Legally enforce inspection?

[Arctostaphylos uva-ursi]

lol:001_rolleyes:

[Jesse]

Thank you to all who have so negatively responded to my response to this post. I think those who can should read in detail all current legislation relating to this issue and consider carefully this case as it was presented and the desired resolution to the outcome of this specific problem from the OP. There is also one other situation where by the owner of a presumed dangerous tree would not be liable under current legislation , the owner of the tree does not have to disclose what tree management plans are in place prior to an incident accruing so long as he can demonstrate in a court law that there was a Proactive tree management plan in place, this Proactive approach could even be as little as monitoring a situation and making safe when needed which i think he has done. I don't make the laws , interpret them as you like, but we don't for one minute have to fell trees just because some unqualified person thinks we should.

[Jesse]

The answer to the OP - Legally enforce inspection ? NO, but all you have to do is ask the owner if the tree is safe and when was the tree last inspected. Should we now define who the law considers is acceptable to inspect a tree ?

[Andy Clark]

Well, I tried.

 

But hey ho, if you can't beat them, may as well join them.....

 

Yes, you can "sort of" legally enforce that the duty holder inspects their trees.

 

But it is very convoluted and drawn out, with many different facets of the laws and statutes coming in to play in many different situations -

 

For example, no one here, that I've seen (apologies if I've missed it) asked if the neighbour is in fact the owner of the house - or are they a tenant. If the latter, then the non resident owner/landlord/managing agent can be enforced under Section 3 of the :HaSAWA to rectify the hazard. (Although this will more be the case that they will usually enforce the tenant to fulfill their obligations as the duty holder under the terms of their tenancy, rather than carry out any rectification themselves - or will carry out the rectification and re-charge to the tenant)

 

Another, as someone mentioned previously, is that the Local Authority has powers under the Misc Prov Act to enforce that, if a hazard poses a risk to others, the duty holder must rectify that hazard - the LA also have the authority to enter the premises, rectify that hazard, and pursue the costs from the duty holder.

 

Also they have the same powers under the Highways Act and the TaCPA. - although this does not necesarily relate to the tree posing a hazard, but can be used in relation to trees if need be.

 

In terms of Conifers (or other evergreen), and if there is two or more in close proximity, then there's the LA's powers under Section 8 of the Anti Social Behaviour Act.

 

Another is the standard duty of care under Ocupiers Liability - although that's more the "we can't make you inspect trees, but you have no defence to a claim if you haven't".

 

Qualifications of person carrying out the inspection?

 

Yeah, that one's easy. Poll vs Bartholomew established that one - which in turn equated to the now practice that the level of inspection dictates the level of qualification of the inspector.

 

Any more?

 

)

 

 

Sent from my BlackBerry 9700 using Tapatalk

[JonnyVine]

Andy

 

I think you've just about covered everything there!

[JonnyVine]

Forgot to say, glad you joined in properly in the end, brilliant.

[Jesse]

The various Acts of law pertaining to land owners are not just in place to be used by there neighbors as a means of achieving there own desires, quite often those people with grievances misuse the law, dictating short sentence reference of what they believe will frighten and quickly dispel the owners desire to retain a tree. The extent of knowledge possessed by the tree owner may actually only extend to what he has just been told by his neighbor , the elderly being especially vulnerable . The various Acts of law are actually in place to protect the owner of the tree as well as his neighbor. There are far too many whispered meetings behind boundaries between contractor and neighbors who believe the law to be straight forward and only in there favor.MITIGATION- Face to Face is always the best way forward, spoken calmly and without demand. You don't know a persons financial circumstances, refusal or ignorance of an issue may actually be as a result of them having no money. If you want the owner of a tree to do something then offer to contribute to the cost, its you who will benefit and there is nothing worse than the ensuing animosity that could develop and may last for many years.

[JonnyVine]

Jesse

You are quite right, English law strives to protect everyone, frustratingly, sometimes, the wrongdoer.

However, some things are cast in stone so to speak and the point here is that if a hazard exists (quite well established here) then a "Duty of care exists" and "someone" is responsible for that tree.

Just one point I feel requires a clarification, you mentioned money, As far as I am aware, financial constraint is not mitigation.

[HCR]

Financial constrain can be a mitigating factor, but it certainly doesn't affect the duty of care. That will persist for as long as there is a neighbour to whom one can be owed.

 

Thank you to all who have so negatively responded to my response to this post.

 

I presume I can be counted among these. Apologies if I caused offence - that certainly wasn't my intent. A fairly crucial misinterpretation of the law was put forward (specifically that a duty of care can be obviated by the licensing of neighbour to carry out remedial works) and I felt the need to clarify the situation.

 

Of course you can licence such work, but (a) you are not obliged to and (b) the neighbour is not obliged to carry the work out.

 

Note that neighbour is used in the legal sense and not that of 'the person living next door'.

[treebloke]

If you want the owner of a tree to do something then offer to contribute to the cost, its you who will benefit and there is nothing worse than the ensuing animosity that could develop and may last for many years.

 

I think you are confused about who has the liability here, it is a health and safety issue, not apples falling over the boundary fence and you also appear to pre-suppose the neighbour has the finances to rectify the situation?.