Un-adopted Trees

[daltontrees]

Up here it is and has been for decades quite common for developers to pay the Council a one-off sum to maintain open spaces forever. Of course eventually no-one can remember what happened but the maintenance continues becaue it's on a work schedule. Developer is long-gone, happy to wash hands of open spaces that may not have been properly conveyed to residents or Council. In my experience Council maintenance means nothing when it comes to legal liabilities for trees.

[openspaceman]

Up here it is and has been for decades quite common for developers to pay the Council a one-off sum to maintain open spaces forever. Of course eventually no-one can remember what happened but the maintenance continues becaue it's on a work schedule. Developer is long-gone, happy to wash hands of open spaces that may not have been properly conveyed to residents or Council. In my experience Council maintenance means nothing when it comes to legal liabilities for trees.

 

If the developer has the agreement then the council have to do the maintenance but any liability must remain with the owner I think.

 

Unless no one ventures onto the space the council cannot establish exclusive use and the agreement to maintain would prevent them gaining possession as this would be seen as a licence.

[daltontrees]

If the developer has the agreement then the council have to do the maintenance but any liability must remain with the owner I think.

 

Unless no one ventures onto the space the council cannot establish exclusive use and the agreement to maintain would prevent them gaining possession as this would be seen as a licence.

Unless the developer got the Council to agree to maintain the trees too. All I was getting across was that in the past there have been agreements of this kind that no-one documented.

 

The point about license and possession seems very apt. The Council might struggle to take title (ownership). Historically the law of land ownership in Scotland has been very different from England and the terminology is different, but I always understood that open, peacable and uninterrrupted possession could be used to turn defective title into clear title. That being so I don't see how the residents could take title. Even if they could it would proably have to be on a shared ownership basis which would cost thousands to change everyone's title deeds.

 

I now recall trehre was a thread about this very subject about a year ago, a strip of developer's no-mans-land. There might be some answers there.

[fagus]

Clearly real risk has to be present. My understanding is that that the LA has responsiblity under Highways Act to remove risk if within falling distance of the highway.

If the owner is present notice can be served; if as often happens the owner is not known or absent (often abroad) the issue is to remove the danger first and find out the owners later.The LA costs involved can be held till ownership is resolved.I recall the Land Registry will investigate and pronounce on title for a fee.

Prudent of the LA to look at the original planning permission to see what the intention was for the area. With LA legal approval it is prudent to take action and not to risk injury or worse; could be embarrassing and costly to find out later the council do own and are responsible and therefore by not taking action were negligent.

Tree work would be hundreds of pounds negligence thousands.

A tree contractor could do the work but at the LA's instruction.

[daltontrees]

I don't think they have strict obligation to remove risk, just the option to do so.

 

Sorry, I am such a pedant, I can't help it really I can't. Highways Act says that if "any hedge, tree or shrub is dead, diseased, damaged or insecurely rooted, and (b) that by reason of its condition it, or part of it, is likely to cause danger by falling on the highway, road or footpath, the authority may" intervene. They don't have an obligation to do so. But I suppose if it was brought to their attention and the danger was clear and they didn't intervene and someone got hurt they would be complicit. I recall their first tack is to serve on the owner or occupier notice. If nothing is done or an appeal against the notice os unsuccesful they can take entry, remove the danger and recover the expense. They would have the problem of identifying the owner. If they couldn't they would know they won't get the costs back.

[Andy Clark]

The "land of unknown ownership" stuff is easy peasy. Nail a big bold note on the tree, and post it in several local and national newspapers also, clearly identifying the address of the land in question, and asking the owner to make themselves known within 28 days. Append to that, notification of the clear intention to fell the tree after the passing of 28 days should no owner come forward in that time.

 

That way, your client has a bullet proof defence, that is well established and recognised, should anyone ever come forward in the future.

 

As for liability for the tree in the meantime, well that's a can of worms......

 

Firstly, the LA. The important point that seems to have been missed (at least from how I've read the thread) is that of Duty. The LA, as the Local Authority (the clue is in the name) have a Duty under numerous statutes. Highways Act being one, as has been mentioned, in so far as their Duty to provide and maintain safe and un obstructed passage to users of the public highway - with the Authority granted powers under the Act that they "may" enter third party property in order to discharge that Duty. So the emphasis shouldn't really be on the usage of "may", but on the actions of upholding their Duty under the Act. If they choose not to exercise the granted Authority to enter third party land in order to safeguard the Highway from a known hazard , then they would categorically be in breach of their Duty under the Act. Moreso, if it was known to them that there was no known owner of the land.

 

But, let's not forget that that Duty only extends to the Highway. It does not extend to anything off of the Highway. For example, if a branch reached over the Highway from one side of the road to the other, and the end of the branch then snapped out and landed on a private driveway, that would be outside of their Duty under the Act.

 

As for Misc Prov, it's a similar standpoint, but just applied more widely - in so far that it grants the LA the powers to enter private land to attend to a known hazard to the wider populous. For example, to attend to a large dead tree in private land, located within striking distance of a public play area.

 

Similar in some respects, is also the LA's powers under the Planning Act, and the Environmental Protection Act - again, in so far that they all grant the LA the Authority to enter 3rd party land in order to abate and rectify certain nuisances - as defined within the relevant Act.

 

The issue is though, is that most LA's will hedge their bets when it comes to land of unknown ownership. Primarily, because all of the relevant Acts also grant the LA the ability to recoup the costs from the land owner. But if no land owner, then no means of recouping the costs. And so it becomes a gamble, based on the likelihood of anyone ever taking a successful action against the LA for not rectifying the problem, versus the time/effort/expenditure of solving the problem with no means of recourse.

 

 

There could be a route for action though in Common Law under a Negligence claim, especially given that the LA have been cutting the grass, assumingly under the tree in question also - so therefore in theory could be reasonably expected to be aware of the location and any defects/hazards arising from the land that they are maintaining.

 

Possibly also under Occupiers Liability, in so far that by conducting the relevant maintenance of the land, there are by default assuming the role of the Occupier. Given that Occupiers Liability places the Duty on the Occupier, and not the land owner, then it's possible.

 

As for any claim of ownership by the LA, Adverse Possession (squatters rights) is not an enforceable action - ie, you can't make someone claim the land if they've been utilising sole enjoyment. It only works one way unfortunately.

 

If your client's not looking to claim for the damage though, I would just advise to go for the big bold note, and then crack on and fell it.

 

 

 

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[daltontrees]

If the big bold notice route is being followed I would think the right to deal with the tree (if the right exists at all) would extend only to removing the danger, not felling the whole tree. And for devilment the arisings should riughtfully be left on the land. MAy of course prevent the Council continuing to maintain it unless they remove the arisings at their own expense.

 

So the potential client is not necessarily facing cost of felling and clear-up, rather the cost would be knocking off the dangerous limbs and leaving the stuff there.

 

I have said it before but it still seems to em that if you do this the owner even if he does turn up has no quantifiable claim for damages.

[Andy Clark]

Look at it a different way -

 

You say that your client has checked land registry, and that has shown there to be no owner.

 

The tree has already caused damage, and, given that there is no clear owner and that the LA are trying to walk away, it would be fair to assume that there is both a) no inspection regime in place, and b) no maintenance plan in place - and also that there never will be either of the above in place - hence the tree will only continue to be neglected, and therefore possibly liable to future collapse/drop events.

 

Ok, granted, we've only talked about the in's and outs of the legal/liability stuff, and so have no real knowledge of the tree, height, size, species, condition, maturity, SULE, amenity value etc, and are therefore flying blind here, but remember that the Common Law defence is that fantastic perspective of Reasonableness.

 

Given the above, and the known likely future of the tree, and again, stating clearly on the big bold note the clear intention to fell the tree if no owner comes forward, then I'd be confident that removal would be justified and could be defended. .

 

We used to do it all the time with subs claims - which, ok, different perspective, in so far that the tree as a whole entity was causing indirect damage, but we never looked at heavy pruning remedies (which some do argue as a reasonable remedy), we just used to fell.

 

 

So let's work a bit more on the details......

 

What's the tree like? Good condition, nice specimen?

 

 

 

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[daltontrees]

I am curious too to know about the specifics of the tree. For now I am sticking to the line that only removal of the danger could be justified, not removal of the whole tree.

 

And I always thought that there was no such thing as no owner, and that grey areas were dealt with by something called the 'doctrine of lost grant' or something like that which allowed for defective titles to be remedied to take into ownership these bits of no-mans-land.

[Jesse]

Just take it down, keep a record of all your enquirers, photograph the tree before hand, and leave a note stating the reasons and that the arising's (In chip form) have been retained off site and may be retrieved up to 28 days from date of removal. Beyond that date they will be disposed of accordingly.