to the generality of the works which may, apart from it, be regarded by the court as reasonably necessary for the preservation of any land."

[TIMON]

Right,@Daltontrees has answered this once or twice, but I can't find the thread.
 
I'm not a great writer, but I'll do my best. 
 
 
Encroaching limbs and roots can never achieve a 'right' to occupy another property by prescription.
(Prescription - the establishment of a claim founded on the basis of a long or indefinite period of interrupted use, encroaching or trespassing limbs and roots) They never achieve Squatters rights!
 
It would be a ridiculous and unreasonable legal position where the trespassed upon, the adjacent landowner' was prevented from resulting to self help to abate the nuisance of encroaching limbs and roots simply because something detrimental might happen to the tree. Afterall, if the tree owner had controlled the growth of the tree, restricting it ot their own property, the neighbour wouldn't have to take action.
 
When it comes to liabilities, it is very dependent on the circumstances as to where they lie. I'll try to address your examples in order.
"the tree becomes unstable with the weight only on one side" I'll take the liberty of amending this to 'becomes immediately unstable', to start with. 
  When things go wrong, liability really boils down to who was at fault or to blame. Did removing all the limbs on one side of the tree cause it to fall over the following day? Then, would a reasonable person have foreseen the result of their actions? Being the knowledgeable and experienced arborist, of course the consequences of your actions were considered! Could the tree owner reasonably, after you've shorn the canopy, taken suitable action to prevent the tree falling over, i.e prunes it to balance the canopy or felled the tree. But, then did he reasonably have time to take action as a responsible person/tree owner would be expected to do?  In these circumstances, the contractor would probably be deemed the negligent if the tree failed very soon after the pruning, as the incident would be considered foreseeable. 
 
So now we're in a position where the trespassed upon can't exercise their right to self abatement for fear of then becoming liable for their actions. One course of action would be to seek a County Court Judgement, to force the tree owner to abate the trespass or nuisance. Bear in mind the nuisance is an 'ordinary nuisance', not a legal nuisance where damage is actually occuring, but the neighbour can't self abate so has no choice other than to seek help from the courts. 
 
Here's where others are going to disagree, but here goes. My opinion is that by forewarning the tree owner of the intent to cut back to the boundary, in the knowledge that to do so could or would cause the tree to become unstable, changes where the liability lays. The tree owner then becomes aware hat the tree might fail after the neighbour has exercised their ability to result to self help. If the owner doesn't' take action to safeguard the tree, then who is to blame and who has become negligent in preventing a foreseeable incident? They can't reasonably hold the neighbour to ransom to prevent them exercising their right to self help, can they? 
 
So my answer is, if you don't give the owner notice to take action and the tree falls as a result of the pruning, the liability falls to the contractor. The failure was foreseeable. But if the owner has a reasonable opportunity to take action, as a reasonable person would, and doesn't then the fault or liability falls at their door.
 
"disease and decay entering into the tree through inter-nodal ‘boundary cuts" Once again, encroaching branches and roots have no right to occupy another's land. If, in exercising the right to result to self help the tree suffers, well to be blunt, tough. If the owner had kept the tree confined to their own land it wouldn't' have had to be badly pruned to abate the trespass. Going further, if the resulting decay caused a failure at a later date the responsibility would fall squarely on the owner. A tree owner, as a reasonable person, is expected inspect their trees to prevent them causing damage or harm to others. Decay is a longer term issue, so even if it is a result of the pruning the owner has sufficient time to take whatever remedial action as is necessary.
 
I'll add the addendum now that I'm an Arb, not a solicitor, posting on this forum hopefully for the benefit of others. Rely on my opinions at your own risk! A bloke on the internet may not be your best defence if you end up in court. [emoji3] 
 
Hope this all makes sense, if it doesn't, ask and I'll try to clarify.
 
 
 
 
 
 
Firstly

Excellent post Gary, thanks for taking the time to give an in-depth answer. [emoji106]

[Gary Prentice]

29 minutes ago, TIMON said:

 

Excellent post Gary, thanks for taking the time to give an in-depth answer.

 

No worries, I enjoyed the process of sitting down and writing it.

[Gary Prentice]

39 minutes ago, openspaceman said:

It does look like you need a court order so guerilla tactics while the neighbour is out looks cheapes but look at 4c:-

 

"(4)Where the court is satisfied on an application under this section that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of this Act to be reasonably necessary for the preservation of the land; and in this subsection “basic preservation works” means any of the following, that is to say—

(a)the maintenance, repair or renewal of any part of a building or other structure comprised in, or situate on, the dominant land;

(b)the clearance, repair or renewal of any drain, sewer, pipe or cable so comprised or situate;

(c)the treatment, cutting back, felling, removal or replacement of any hedge, tree, shrub or other growing thing which is so comprised and which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead;

(d)the filling in, or clearance, of any ditch so comprised;

but this subsection is without prejudice to the generality of the works which may, apart from it, be regarded by the court as reasonably necessary for the preservation of any land."

I'd forgotten about this, we looked at it briefly in college in regard to accessing the far side of a clients hedge. I have no memory of any mention of trees on the neighbours land though. 

 

I dont know, I think it's a stretch to access their tree in preservation of your own land though. 

 

My my memory might be wrong, but I seem to remember the process was that you had a right of entry, subject to sufficient notice and agreement  of the neighbour. If they simply refused access then you had to get the court order. 

 

Useful for the arb arb contractor to know when they really need to access both sides of a clients boundary hedge. 

[Mark Bolam]

I have a few hedges I have given up on after maintaining them for years.

2 carbon extensions on the combi unit trimming tops is fuckering on the shoulders.

I’ve had to say unless we can have access next door for the next time I simply can’t do it.

 

Neighbours are twats aren’t they?

I asked the lad next door and he confirmed this.

 

[Gary Prentice]

confirmed what?

[Stubby]

8 minutes ago, Mark Bolam said:

 

 

Neighbours are twats aren’t they?

I asked the lad next door and he confirmed this.

 

?

[Ratman]

Guessing Marks asked the opposite neighbour next door if the neighbour in question is a twunt or not?! And opposing neighbour has concurred ??‍♂️