Un-adopted Trees

[Gary Prentice]

I've had an interesting inquiry. The perspective client has a tree in front of his property which is in decline and shedding limbs, one of which has caused damage to his vehicle.

 

The tree is best described as being on a roundabout, surrounded by houses on a small 1960,s estate. The LA have maintained the grass for a number of years, but on inquiry admit that it isn't owned by them and they may actually cease to do so.

 

A search with Land Registry reveals no owner either. All the surrounding properties are of similar design, so the assumption would be that a developer purchased the land, divided it into building plots and registered each individually. The road was built to standard to become adopted, but the island was never registered.

 

A search with Mynors reveals no answer, apart from cautions to the risk of trespass and criminal damage claims,if unauthorized works are implemented and an owner appears at a later date.

 

If the tree is is in such a condition that it poses risk to the highway, the LA have the ability to undertake the works themselves and impose a charge on the land, under the Highways Act.

 

My question is though, having cared for the land for a number of years, are the council now in a position, voluntary or involuntary, of bearing responsibility for it?

 

If so, they would have a liability for the damage caused to the clients vehicle and a ongoing duty of care to ensure that the trees are inspected and maintained appropriately.

 

My interest is academic, in that I can't answer the clients questions. He is willing to bear the cost of removal, if necessary, and isn't seeking recompense for his damages. But he certainly wants to sort the problem out.

 

His rights to self help etc are limited, he has no landowner to inform about the problem, the council deny responsibility, so apart from parking elsewhere there doesn't appear to be too many solutions. The land is also used as a play area by all the residents children.

[MATTMOSS]

I've had an interesting inquiry. The perspective client has a tree in front of his property which is in decline and shedding limbs, one of which has caused damage to his vehicle.

 

The tree is best described as being on a roundabout, surrounded by houses on a small 1960,s estate. The LA have maintained the grass for a number of years, but on inquiry admit that it isn't owned by them and they may actually cease to do so.

 

A search with Land Registry reveals no owner either. All the surrounding properties are of similar design, so the assumption would be that a developer purchased the land, divided it into building plots and registered each individually. The road was built to standard to become adopted, but the island was never registered.

 

A search with Mynors reveals no answer, apart from cautions to the risk of trespass and criminal damage claims,if unauthorized works are implemented and an owner appears at a later date.

 

If the tree is is in such a condition that it poses risk to the highway, the LA have the ability to undertake the works themselves and impose a charge on the land, under the Highways Act.

 

My question is though, having cared for the land for a number of years, are the council now in a position, voluntary or involuntary, of bearing responsibility for it?

 

If so, they would have a liability for the damage caused to the clients vehicle and a ongoing duty of care to ensure that the trees are inspected and maintained appropriately.

 

My interest is academic, in that I can't answer the clients questions. He is willing to bear the cost of removal, if necessary, and isn't seeking recompense for his damages. But he certainly wants to sort the problem out.

 

His rights to self help etc are limited, he has no landowner to inform about the problem, the council deny responsibility, so apart from parking elsewhere there doesn't appear to be too many solutions. The land is also used as a play area by all the residents children.

 

A difficult one Gaz, I am coming across this more and more.

[Gary Prentice]

A difficult one Gaz, I am coming across this more and more.

 

It may be the case that we'll be discussing this in a more official capacity soon:001_tt2: I'm visiting it over the weekend. The problem that I foresee is if the council don't assume authority/responsibility it becomes a free-for-all.

 

It's possible that because of the prior usage, all the occupiers could claim a joint ownership under some sort of residents association and then pay for the maintenance themselves. TPO the group to ensure that it stays. Ideal world:lol:

 

I think you'll probably end up claiming it. Simple solution is to stick a couple more quid on the council tax for tree care:thumbup1:

[nepia]

Perhaps I've missed the point here but if bits are dropping off the tree and damaging cars there is plainly a risk to people.

If there is evidence that all reasonable efforts have been made to trace an owner without success then go ahead and make the tree safe. Who's going to complain about removing a risk to life and limb?

Let's put it in reverse: leave the tree because an owner can't be found. A lump drops off and injures someone badly. It would transpire that enquiry had been made to find an owner but having failed everybody did nothing.

Great.

 

'Preventing risk to life' is a very valuable escape card.

 

 

Jon

[Gary Prentice]

Perhaps I've missed the point here but if bits are dropping off the tree and damaging cars there is plainly a risk to people.

If there is evidence that all reasonable efforts have been made to trace an owner without success then go ahead and make the tree safe. Who's going to complain about removing a risk to life and limb?

Let's put it in reverse: leave the tree because an owner can't be found. A lump drops off and injures someone badly. It would transpire that enquiry had been made to find an owner but having failed everybody did nothing.

Great.

 

'Preventing risk to life' is a very valuable escape card.

 

 

Jon

 

A valid point,

 

 

'Preventing risk to life' is a very valuable escape card.

Early indications are that the perspective client is looking for removal, but as yet I've neither seen the tree or actually met him.

 

I would suppose that it would come down to the minimum necessary to prevent the risk, which may not be the clients ultimate goal.

 

In a nutshell, I suppose my real question is; can the LA deny responsibility, due to their previous and ongoing management regime. By managing the land, have the incurred responsibility?

[MATTMOSS]

I would say yes, if they used to manage the land and now it has come to light that they don't own it because it was never legally handed over. Therefore cease management, future responsibility diminishes.

I think the answer is, if it is supposed to by registered and managed by the Council- why cant this process be completed?

The other option as you say is for the local residents to register it and set up a management plan of their own.

There are a few similar cases of this around the borough.

[nepia]

I think Step 1 then is a phone call to the LA to ask them. You never know they may say 'leave it to us' and deal with it. Actually I'd say the chances of that are quite high given that something's already dropped off the tree, i.e. the risk is more than perceived, it's actual.

[daltontrees]

In a nutshell, I suppose my real question is; can the LA deny responsibility, due to their previous and ongoing management regime. By managing the land, have the incurred responsibility?

Q1. Yes. Q2 No. I think it really is a straightforward as that. If, as is surprisingly often the case, the Council has been maintaining for years on the basis of some long-forgotten agreement or default arrangement or commuted sum paid to them. And just because the Council maintains grass doesn't mean they maintain trees. I had a case like this a year ago, we had a 10m cherry slung and on the winch ready to fell it and remove it, within an hour we had COuncil tree officer and 4 of the 5 management committee members there and the affected owner, just about fist-fighting. Turned out Council had management responsibility for grass but not the trees. It arose from a deal done with the estate developer 30 years ago. Council washed its hands of the tree responsibnility at the first sign of trouble.

 

Chopping the tree down on the client's instruction sounds like a kindness. If the owner emerges, what recompense can he claim for removal of a dangerous tree? He could possibly prtove it was wrong to remove it but it would be a pyrrhic victory if the measure of damages was zero. Taking ownership of land just to deal with a dodgy tree seems like overkill.

 

What about Highways Act powers? Or Local Govt Misc Provisions Act 76?

[Gary Prentice]

One of my original suggestions to the client was to visit his Planning Department to search the original application to build the properties. A long shot, that the original developer, or descendants, were still in business.

 

I haven't considered any agreement between the LA and the original developer. But what is odd is the attitude, after the clients inquiry, that they would cease to maintain the area. It may even be the case that the council themselves planted the trees.

 

I would imagine the residents would prefer that the council claimed ownership and registered the land, absolving themselves (the residents) of any financial responsibility for future management. But the LA themselves are looking to reduce their own spending too.

 

I won't do any works until at least a confirmation by the TO that they are necessary, although I think the balls going to end up in the Highways Department's court for this particular tree.

 

Thanks for every bodies replies, further avenues of inquiry that can be investigated.

[LeeWill]

Sounds like a headache in a tin.... I'm interested in finding out the outcome of this