(Arboricultural-styled) 'Fact of the Day'

[daltontrees]

22/04/16. Fact #192.

 

Some info on UK case law, trespassing roots, and subsidence.

 

Could you please elaborate on what you mean by "assuming removal is done with reasonable care"?

[Kveldssanger]

When severing roots, they are not severed in a manner that would render the tree's structure unsafe, from a hazard management perspective, or tree health perspective. Such as in the picture, which I attached to the post.

[daltontrees]

Thanks.

[Kveldssanger]

Will be slowing down on facts until I finish reading Vera's Grazing Ecology book. Absolutely glued to it. Also on holiday again at the end of this week and over the weekend, so probably only one or two this week. Gives you all a further chance to catch up.

[daltontrees]

13/04/16. Fact #190.

The below relates to UK case law associated with the management of dangerous trees.

 

..... As a result, one can expect that only hazards relating to trees that are relative to the expected knowledge of the owner of the land, or those employed to look after such land, to be actionable. Such a standard was in fact elucidated to in Khan & Khan v London Borough of Harrow & Helen Sheila Kane [2013], where the court ruled that the issue of reasonable foreseeability is not a subjective test depending on the peculiar characteristics of the particular defendant, but is an objective test as to what ought to have been known to a reasonable person in the position of the defendant: “In this case, the relevant person is a reasonably prudent landowner.” However, a defendant’s subjective knowledge can impose a higher standard, the court found. Therefore, local authorities and organisations who are responsible for trees may indeed be held to such a higher standard. ...

 

It's interesting what you have taken from Khan. Generally it seems more relevant to your subsequent posting about roots and encroachment, as it was a subsidence case of 'nuisance' rahter than a dangerous tree 'negligence' case (although admittedly the two Ns are both siblings of the Duty of Care family). That said, the pursuers were found liable for a substantial amount of contributory negligence for the subsidence damage, for not giving notice to the tree owner and a chance to remedy the problem.

 

I'm not convinced that Khan made any substantive new law on the higher standard arising from subjective knowledge, since the judge was preambling from the findings in a much higher court (House of Lords) in Baker v Quantum Clothing, where a fuller debate can be seen and from which it is perhaps clearer that the higher standard is the kind of thing that might be expected of an employer rather than one that could be used to advantage by a neighbour. In Khan there seemed in the end no relevance to the commentary, since the defendant had no knowledge, not even general knowledge, of the relationship between trees and subsidence.

 

Khan remains an important case, though, cementing the inevitable outcome for the law that damage from nuisance roots carries liability that goes beyond the duty holder's need for casual lay observation. The court was thankfully careful to caution against seeing the duty as strict liability, clarifying that there must also be reasonable foreseeability. It seems to set up a need for routine specialist advice to be sought by tree owners to foresee that which the ordinary man with ordinary tree knowledge could not possibly do.

 

It was a brave subject to try and cover succinctly. I'm just pitching in that Khan wasn't really a dangerous tree case and that even the generalities relatin to negligence and duty of care that can be drawn from it are hard-won and not that conclusive.

[daltontrees]

 

- Stagecoach South Western Trains Ltd v Hind & Anor [2014], where it was determined that “there was nothing that should have alerted her [the defendant], or put her on notice, that the tree was anything other than healthy, or required a closer inspection by an arboriculturalist.” This case related to a 150-year old ash tree, whose stem had fallen onto the railway line from the garden of the property, which then resulted in a collision with an oncoming train. The court in this case drew influence from both Corker v Wilson [2006] and Selwyn-Smith v Gompels [2009], concluding that a system of informal observations by the landowner was adequate, and that an inspection by an expert arboriculturalist was only necessary if there was something revealed by the informal inspection which suggested that a more detailed inspection was required. The arboriculturalist was also found to not be liable for any wrongdoing, having worked on the tree more than one time prior to the incident. Again, there were no outward signs to suggest to him that there was evident risk associated with the ash’s presence.

 

 

Another clarification for arbs. You use the word 'arboriculturist' twice here but the context of the two uses is very different. Yes "an inspection by an expert arboriculturalist was only necessary if there was something revealed by the informal inspection which suggested that a more detailed inspection was required", but please note that the arboriculturist that you then mention as not being liable was in reality a tree worker who had not been brought in to inspect the tree - despite the pursuer's best efforts to implicate the innocent contractor by saying he had a 'duty to warn', the court said he was not implicated. As such, he was not there in the capacity of an inspecting arboriculturist. Otherwise it would be like blaming someone who fixed your car radio for faling to warn you that your tyres were bald and holding him to blame for your high-speed blowout on the motorway.

[Kveldssanger]

Evening Jules,

 

Thanks for the comments. Your in-depth analysis of stuff is, as always, appreciated. What I shared was what I wrote for my Lvl 4, so I tried to keep it as to-the-point as I could, without it getting War and Peace-y. Case law is something I must immerse myself in more, and having a take on it from someone who is far more experienced with it is great.

[Kveldssanger]

26/04/16. Fact #194.

 

In light (or the lack of, as may become evident!) of reading the first five chapters of Vera’s work in Grazing Ecology and Forest History (not yet done with the book), the recognising of oaks not regenerating under a closed canopy, because of a lack of light (and now you get the joke), is something I’d explore further. An article I found wasn’t quite aligned with this above statement directly, but sounded interesting and thus I’ll share it below. But first, a little wider context.

 

Often, mature oaks found in regenerating woodlands (because of the abandonment of grazing activities) will have an open-grown crown structure, with a wide-spreading crown from a low stem break, either through pollarding, or natural crown formation. Such oaks are usually very old, and of impressive size. These large trees, by virtue of their size and age, will also be host to saproxylic organisms (insects, fungi, and so on), and such a habitat may very well have also been present prior to the woodland regenerating around the old oaks. Before regeneration, these oaks may have been wholly exposed, or existed in a small scrub area, from which grazing livestock were barred from entering (to protect the tree, in order to safeguard the mast each year). Therefore, one can explore how the change in surrounds to the host trees impacts upon these saproxylic organisms, and what this may mean for future woodland management practices if conservation is a key consideration.

 

Generally, saproxylic organisms prefer lighter conditions. This is, of course, not true across the board, though particularly for insects, the more open conditions provide for better habitat quality. With regards to the diversity of the landscape, saproxylic organisms may also vary as diversity changes, and therefore the authors of the study being looked at in this post assess: (1) the species composition of saproxylic organisms in old oaks in regenerating thermophilic (temperate) oak woodlands in Krivoklatsko, Prague; (2) species richness in these oaks, and; (3) whether these organisms are affected by tree site conditions (solitary tree, woodland edge, open forest, dense forest). The study looked specifically at saproxylic fungi, lichens, beetles, ants, bees, and wasps, within the Krivoklatsko area.

 

From the surveying of fungi and lichens and trapping of arthropods, a total of 78 species of fungi, 36 species of lichen, 153 species of beetle, and 32 species of ant, bee, and wasp, were found. Generally-speaking, open habitats supported a wider and more homogenous fungal species range than closed-canopy locations, where populations were less diverse and less homogenous (as in, the species found were not very similar across all locations). However, fungi did seem to opt more readily for denser stands and woodland edges, in place of generally more open habitats, and in woodland edges species richness was greatest. This is probably because of the moister wood and cooler temperatures, which likely suit fungi more, though woodland edges may also be host to the greatest amount of deadwood as a result of windthrown trees being more plentiful. For lichens, diversity increased alongside the level of openness. Beetles perhaps took this to the greatest extreme, showing preference for open-grown trees. The greatest richness was also found in these solitary trees, followed by woodland edges – open and closed stands were generally poor, for beetle species. The ants, bees, and wasps were shown to prefer transitonal areas where the woodland edge met scrub (an ecotone, or the mantle and fringe), and this may be due to the higher abundance of potential nectar sources associated with shrubby species and herbaceous vegetation not found in the forest. Open forest stands were also supportive of these species, to a similar degree, and probably for the same reasons. The richness of species was also positively correlated with increasing levels of openness (up to a point – not solitary trees), by-and-large. The graphs below help illustrate the above.

 

The size of the circles relates to the species richness at the studied locations, and the graphs in the upper right corner refer to the weighted species mean in each of the four area categories. Fungi (a), lichen (b), beetles ©, and ants, bees, and wasps (d).

 

In response to the above data, what can certainly be suggested is whether a non-intervenionist approach to stand management is good, with regards to preserving saproxylic organisms; of which many are endangered. Ultimately, the goals of the site will dictate management practices, though the idea of leaving stands to become high and possess a dense canopy is not necessarily going to be optimal for lichens, beetles, and ants, bees, and wasps that rely upon deadwood principally (or near exclusively). In this sense, re-introducing management practices, namely coppicing around older trees, or other good saproxylic habitats, may be of marked benefit. Such practices also ensure that actual stand diversity does not shift in favour of, in time, near exclusively (or wholly) shade-tolerant species, such as beech (Fagus sylvatica), Norway spruce (Picea abies), and European silver fir (Abies alba), and also provides scope for re-intoducing lost practices (perhaps even extensive grazing) and revive potentially dwindling economies. If a stand is large enough, this management doesn’t even need to necessarily be widespread. A good mosaic of different habitats, ranging from open ones to higher canopies, may support the greatest number of species (assuming the patches are large enough, and abundant enough), and as mentioned, also support traditional rural practices that have unfortunately been so very lost in many parts of Europe.

 

At the same time, attention should be given to paving the way for future old oaks, in thermophilic oak woodlands, and as oak cannot regenerate under a closed canopy, the only way to provide for future generations is to re-open the canopy in large enough areas to permit oak regeneration. Given that our large wild herbivores are largely gone, we must assume the role of those herbivores, be it through the introduction of ungulates, or woodland management practices.

 

This begs the question – why is a non-interventionist approach to woodland management so popular?

 

Source: Horak, J., Vodka, S., Kout, J., Halda, J., Bogusch, P., & Pech, P. (2014) Biodiversity of most dead wood-dependent organisms in thermophilic temperate oak woodlands thrives on diversity of open landscape structures. Forest Ecology and Management. 315 (1). p80-85.

[Kveldssanger]

28/04/16. Fact #195.

 

This is from one of my assignments, so it's not extensive, but instead a sort of overview. If bits sound good, go and explore them.

 

For damages to be granted as a result of light occlusion to a property, it must first be established that there is indeed a right to light. Unless there is an explicit grant detailing a right to light, which is rare, right can come only in the form of prescription. Detailed in the Prescription Act 1832, a right to light may be acquired when a land owner has enjoyed uninterrupted light availability into his or her property for a period of at least 20 years. However, as the Act relates only to a specified opening (such as a window), the right to light can only be ascertained if it relates to a building; as confirmed in Harris v De Pinna [1886] and Levet v Gas Light & Coke [1919]. However, a building can also relate to a greenhouse, as stated in Allen v Greenwood [1980]. For example, if a new building is constructed that then limits the amount of light coming in through a window, and the level of light inside falls below the ‘accepted’ level, then this constitutes an obstruction. However, the accepted level of light ultimately relates to the intended use of the affected building, in turn making the accepted level of light non-constant. The more recent court case of Regan v Paul Properties Ltd [2006] even ruled that: “What matters is not so much the amount of light that is taken as the amount of light that is left as a result of the infringement. The consequence of the obstruction to the light in the middle of the living room was that Mr Regan would suffer a substantial interference with the enjoyment of natural light in his living room.” Whilst this related to the construction of a nearby building, such a ruling could potentially cross over to a ruling regarding light obscuration by trees. As of yet however, this has not happened, and it is therefore difficult to ascertain where the law stands beyond that of there not being an ‘active’ precedent. This is because trees only gradually increase in height, unlike buildings which are erected rather more swiftly.

 

The only existing law surrounding a right to light with regards to vegetation is the concept of a High Hedge, which is featured in Section 8 of The Anti-social Behaviour Act 2003. This involves at least a semi-evergreen hedge line of two or more specimens occluding light into a property (in England), thereby detracting from the enjoyment of the affected property. The threshold for whether a hedge is too high is determined by a series of mathematical equations. In Scotland, which has its own Act – The High Hedges (Scotland) Act 2013 – a high hedge may not be only from evergreen and semi-evergreen individuals, but deciduous broadleaved ones, too.

[Kveldssanger]

03/05/16. Fact #196.

 

Whilst overhanging branches of a tree are not deemed trespass but instead nuisance, the case of Earl of Lonsdale v Nelson [1823], which dealt with trespass and not nuisance is perhaps a peculiar beginning. However, during the case’s hearing, the judge remarked that nuisances could be abated by the individual suffering from the nuisance without notice to the person causing the nuisance, though notably not when overhang was onto a public roadway or the overhang was from a tree whose owner would routinely tend to their trees themselves. The judge also remarked that permitting branches to overhang into a neighbouring property was a “most unequivocal act of negligence”, though caution must be exercised here as labelling overhang as negligent is lurking at the threshold of what could be considered appropriate for the situation. Instead, such overhang is referred to as nuisance, as outlined in the judge’s preceding comments. Building upon this ruling, the case of Rylands v Fletcher [1868], even though not to do with trees, set the precedent for foreseeability, and therefore because boundary trees will foreseeably encroach, via their branching crown (and roots), onto neighbouring land, the tree owner must, in readily recognising this, ensure the nuisance associated with their encroachment is abated. If not, if anything “mischievous” were to arise (including solely from the overhang detracting from the neighbour’s enjoyment of his or her land), the tree owner would be held liable.

 

The case of Earl of Lonsdale v Nelson [1823] was, at the Court of Appeal, considered in some detail during the case of Lemmon v Webb [1894], where the claimant, who owned a few large trees, consisting of oaks and elms, growing amongst a hedgerow on his property, filed a claim against Webb for damages when Webb cut off some of the branches to his boundary line without prior warning. In this instance, there was absolutely no question that Webb did indeed have the power to cut back the overhang, though discussions did take place of whether Lemmon had to be informed of such an action. Initially, Lemmon won the case with regards to this matter, though at appeal that was overturned. However, the judge at appeal did recognise that, particularly if trespass must occur for overhang to be removed, then the owner of the trees be informed prior to the works being carried out – though the judge did not mandate such a course of action, and thus there is no actual need to inform the owner of the trees if a neighbour seeks to remove overhang. All that is required is they prune the tree with “reasonable care”, and the removed wood (and leaves, flowers, etc – depends upon the time of year) is offered back to the tree’s owner as it was removed from the tree (who has the right to refuse them back, if they so desire). Such a precedent was established in the Mills v Brooker [1919] case.

 

Overhanging branches from a red horse chestnut (Aesculus x carnea). Some lower ones have been pruned back.

 

Later, in Smith v Giddy [1904], a slightly different angle of approach could be seen. The claimant was contesting how Giddy’s trees were overhanging onto his property and impacting adversely upon the growth of his fruit trees. The judge ruled, in the case prior to it going to appeal (of which the outcome is not known), that if the trees are not doing any damage, then it may be up to the claimant (plaintiff) to abate the nuisance by cutting back to the boundary line. Only when overhang is actually causing damage is there a need for action on behalf of the grower of the trees, as in such a case one cannot expect the neighbour to fund such remedial works to ensure his or her property is once again free to a damaging agent.

 

More recently, courts seem only to rule that a tree is a nuisance if harm is being caused (stemming back from the case of Lemmon v Webb). Elliott v Islington LBC [1991] did come close to ruling a tree can be a nuisance merely for overhanging a property, though ultimately did not accept such a precedent. Instead, where overhang is not causing harm, it can be removed by the neighbour. Such a stance was also adopted by the judge in Perrin & Anor v Northampton Borough Council & Ors [2006], where it was ruled that “the owner of the land who has suffered the encroachment has a right to remove the overhanging boughs“, and also ruled in Delaware Mansions Limited & Others v Lord Mayor & Citizens of The City of Westminster [2001], where the judge remarked that overhang can be abated by the neighbouring land owner.

 

In terms of who can remove overhang, Read v J Lyons & Co [1947] stated that, and as subsequently re-affirmed by Hunter v Canary Wharf Ltd [1997], action of nuisance abatement can be undertaken by any person or persons who are the owner(s) of occupier(s) of the land affected by overhang. Overhang cannot however be removed by guests, lodgers, employees, or family members who do not have exclusive possession of the land affected. In the latter case of Hunter v Canary Wharf Ltd [1997], it was also ruled that nuisance can be divided into three categories: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land, and (3) nuisance by interference with a neighbour’s quiet enjoyment of land. The encroachment of branches is typically, though not always, cited under the first reason.