Squirrels - Actionable Nuisance??

[Andy Clark]

Do we really believe that people only get squirrels in their loft if they have trees abutting their house wall. Squirrels are quite good climbers of drainpipes etc.

Serious question- do squirrels get into your loft by other means than trees?

 

 

Nooooo, I'.m pretty sure "we" don't think that squirrels only climb trees. Well, I would bloody hope "we" don't.

 

But this isn't about us, it's about defending that point to a homeowner who's looking to blame something and get someone else to foot the bill for resolving the problem, rather than just accept the fact that it's just nature.

 

 

 

Sent from my BlackBerry 9700 using Tapatalk

[skyhuck]

Is it not the home owners fault for have a house built so close to the boundary, what if the squirrel was jumping from an adjacent house?

[Alinicoll]

As far as precedents go, the lack of precedent is enough. If the tree is not even encroaching no escape or negligence has happened. The burden of proof lies with the claimant.

 

Best of luck

[HCR]

Surely the onus is on the neighbour to come up with the reason for your customer to have the tree cut.

 

Exactly.

 

Otherwise your cuntomer is going to spend a very long time trying to prove a negative, which is not an easy thing to do!

[HCR]

The only scenario I can think of where the might be a case against the tree owner is that of public nuisance (a criminal offence, not just a tort). However, as the name suggests, the nuisance has to be to the public at large.

 

Leading case: Public Nuisance: Pigeons | The Law Gazette

[Andy Clark]

The only scenario I can think of where the might be a case against the tree owner is that of public nuisance (a criminal offence, not just a tort). However, as the name suggests, the nuisance has to be to the public at large.

 

 

 

Leading case: Public Nuisance: Pigeons | The Law Gazette

 

 

Surely the principle of 'nuisance' though as defined, is the same across the board? The only thing that differs is the instrument used to bring the claim, and the resulting verdict based on that instrument - hence the outcome would be either guilty if brought under a criminal act, or liable if brought under a civil act.

 

In terms of the Law Gazette extract though, the matters within the case in question mirror my own concerns as to why the tree owner might be held liable in this instance. For example the extract mentions the defence of Railtrack as being on the basis -

 

'that a landowner should not be liable for the activity of wild creatures, unless they have been attracted to his land by some non-natural or unreasonable action conducted on the land' .

 

But goes on to say that the Judge held that -

 

'1. The proposition advanced by Railtrack was inconsistent with the law as developed in Sedleigh Denfield v O'Callaghan [1940] AC 880. The claimant had rightly submitted that a person was liable for a nuisance constituted by the state of his property if, when it had arisen without his own act or default, he omitted to remedy it within a reasonable time after he became aware of it. Older authorities to the contrary had been convincingly shown to be wrong: see Liability for things naturally on land (1930) 4CLJ 13 (Professor Goodhart). The fact that the pigeons were feral should not affect the operation of that principle: see Proprietors of Margate Pier and Harbour v Town Council of Margate (1869) 20 LT (NS) 564 (liability for accumulation of seaweed). Nor was it material that the claimant in the instant case was complaining of inconvenience rather than physical damage to its property.

 

2. The council had not required Railtrack to do more than what was reasonable in the circumstances.'

 

So two points rise from the above principle -

 

1. On that basis that a person is 'liable for a nuisance constituted by the state of his property if, when it had arisen without his own act or default, he omitted to remedy it within a reasonable time after he became aware of it.'. then does the problem with squirrels using the property (tree) to gain access to a 3rd party building constitute an actionable nuisance?

 

2. If so, meaning that the tree owner is liable, then what can be agreed as being a reasonable course of action for the tree owner to take in order to abate that nuisance?

 

My argument is that pruning the tree isn't reasonable - based on the consideration of the tree species (Silver Maple) and the increase in the pruning that the tree owner will have to undertake as a consequence of the inevitable vigorous regrowth.

 

 

This has made my brain ache aaaaaaaall day

 

.

 

 

Sent from my BlackBerry 9700 using Tapatalk

[daltontrees]

I expect Mynors will have little if anything specific to say about this situation. I think that it is a question of whether there is a nuisance and not what action should be taken to remove the nuisance.

Incidentally, I have removed branches from a yew in a Conservation Area with the Council's consent, specifically to take away a jumping-off point for squirrels that were taking up residence in an attic.

As you probably already know 'Nuisance' in the legal sense has a different (or rather, a narrower) meaning than it does in common usage. In common usage the nuisance here is the squirrels, not the tree. Squirrels are well able to scale fairly smooth brickwork and to live (as a friend of mine found) in the attic of 4 storey buildings with no contiguous trees, if food sources, lack of suitable natural shelters and population pressures make it so. All the tree is doing here (based on what limited info you have given) is making it possible for the squirrels to get to the building from that tree. If the tree were not there they may be able to get to the building across the surface or from another tree. It is I suppose safest to use this tree, but there is probably no way of proving that the squirrels would not be there if the tree was not.

Asking your client to damage an otherwise harmless tree is I personally think too high a price to pay (financially and in tree health) for such an experiment. The exclusion of the squirrels from the building by blocking entry points will however be entirely conclusive and foreseeably successful.

In conclusion I think the controllable deficiency is that the building is not secure and that the onus and expense should be with its owner. I don't think that there is an actionable nuisance in the legal sense.

Just my opinion but surely anyone reasonable looking at the sutuation from the outside (a court for example) would favour your client's position?

[daltontrees]

Sorry, I meant to say it wasn't clear from your last post what happened in the Margate Pier case. I shall now go and read it, I didn't see the link to it and read only the bit you quoted.

[daltontrees]

I see the cited case (the Railtrack one, not the Margate Pier one) related to public nuisance. The Council must have been claiming as public health authority or some other statutory position. I don't think it has applicability to your squirrels. There is the similarity that no-one in either case was responsible for the presence of vermin in the area. Proofing the bridge might make the pigeons go elsewhere. but they could still sh*t on passers-by. So in your case, which will definitely prevent the neighbour having squirrels in the attic (a) blocking the entry points or (b) pruning the tree? We might never know, but if the neighbour is ever ill-advised and rich enough to take this to court I would love to hear the outcome, if not be there to hear his argument fall apart as he spouted it forth.