Branches Growing over my Neighbour's Boundary

[john87]

21 minutes ago, Puffingbilly413 said:

John I think you need to read the stuff you've posted more thoroughly. The circumstances where access to a neighbouring property to abate a nuisance are given quite clearly. The examples you've given don't quite support what you're saying 

Yes, they all say the same "where it is neccessary" [to abate the nuisance that is] Is the only safe way for you arb types to do it is to climb the tree, then that is "neccessary" so up you go!!

john..

[Puffingbilly413]

7 hours ago, john87 said:

Yes, they all say the same "where it is neccessary" [to abate the nuisance that is] Is the only safe way for you arb types to do it is to climb the tree, then that is "neccessary" so up you go!!

john..

You're not reading it all are you?

[kevinjohnsonmbe]

21 hours ago, Mark Bolam said:

My bad.

I’ve contacted the RHS and told them their interpretation of common law is wrong.

Their legal team have been sacked.

Did you tell ‘em to focus on flower arranging and leave he2-stroke to the big boys 😂

[daltontrees]

Having read the RHS and Arb Association guidance, I'd say they're both based loosely on the way the law was stated in Charles Mynors 1st Edition. The 2nd edition is less circumspect and less vague about the neighbour's rights. I wouldn't commend the RHS or AA summary of the law to anyone other than as a first port of call. If a situation gets heavy, I think the guidance will be found to be inadequate in some aspects.   

 

Whne I have had to deal with abatements I have not set foot on the tree owners land but have entered their airspace from the neighbours side only for the purpose of anchoring myself safely. I think that that is a perfectly reasonable act, whatever the guidance says. I would also use a ladder  footed in the neighbour's land.

 

If push came to shove as it sometimes does the neighbour could switch from self-abatement at his own expense to court action to force the matter at the tree-owners expense on the basis that refusal of access makes it too expensive or dangerous for the self abatemente option.

[john87]

5 hours ago, Puffingbilly413 said:

You're not reading it all are you?

Point out the bits i have not read?

john..

[Puffingbilly413]

23 minutes ago, john87 said:

Point out the bits i have not read?

john..

For entry into someone else's property, the encroachment has to be deemed a nuisance in the legal sense IE it is causing significant issues in terms of enjoyment or use of property.  And then you need to give notice of your intention to enter to abate the nuisance (which would give the owner an opportunity to address the problem first if they weren't already aware).  That's my reading of the bits you've copied into your posts, which led me the conclusion you hadn't read it all or just chose to use the bits that supported your point of view.

 

Regardless of all this, if a landowner says they don't want me on their property to carry out work then I won't do it. Granted, others might and they're welcome to it. I prefer an easier life.

[Mark Bolam]

I think that’s an excellent way of looking at it Billy.

 

Who gets to define ‘nuisance’?

[Puffingbilly413]

1 hour ago, Mark Bolam said:

Who gets to define ‘nuisance’?

I guess for any kind of enforcement action then it's for a court to decide. Before it gets to that stage though it might just be two sets of solicitors (on the part of their respective clients) agreeing that the encroachment is indeed a nuisance. But once solicitors are involved then common sense and a reasonable attitude have probably left the building anyway.

 

 

 

[GarethM]

And the ensuing abba tune dancing around their heads. Which is probably better than fiddler on the roof.

Edited September 29, 2022 by GarethM

[daltontrees]

20 hours ago, Mark Bolam said:

I think that’s an excellent way of looking at it Billy.

 

Who gets to define ‘nuisance’?

The highest civil judge in the land took the opportinunity in a recent japanese knotweed case to try and clarify the current law on nuisance. The most relevant bit of the decision is this

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

2.               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).

3.               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. 

4.               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. 

 

The most relevant bit for aerial tree encroachment is the third paragraph, but I have left in the 4th to underline that nuisance is not always damage, as had been thought for a long time. There is also wide application of the nuisance principle, crossing over (no pun intended) into negligence where root damage and clay shrinkage are involved.

 

Full case citation if anyone wants it let me know.

 

Edited September 30, 2022 by daltontrees