Trees next to us

[Dan Earp]

Take lots of pics from different angles, if the council has already come out once then might do a survey as well. If it was me id pay out for one, whats more important paper money or your own child's life. If it was ever to come down

 

Also as a thought. Surely if something like this tree is a h&s 'nightmare'. Would you really need permission to go on his land ? To carry out a survey ??

[Lukey-Loki]

Thanks mate.

 

No worries. I would be interested to hear what happens if you'd care to post any updates.

Good luck.

[davey_b]

No worries. I would be interested to hear what happens if you'd care to post any updates.

Good luck.

 

Will do

[fagus]

Ask your insurance company for advice and to get involved they have an interest here.

Unless he is documenting his inspections they are not happening; take photographs winter and summer of their current state and anything falling off them;document when you took the photos.

[Wolfie]

Also, we had the council tree specialist out who pretty much said that the trees needed work done to them, I don't think an official tree survey would make much difference to him. I guess it might show him totally liable if anything did come down.

 

He would be totally liable under the Occupiers Liability Act should a tree that has been identified as defective cause damage.

I'm unsure if you can force him to do any works but i would certainly get professional to survey the trees - even with binoculars you should be able to identify some potential defects.

I would then write a letter and get it recorded delivery stating that specific trees under his ownership are identified as defective for whatever reasons and that he is liable for any damaged caused. Make it quite clear that you would nail his arse to the floor if anything did happen.

This wouldn't be much recompense if god forbid the worst did happen but by highlighting clearly to him that you would ruin him might just make him do the right thing.

I'd also copy in the council with the letter.

[daltontrees]

If your citrcumstances are as worrying as you describe them to be, you have my sympathy. I am based in Scotland (not far from you) and I will add my say for what it's worth.

 

Firstly I think Wolfie's advice is generally the right tack to take but with a couple of refinements I would suggest.

 

The first is that the Occupier's Liability Act strictly speaking would not apply here. But the Act (and the scottish versions) are reallly just statements of the common law, they don't change the common law but they make proof easier. The Acts apply to harm or damage to you while visiting someone or while on their land. That isn't your situation, you are worried about damage or harm to you and your property from a tree on someone else's land that could fall into your land. Fortunately and quite sensibly the legal duties on the tree's owner are fundamentally the same as under the Acts. But just to summarise that bit, there is no statutory duty (i.e. ACt of parliament or the scottish assembly), but there is a clear common law duty.

 

Second thing is that in Scotland the ability of local authority to intervene in such a situation is significantly less than in England/Wales, as we do not have teir Local Government (Miscellaneous Provisions) Act. In effect in circumstances like this the Council can't do anything.

 

So you are left with common law. What does it say? It basically says that the tree's owner has a duty to ensure that his tree does not cause harm or damage to a neighbour. Two things to note right away. He only has to act reasonably if he should foresee harm or damage. Not just cut down all his trees in case they harm someone. Also this is a duty, not an obligation. The effect of that is not that he is guaranteeing your safety, just that if there is harm or damage his actions and inactions that could have prevented the harm or damage will be examined closely. In effect he cannot be compelled to do anything, perhaps until it is too late.

 

It would indeed be a good idea to have the tree inspected from a distance, on your behalf. The report will be of limited usefulness, as many aspects of the tree and perhaps one or more of its sides cannot be seen. The report could be sent (recorded delivery if required) to the owner, and to the Council if you wish as a courtesy. The report may give you some reassurance that the tree shows no outward signs of imminent failure. Even if the owner is left out of it, this might be enough to allay your own concerns. But if the remote inspection presents firm evidence of unacceptable risk, the report could also specify the works that would be required to reduce the risk to an acceptable or tolerable level. The ball will then be in the owner's court. He can have the implications for duty of care and for his insurance and perhaps his personal sequestration if he cannot meet an uninsured claim for harm or damage. But it is still his choice.

 

I suspect therefore that if the report concludes that even with limited remote inspection the risk is unacceptable the owner will negate his own insurance. If you advise your insurers they will be largely powerless to intervene. If anything I would be concerned (and it is a very remote possibility) that they might withdraw your insurance cover.

 

As a footnote I would add that he is not obliged to get expert inspection of his trees. Rather, recent case law suggests that he doesn't have to if he has had a quick look and sees nothing obviously wrong. However, that level of duty might increase if your expert or specialist raises specific concerns.

 

Based on what you have said so far, I would advise a specialist report, but make sure the specialist knows what you need and why and that his report will address it. I'm not touting for business, but if you are stuck I will inspect and report for you, as you are nearby. But generally I would not like to see Arbtalk being used in that way.

 

I hope my thoughts are of some help meantime.

Edited November 24, 2013 by daltontrees

[difflock]

davy b, if you are now so concerned as to the safety of your house in respect of these trees, why did you buy or rent it?

I regularly get a bellyful of "H & S" related nonsense re Council trees overshadowing "their" house.

Generrally due to obstructed visibility or falling leaves, or twigs blowing into their garden in a storm.

But then for heavens sake, why did they buy the house in a row backing onto the already maturely wooded parkland.

Regards,

Marcus

[davey_b]

Thanks for all the information guys, lots to think about there. I'm not sure the tree is likely to come down but we're just looking to find out what the risk is. It's likely been there for between 100 and 200 years so it's quite possibly safe, I would just like someone who knows more about trees than me to be able to ascertain that. Jules, I might take you up on the offer of a survey, I'll get back to you if I do.

 

Marcus, we converted an old stables out in the country so it has trees around it, some near, some not so near. I have no issues with leaves, obstructed light etc. and to be honest to a certain extent I'm not even that fussed if a tree falls and wipes out part of our house, it was partially flattened and rebuilt during conversion so I know it could be put right. The issue of course is putting a child in a bedroom that might be under said tree. We have another room that they are in at the moment but were looking to move them at some point in the coming year, thus we wanted to find out if this tree was any risk.

 

I was thinking about the fact that the land owner said he did not give me permission to go onto his land to get a survey done. I'm not sure if it would apply but in Scotland we have the right to roam act and you can pretty much go anywhere you like. It's not his garden, there are no animals on it, it's just a banking at the back of our house with trees on it, no fences etc.

[daltontrees]

I was thinking about the fact that the land owner said he did not give me permission to go onto his land to get a survey done. I'm not sure if it would apply but in Scotland we have the right to roam act and you can pretty much go anywhere you like. It's not his garden, there are no animals on it, it's just a banking at the back of our house with trees on it, no fences etc.

 

That's an interesting moot point. The right to roam allows you to roam. But I am not so sure it allows you to take access to land to record information for the purpose of tactical advantage in a civil matter. Personally I can't claim any expertise on how the law stands on that point, and to speculate further might be prejudicial. Keep it simple is what I would profess.

[difflock]

I was aware my post could have come across as a trifle "snarky" or baiting.

Thank you for understanding.

However, whilst lying and thinking ove the root cause of my irritation, I reckon it is due to the march of progress and new houses everywhere forcing change on others.

Especially the adjoining landowners, who are then oblidged to bear extra costs at the whim (sometimes/mostly) of newbie blowins.

Perhaps the developers of new estates marching virgin woodland or farmland should instead be oblidged to fund permiter fencing (re "dangerous" livestock) or tree surveys, and associated maint works, and in perpuitity.

Then they can load this extra cost onto these desirable new homes in the form of a legal condition on their ongoing ownership.

This might curtail the demand for such currently desirable homes.

regards,

marcus