Right to prune branches when it destabilizes tree.

[treelover123]

7 hours ago, john87 said:

If it trespasses over your ground, you can cut off the offending bits, now matter what anyone claims to the contrary. If this "destabilises" the tree, not your problem. PROVIDED that you have warned the owner that this may be the case.

 

It isthen for THEM to take any action that may be needed to remedy the situation, nothing to do with you.

 

You have a right to "self abatement" that you may well lose if you allow things to drag out.

 

They obviously do not give a crap about you or your property, so just send them a recorded delivery letter telling them what you are going to do and do it.

 

What can they do??? precisely nothing. They cannot force you to put up with a trespass to your property, end of.

 

“EX TURPI CAUSA NON ORITUR ACTIO”

 

 “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”.

 

john..

 

Why might I lose the right to self-abatement? 

[Stere]

Post a picture?

[tree_beard]

You'd have to really be trying hard to destabilise a tree by pruning it. Plenty of trees lose half their crown to failure, storm damage, or boundary pruning,  they don't tend to keel over as a result of not looking symmetrical.

[dangb93]

In my understanding of common law, you can cut the overhanging branches as far as the boundary line without consent from the landowner (Earl of Lonsdale v Nelson 1823), but you are not allowed to trespass onto his land to do so (Lemmon v Webb 1894). 

You must offer the branches back to your neighbour, in an unconverted condition (Mills v Brooker 1919).

 

There seems to be a general acknowledgment that such pruning back to the boundary must be done with reasonable care, which implies not damaging the tree, but I don't know myself where the reasonable care bit is found in common law in regard to pruning back to the boundary. Perhaps someone can enlighten me,  @daltontrees or any other consultant on here?

 

Edited February 19 by dangb93

[john87]

42 minutes ago, dangb93 said:

In my understanding of common law, you can cut the overhanging branches as far as the boundary line without consent from the landowner (Earl of Lonsdale v Nelson 1823), but you are not allowed to trespass onto his land to do so (Lemmon v Webb 1894). 

You must offer the branches back to your neighbour, in an unconverted condition (Mills v Brooker 1919).

 

There seems to be a general acknowledgment that such pruning back to the boundary must be done with reasonable care, which implies not damaging the tree, but I don't know myself where the reasonable care bit is found in common law in regard to pruning back to the boundary. Perhaps someone can enlighten me,  @daltontrees or any other consultant on here?

 

 

So far as i know, you CAN "trespass" onto the neighbours land, but you have to tell them that this is the case.

 

I cannot find any references to "reasonable care" as regards damaging the tree or destabilising it, as you have an ABSOLUTE right to remove the offending bits, roots and all.

 

I would think that it would obviously not be legal to cause unnecessary damage, so cut the branches off with a saw and not drag them off with a farm tractor or blow them off with explosives, that sort of thing..

 

john..

[john87]

5 hours ago, treelover123 said:

Why might I lose the right to self-abatement? 

 

Because; [apparently] “…the courts have confined the remedy by way of self redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Thus, it … where there is resort to self-redress, the remedy should be taken without delay.”

 

And..

 

john..

[daltontrees]

The answer is that the answer is not known. This sometimes happens in law when the situation has not been fully explored by case law.

In such situations it is necessary to examine such case law and uncontested principles as there are and then project them into the scenario. A sort of joining up of the dots.

I have read Dr. Mynors Law of Trees, Forests and Hedges cover to cover a couple of times and he does not go near this question. Uncharacteristically for him, he shies away from it by suggesting that arb advice be sought before heavily pruning an encroaching tree. He makes a vague reference to liability for additional costs if the pruning is too clumsily done, but he does not go anywhere near saying that there would be liability for harm or loss of the tree.

There's a specialist tree lawyer Sahra Dodd, I have put the question to her too but apart from a vague reference to criminal damage she has declined to answer.

Disssatisfied as I am that such a common dispute has no clear answer, I have done what I can over the years to try and get to the bottom of it, on general principles.

dangb93 covers the core case law. Lemmon v Webb in particular is extremely clear that an encroaching tree owner never gains the right by passage of time to keep the roots or branches in another's property. Repeat, never. So it's clear to me and should be to all that if the encroached party did not have the right to cut back to the boudary it would defy the principle in Lemmonv Webb and indeed the very concept of ownership of land and would defy the legal principles of tort, nuisance and negligence.

All this must be modified though by the general principle of not foreseeably subjecting anyone to danger. So if you sneak out in the dark and detabilise the tree such that it falls its owner next door, you would be in the wrong. But if you tell him you're going to prune it and that he would be well advised to look out for it being potentially dangerous, in that way you are not exposing him to risk because he has the opportunity to foresee it himself and do something about it timeously.

This is all consistent with what case law I have found on analogous situations.

Someone always trots out the 'criminal damage' argument, but the criminal damage legislation does not create any new liability for someone exercising a common law right to abatement, so it is irrational to say that damaging an encroaching tree is a criminal act. But the criminal damage legislation might be the source of the spurious idea that the abater would be liable. it is absolutely unthinkable that it has overturned Lemmon v Webb.

I don't see the relevance of the 'ex turpi' principle here. The most succinct reference in case law I can find that covers what can and can't be done is this "where there are two ways of abating a nuisance, the less mischievous is to be followed".   

There is some suggestion that major nuisances are better resolved by getting a court order (injunction) but this conflics with the well-established principle of the right to self-abatement. So if someone built a garge on part of your garden, it's best not just to knock it down, get a court order instead. But an encroaching tree is a whole level of trivial below that.

The dots join up in my mind to say that self-abatement is permitted even if it results in the loss of the tree, as long as the abater acts reasonably. The law will not protect someone who acts to deliberately to spite a neighbour.

Edited February 19 by daltontrees

[john87]

34 minutes ago, daltontrees said:

"where there are two ways of abating a nuisance, the less mischievous is to be followed"

 

I will add to that.. Apparently case law also provides that;

 

"In exercising the right unnecessary damage must not be caused, except that where the alternative method of abatement would damage an innocent person the interference must be with the property of the wrongdoer"

 

From "Lagan navigation co v lambeg bleaching, dyeing and finishing co ltd"

 

john..

[Steven P]

For the nuisance, how much of the tree are you wanting to prune? not sure if it will make a difference, but if you were taking off a small amount this might be different from removing the 3/4 that is over hanging your  garden. Might be seen more favourably that you only pruned away the nuisance parts and not everything (even if you did take away more than absolutely necessary).

[daltontrees]

46 minutes ago, john87 said:

 

I will add to that.. Apparently case law also provides that;

 

"In exercising the right unnecessary damage must not be caused, except that where the alternative method of abatement would damage an innocent person the interference must be with the property of the wrongdoer"

 

From "Lagan navigation co v lambeg bleaching, dyeing and finishing co ltd"

 

john..

We are quoting the same case, but Lagan needs to be read carefully as it dealt with an abatement rather severely and the abater probably shouldn't have taken the matter into his own hands. That is why I mentioned that that major nuisances are better resolved by getting a court order.