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Advice needed!


Doobop
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Are you skint?
Do you really need the job?
If the answer to the above questions is no then walk away.
Ive had jobs like that and its shite.
Not worth the hassle of 2 bellend neighbours who argue over some branches.


No not skint but the whole job is worth a very pretty number [emoji383][emoji383]
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13 hours ago, TIMON said:

 


Hey Gary, What happens if after being side pruned, the tree becomes unstable with the weight only on one side? Or disease and decay entering into the tree through inter-nodal ‘boundary cuts’ Would there be any liability issues on the part of the contractor or would that fall to the owner?

 

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. :D 

 

Hope this all makes sense, if it doesn't, ask and I'll try to clarify.

 

 

 

 

 

 

Firstly

Edited by Gary Prentice
Added text for clarification " if the tree failed very soon after the pruning,"
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Damn good post! That's what I would have thought - due diligence - put the neighbour in the picture, and give them time to sort the problem, six weeks or so. Followed up by a further notification and reminder, and another grace period before work starts. And make the correspondence traceable. And paint the cuts afterwards with something to prevent infection, even if this is only for show - and take photos.

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As an example of how bad these issues can actually become, I'll write about a tree I got involved with a while back.

 

A fellow contacted me after a limb fell from his neighbours tree, landed on his garage roof and then fell on to three cars on he drive. The tree was a Hybrid poplar around seventy foot tall, protected by a TPO, and had in previous years shed a number of limbs and damaged my clients garage, fencing, a car and other articles.

 

The owners are elderly and until recently the neighbour relationship was cordial. Previously, with the agreement of the owners my client had applied for permission and got consent from the LA to reduce the canopy over his property.The work was done at my clients expense. My client repairs a few cars at home, part time, in his large double garage. Two of the cars recently damaged on his drive also belonged to customers.

 

He seems a reasonable fellow, but who really knows. After this last failure, he has approached the owner in an attempt to do something to prevent further accidents. For whatever reason the relationship has broken down, they are threatening solicitors if he touches the tree (with or without La consent).

 

Prior to contacting me a contractor had been contacted about at least pruning some of the overhanging canopy. This contractor had spoken, I'm told, to the TO and had been advised to steer clear of the situation. He bailed out, leaving my client without help, which I personally think is a unenviable position.

 

The tree is late mature and not in perfect structural condition. I identified four or five limbs of significant diameter and length ( 50 +cm diameter and at least 13 m in length) that are over-extended with clear indications of internal structural defects. Fortunately these are all over the owners garden and if/when they fail would probably remain in that garden. I also identified some limbs growing over the client's property that were more prone to failure, being over extended and with some structural issues such as cavities and or being long epicormics/reaction growth resulting from the previous pruning. I suggested an application to deal with all the issues throughout the crown, to reduce the potential for further failures, but the client said that the owners wouldn't are adamant that they will not do anything nor allow anything to be done to the tree.

 

I suggested providing a report on the tree so that all the immediate problems could be addressed and a contractor could access the tree to get to the part over the boundary. But the relationship is now so bad that the owner will not entertain any communication other than through solicitors. I also suggested that by highlighting the branches over the clients property that, in my opinion, have a high failure potential the onus could be pushed towards the owner, in that they were aware of the dangers, did nothing and in the event of a failure and damage to my clients property would have been negligent. Understandably the client didn't want to just wait for another limb to fail.

I submitted an application to address the issues on that part of the canopy over the clients property, including a note that any objection by the the owners to pruning trespassing limbs would be irrelevant and should be disregarded and that he application must be determined only on the affects to the tree and its amenity. The application was determined/consented within two weeks. 

 

My client is still talking to solicitors. I've suggested getting the contractor he appoints to try to talk to the owner to explain how the work that the council have agreed to is necessary in the hope that they can gain access to the tree. Otherwise they're going to need a huge Mewp which will add hundreds to the job. (I don't hold much hope that sense will prevail, but I've done my job in providing the application and getting consent. 

 

Who'd have neighbours?

 

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