Invasive Tree?

[janey]

Section B

snsc-02999.pdf

[RobArb]

Can't open that document on me phone?

 

What does it say?

 

Sent from Rob's GalaxySII

[janey]

You kids and your gadgets

 

B. Common law remedies for nuisance trees

 

Many people suffer nuisance from neighbouring trees because they may block light, have overhanging branches, and leave leaf litter and sap in neighbouring gardens. However, not all nuisance trees will be in a situation covered by the High Hedges provisions in the Ant-Social Behaviour Act 2003. For example, if it is only a single tree causing the problem. It is

then necessary to look for a common law remedy. However, for the situation to be an actionable nuisance the tree needs to be proved to cause damage or harm. The proper recourse is then to contact the property insurers or to seek legal advice.

Case law has set a precedent whereby some action can be taken by the householder without recourse to the law. For example, where the branches of a tree protrude into the airspace of another property, the tree owner is not obliged to cut back the tree. However, the person whose property is overhung may at any time cut branches back to the boundary provided they

can do so without entering the owners land. No notice need be given but the future stability of the tree needs to be taken into account as the neighbour would be liable for any damage that occurred as a result of the pruning. A similar right of abatement is allowed by cutting

applied to encroaching roots.

 

1. Damage by trees – Law Lords Ruling

 

Encroaching roots from neighbouring property may cause damage to house foundations, drains, or lightly loaded structures such as walls, drives and garages. However, if roots cause damage to built structures, an action in nuisance for an injunction and damages against the owner or occupier will depend on the extent to which damage was foreseeable.

A high profile ruling by the House of Lords Appeal Court in 2001 against Westminster City Council made the situation clear in respect of tree damage from roots. The owners of a building took action against Westminster City Council where a single plane tree owned by the Council had damaged the foundations. Westminster Council refused to remove the tree

and the claimant spent over £570,000 carrying out underpinning works which they then sought to claim from the council. The council lost its appeal to the House of Lords and the claimant recovered more than the cost of the repairs.

The Lords ruled that if it is clear that where there is a continuing nuisance, which a defendant knows about or ought to know about, the claimant is entitled to recover the reasonable costs of eliminating the nuisance if he has given notice of the problem to the defendant and a reasonable opportunity to deal with it.

 

The unanimous opinion of the Law Lords summarises the major English case law relating to damage to property, particularly foundations, caused by tree roots belonging to trees on a neighbouring property. I understand that your constituent is only experiencing problems with the branches but the ruling is available at http://www.parliament.the-stationeryoffice.co.uk/pa/ld200102/ldjudgmt/jd011025/dela-1.htm.

 

2. Right to light

 

As a property owner you can acquire a legal right to a certain amount of natural light. Common law provides this “right to light” which may be acquired by 'anyone who has had uninterrupted use of something over someone else's land for 20 years without consent, openly and without threat, and without interruption of more than a year.' The acceptable level of light in a home is taken to be where just over half the room is lit by natural light. Broadly Lemmon v Webb [1894] 3 Ch 1, affirmed [1895] AC 1, where it was held that a neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner's land, Lindley, Lopes and Kay LJJ all said that a similar right of abatement by cutting applied to encroaching roots (see [1894] 3 Ch 1, 14, 16 and 24). See House of Lords ruling HL55, Delaware Mansions Ltd v. Lord Mayor & Citizens of Westminster, 25 October 2001 speaking, the minimum standard is equivalent to the light from one candle, one foot away. However, the law also recognises that some loss of light is acceptable and the fact that there

is less light does not necessarily give a land owner a right to complain. As the law presently stands, a right to light is attached to a window or aperture and it is the amount of light that passes through the aperture which counts. There is no right to light in an open space or in a garden. Further guidance on hedge height and light loss has been provided by the Office of the Deputy Prime Minister and is available at Department for Communities and Local Government

07970.pdf

[RobArb]

Thank you:biggrin:

 

Thats interesting about the right to light, I did not know that!

 

 

 

Sent from Rob's GalaxySII

[treeseer]

However, the person whose property is overhung may at any time cut branches back to the boundary provided they

can do so without entering the owners land. No notice need be given but the future stability of the tree needs to be taken into account as the neighbour would be liable for any damage that occurred as a result of the pruning. A similar right of abatement is allowed by cutting

applied to encroaching roots.

 

I am not a solicitor nor a Brit but this seems to point to a reasonable approach. The offended party can simply prune the potentially offending roots on or branches over their property carefully, to forestall potential damage without risking toppling. This is a common solution in the US, where the law is similar.

 

If they are not content with that solution then they may well be using the tree as an excuse to offend the neighbor, in which case I would suggest complete avoidance of the mess, having been in the middle of too many.

[Sam Thompson]

Thanks Janey for that bit. Basically its all gone to courts and far above me. However I got a nice little consulting fee and some more work off the back of it

[Ruskins Trees]

Tree nuisance from roots/moisture removal can be abated by rootbarriers. Although we cannot believe that the most common used one is only 600-1000mm deep!!! When told to install this we laugh and explain its more about the moisture wicking across the soil /and anyway roots will go under and come back up again on the other side and exclude any liability. We call them root deflectors at this depth.

 

There is only one company that we are aware of that we think installs them deep enough to work, but I am not sure I can mention them, pm me for details.

 

Does anyone have any views on root barriers?

[Paul Barton]

Similar to you Robert - I have read/heard that they are often breached, either underneath or straight over the top.

 

Having said that I would be interested to know about the deep barrier you mention as I have a case at the moment of Poplar roots disturbing a drive and front garden - the tree is far enough away that root pruning won't de-stabilise the tree so I would like to investigate it further.