Trespass and nuisance roots, severance and liability

[DanR]

Hi, 

 

I have a question relating to a neighbour dispute where the roots of a neighbouring mature Cherry Tree have crossed the boundary line and are causing trespass and nuisance. The tree itself is under a meter from the boundary line, a large root in direct contact with a sewage system, is in decline and has Ganoderma. The tree owners have been notified and the affected neighbours have had an application to sever along the boundary line approved by the council (they are in a conservation area). It seems that according to common law the roots can be cut back to the boundary line, however there is suggestion that if such actions result in the tree's instability or potential hastened decline/failure, the affected neighbour could be held liable? The owners of the tree will have been informed in good time of the intention to sever in order that they have time to seek independent advice to mitigate any structural instability.

 

Is the affected neighbour more at risk for severing the roots or does the tree owner have a responsibility to mitigate the severance irrespective of impact to the tree having been made aware prior?

 

Dialogue between the neighbours has been exhausted and unsuccessful thus far. 

 

Thanks

[daltontrees]

The tree owner NEVER gains a right to have roots or branches in a neighbour's  soil or airspace. You are correct the roots and branches can be cut back to the boundary with impunity. You are also correct to foresee possible failure of the tree and to give the tree owner fair warning to foresee it too and to prepare for the possibility of it after pruning.

 

The law expects reasonable behaviour. Without warning the tree owner, the tree could fail after pruning and either harm or damage the tree owner's property or the neighbour's. In the former case the pruner would be liable. In the latter case the tree owner would have a  defence against negligence. Giving warning removes both these liabilities and defences.

 

As for the tree declining after pruning, well what right does the tree owner have to take the neighbour's soil nutrients, water and light and to have a tree's viability depend on these? None. The law on this has been clear for centuries.

 

If I was you I'd steer clear of using 'nuisance' or 'trespass', as they can be highly contentious terms. Trees do not trespass, they encroach. Nuisance is more than encroachment, and is not the same as annoyance.

[Khriss]

All of the above. Plus, did you buy this property recently?   K

[DanR]

Thank you Julian and Khriss. To say that the points of view so far on this topic have been unclear is an understatement.

 

This is very helpful thanks again.  

 

To add some further context, with respect to length of time at the property, the house was purchased 3 years ago. Last year, a council owned 2.5t horse chestnut that was decayed, unfortunately failed and fell on to the driveway crushing the car and damaging the driveway. The council admitted liability and the matter was settled. A year later driveway renovations commenced. During excavation, the encroaching roots of next doors Cherry became visible and their direct contact with the sewage structure also clear hence "nuisance" (one root 150mm in diameter). The tree is approx. 30 years old and has a root radius of over 8.5 meters on the neighbours side. That matter was raised with the tree owners as well as preliminary opinions from 3 independent Arb Consultants from the Arb Association. They advised that Cherry's have expansive and high sitting root systems and their suggestions was that the most sensible consideration would be to remove and replant a semi mature tree, a little further away from the boundary line and with a root protection barrier. An offer to contribute to the cost of removing and replanting was put forward to the tree owners along with the consultants emails in order to try and reach an amicable solution. The offer was rejected. The services of one of the consultants was subsequently acquired to formally assess the tree. At this point, the tree's heavy pruning regime evidenced by poor pruning stubs and Ganoderma (visible fruiting bracket) were observed. It was categorised as a C. 

 

Following this, a Section 211 application to sever the roots along the boundary line was submitted to the council and tree owners informed of the intention to sever and advised to seek their own independent advice in order to mitigate any possible structural instability. The council subsequently approved the application and tree owners informed again of intention to sever with a date set a few weeks down the line (ensuring sufficient time to seek advice). A consultant for the tree owners did subsequently attend.

 

The time will shortly come to sever the encroaching roots, however to the question in my first post, the challenge with the common law right to sever vs causing "possible" harm to a declining tree if it fails or falls, still seems to be an answer that many are unclear on in terms of liability and on which side it sits.

 

Thanks

Dan

 

 

[Khriss]

Hmmmm bit of a knife edge here. Tree is demonstrably in decline ( evident fungal decay) as ' the tree owner' i would goodwill gesture 100 quid whilst 'your contractor' removed tree. However this aint the case i am surmising. If you cut roots to boundary  for yr repairs / renovation ( defendable on a declining tree - it aint specimen tree after all) subsequent damage to health of tree would be hard to prove.  

Difficult .  K

[kevinjohnsonmbe]

1 hour ago, DanR said:

 ...the encroaching roots of next doors Cherry became visible and their direct contact with the sewage structure also clear hence "nuisance" (one root 150mm in diameter).

 

Neither the presence of the roots nor the fact that they may have been in direct contact necessarily, automatically, equates to nuisance.  Yes they are encroaching but are they actually causing a nuisance such as pipe penetration, lifting of clogging internally for example?  

 

 preliminary opinions from 3 independent Arb Consultants from the Arb Association.

 

You got 3 separate people to visit and provide free advice?   

 

Following this, a Section 211 application (notice rather than application) to sever the roots along the boundary line was submitted to the council

 

The council subsequently approved (acknowledged) the application (notice) and tree owners informed again of intention to sever with a date set a few weeks down the line (ensuring sufficient time to seek advice). A consultant for the tree owners did subsequently attend.

 

The time will shortly come to sever the encroaching roots, however to the question in my first post, the challenge with the common law right to sever vs causing "possible" harm to a declining tree if it fails or falls, still seems to be an answer that many are unclear on in terms of liability and on which side it sits.  

 

Thanks

Dan

 

 

 

[DanR]

Hi Kevin, 

 

Thank you for reviewing. To answer the questions and observations please see as follows:

 

There is the large root in direct contact with the sewage system and there were roots that made their way inside and in cracks between the concrete internally. We believe it is foreseeable that problems will arise in future if the roots are unabated. 

 

We also had a front pillar to the house that was leaning and believed to be due to roots beneath causing ground movement. The pillar is no longer there as was removed during part of the remedial works. We have photos and shared with the consultants. 

 

Re the consultants themselves, the did not visit in person, however I provided detailed videos and photos in order to understand their preliminary view. They were willing to do so for free, and objectively as I requested when emailing them. The intention was to simply better understand the situation we were in and any advice on the best course of action by accredited specialists. They gave willingly and they did clarify that it could only be advice based visuals and not an in person visit. That was totally fine and fair at the time so that we could openly discuss with the tree owners and hopefully find an amicable solution.

 

Thank you for clarifying that the notice provided to the council was an acknowledgment and not approval. They raised no objection. 

 

Dan

Edited September 28, 2020 by DanR
typo

[Paddy1000111]

If the tree is in decline then I wouldn't necessarily be too concerned with killing it off, especially if you do the work during it's dormant phase (as the trees permanent roots will be there but a lot of the feeder roots will have died back as they only live a year or two) My main worry would be severing all the roots and creating an uprooting risk. Cherry trees are very shallow rooting and if you cut all the roots out on one side then the tree could fall in the neighbours direction and you could be left liable for that for creating a dangerous tree. 

[DanR]

Hi Paddy, 

 

Thanks for the feedback. The tree is only 5-6 meters high and has had a heavy pruning regime over the years. If the owners are made aware of the intention to sever and given ample time to ensure structural stability, the question still remains....are they required to mitigate the possible instability or can simply ignore on the basis that if it falls they can simply pursue damages...

 

Best

Dan

[Paddy1000111]

That is something I can't answer for you I'm afraid. From my point of view I would say that the pruning/root trimming law says that you can't prune or cut in a way that makes the tree dangerous. So I guess in terms of the law it is on you and you can't really forewarn them that you are going to make the tree dangerous and it's their problem to deal with it... If the tree has had a heavy prune it won't survive anyway. Cherry and plum trees really don't like being heavily pruned in my experience. 

 

On the other hand. The boundary law also stipulates that whilst you can't ask the tree owner to come and clear up their branches and windfall leaves for you, if the tree causes damage to a property such as damaging guttering (or in your case damaging sewer pipes) it is down to the tree owner to pay for any damages/repair fees associated with that damage. I would discuss it politely with the neighbour and nicely mention that it is encroaching your sewer system and is going to be causing damage in the near future and according to the law it will come down to him to pay for the repairs. 

 

Personally, knowing that the bill will be theirs anyway I would just leave it. You're putting yourself in liability and out of pocket to prevent a repair bill that will be theirs anyway should the roots damage the sewer pipe.

 

If you feel you really MUST do something about it then just cut the one root that is causing a problem and leave the rest instead of cutting along the boundary if it puts your mind at rest. If any other roots cause an issue in the future then it will be on them anyway.