Land owner uncontactable

[Jon Heuch]

6 hours ago, daltontrees said:

Aoother arbtalk thread where no-one answers the question put by the OP.

 

No, you can't cut down the tree on adjacent land. Not lawfully in any circumstances unless with the owner's permission. You could cut back roots and branches to the boundary. You may be able to mitigate or eliminate the adverse effects of the tree on your soils in various ways that do not involve removing the tree.

Quite right that there are hindrances and no law saying you can, but with some research you might get the property transferred to the crown under bona vacantia. I would budget on 5 years for that process. Having met some of the people involved I reckon it would take 5 minutes in principle to get permission to remove the tree...the paperwork would take considerably longer.

 

Let's put it like this, the problem occurs fairly frequently and, with due diligence, is resolved. I have yet to hear of a case that has come back from the dead, so to speak.

[Jon Heuch]

1 hour ago, AHPP said:

Is it usually litigated as negligence rather than nuisance or trespass when there is damage?

The standard cases lump nuisance and negligence together in tree root cases. The basic legal logic of such cases are similar if not the same (being a non-lawyer that's what it appears like). Issues such as duty of care, foreseeability, causation have to be proven in a chain i.e. if one fails the whole argument fails.

 

Trespass and encroachment are somewhat side issues. 

[daltontrees]

1 hour ago, AHPP said:

Eh?! Trespass to land no longer a tort? 

Sorry I meant trespass as a form of nuisance. It's still wrong. So much so that I think it is considered a 'strict liability offence' i.e. there is no need to prove nuisance, simply being there is wrong. But I'm in Scotland where attitudes to trespass are different and the law has been changed radicaly to allow or codify rights to roam.

[daltontrees]

1 hour ago, Steven P said:

Yes, English law and case law ... 'Candy floss conservatory' - probably went that way because it is low value? Could be looked at again if the damages were to a new build worth lots of money, or lots of money for the repairs where fighting the case, judicial review and all that could make economic sense?

 

Remember years ago a talk by the H&S man, often they would just settle cases because the legal fees were more than the payout even if the injured party had no leg to stand on - cheaper - might be the same here that a small repair is more cheaper than contesting the case, getting the designers or builders to court and passing the liability on to them.

The difficulty with reading into the case is that we don't know if it was low value. The court on a point of law overruled a tribunal's interpretation of the law, and sent the case back for re-valuation. By rights it should have gone from the Council being completely liable to the builder being mostly liable. I don't think the amounts were ever published.

The law is getting a bit clearer and I think we should be grateful that Gloucester took it to appeal as a matter of public interest.

You're right about a culture of settling. I'm sure there's a sub-culture of completely spurious claims that take advantage of it.

The conservatory case I suppose was one where because a conservatory doesn't need bulding warrant there is no objective standard for foundation design and the builder probably just made something up. But for a house extension where a warrant is needed, supported by a structural engineer's calculations and certification of design, an inadequate foundation would have been stopped before getting on site.   Or an inadequate foundation woud hav ebeen contributory negligence.

[GarethM]

7 minutes ago, daltontrees said:

The difficulty with reading into the case is that we don't know if it was low value. The court on a point of law overruled a tribunal's interpretation of the law, and sent the case back for re-valuation. By rights it should have gone from the Council being completely liable to the builder being mostly liable. I don't think the amounts were ever published.

The law is getting a bit clearer and I think we should be grateful that Gloucester took it to appeal as a matter of public interest.

You're right about a culture of settling. I'm sure there's a sub-culture of completely spurious claims that take advantage of it.

The conservatory case I suppose was one where because a conservatory doesn't need bulding warrant there is no objective standard for foundation design and the builder probably just made something up. But for a house extension where a warrant is needed, supported by a structural engineer's calculations and certification of design, an inadequate foundation would have been stopped before getting on site.   Or an inadequate foundation woud hav ebeen contributory negligence.

Daft question, if the structural engineer said 2m foundations, the council agreed and then signed it off as adequate.

 

Who would be negligent?.

[daltontrees]

13 minutes ago, GarethM said:

Daft question, if the structural engineer said 2m foundations, the council agreed and then signed it off as adequate.

 

Who would be negligent?.

Not so daft, but I don't know. The statutory responsibility of a Council to ensure the adequacy of foundations may or may not (depending on what the Building Regs say) include adequacy against subsidence or heave. I just don't know. I'm in Scotland where shrinkable clays are almost non-existent and we have our own Building Standards here so I know zip about English system.

[Steven P]

Not so sure about knowing 'zip' - if so then you have a dollop of common sense at least.

 

 

In other walks of life, usually the one who signs something off is responsible for what they are signing off. I do the stuff, my manager signs it off as checked, approved to go ahead, but their manager has accepted that my checker / manager has suitable skills and experience to do the checks. If me and my manager follow the correct process (that isn't anything mental), then the next one up the chain gets hit. In work my line manager is not a checker - checking goes sideways and then back to my manager for approval. Similar for buildings and the council? Design is done, checked by the architects somewhere, council approves with knowledge of the architects experience?

[dan blocker]

4 hours ago, Jon Heuch said:

It may take time, but it's pretty easy to write a letter to ensure that a) the property owner removes the tree (to minimise their liability or b) allows access to remove the tree by the affected property owner. There may be some initial resistance but when faced with the reality of the liability very few resist for long.

Non of us know the exact details? subsidence is thought to be because of the oak tree? Who says? Just because branches overhang the boundary doesn’t mean the oak is close to the house does it. What is the distance of house from oak tree. No mention of any pro survey, no trial pits to find roots? Nothing, nada? A letter on its own is not enough to make the owner of tree remove it? It would require a full inspection, survey and report, plus owner of said tree could question quality/ standard of build of house in the first place. We don’t have enough facts and the op’s gone walkabout looking for the trees owner🤔