Case Law relating to severed roots?

[jacquemontii]

With reference to cutting roots back to a boundary to abate a nuisance:

 

"A tree owner may have a claim against his neighbour if the tree dies or falls over as a result of such action, although this has not been tested in court" Dobson, M, Patch, D (2005) Trees and Hedges in Dispute APN11.

 

"A person abating a nuisance must thus still exercise reasonable care, and failure to do so may lead to liability in negligence." Mynors, C (2011) The Law of trees, Forests and Hedgerows.

 

Does anyone know of any recent case law that has demonstrated the above, since these publications?

[daltontrees]

No court decisions on this so far that I know of, but it will be a very helpful decision when it comes along.

[jacquemontii]

Thanks Jules.

[Gary Prentice]

No court decisions on this so far that I know of, but it will be a very helpful decision when it comes along.

 

You can say that again! I was hoping somewhat was going to come along and provide a case.

[jacquemontii]

I'm reading around case law to understand its effectiveness in neighbour disputes and have got a bit bogged down with this issue.

 

So it would therefore appear that based on current case law, the right to abate a nuisance supersedes the consequence of a tree failure as a result of these actions, and that the courts would rule that a neighbour had the right to cut the roots that encroached on his property, even if this results in damage to the tree owner?

[Gary Prentice]

As I understand it (which may be wrong)

 

In the absence of statutory protection you can remove encroaching limbs and roots. But if this results in the death or failure of the tree, there is a risk that the neighbour has been negligent in their actions and may become liable.

 

So it's all about a reasonable degree of root/branch pruning, that doesn't deprive the owner of their tree (by killing it) or causes it to become unstable to a degree that it fails or has to be felled to prevent it's failure.

 

But as there is no case law (that I know about) it's all theoretical.

[Vespasian]

It doesn't take two minutes thinking on this subject to understand why there isn't any case law to look at on the subject....

 

Its the proverbial Gordian knot that no judge wants to untangle...

 

 

I'd hazard a guess, its always going to be an out of court settlement one way or the other....

In some regards this might be a good thing if your the root chopper, they threaten you with court. You tell em to go right on ahead.. they want to settle out of court at some point.. you tell em no way, you want a judge to settle in a court of law....

 

The barrister knows full well it ain't getting into no court room and settles for pennies...

[daltontrees]

I'm reading around case law to understand its effectiveness in neighbour disputes and have got a bit bogged down with this issue.

 

So it would therefore appear that based on current case law, the right to abate a nuisance supersedes the consequence of a tree failure as a result of these actions, and that the courts would rule that a neighbour had the right to cut the roots that encroached on his property, even if this results in damage to the tree owner?

 

Ahhh if it were that simple....

 

There is ancient common law in Scotland that would direct the courts in favour of the tree owner if the neighbour had damaged it out of spite, but I can see it being hard to prove spite. At least it demonstrates that since roman law you can't be an a*se and get away with it.

 

But more basically, I can see a case coming along someday where the courts will be forced to strike a balance between the right to self-abate by the neighbour and the tree owner being allowed fair warning of an impending hazard (risk). That is to say if a neighbour wants to cut back roots and should reasonably have foreseen that the consequence would be failure of the tree and harm or damage to the tree owner or his property, he would be negligent to cut the roots without first having given the tree owner notice of the likely risk arising. The duty of care we read about often isn't just a consequence of land ownership (that is just a special case of it), it's because we all have to act reasonably to everyone else in everything we do everywhere or run the risk of being found negligent if something goes wrong.

 

The dichotomy between right to self-abate and killig the tree is unresolvable as far as I can see. I pressed the issue recently on a debate on UKTC and hypothesised a servitude/easement prescriptive right of having tree roots in your neighbour's land. It is of course a legal impossibility and no such right exists. No-one disagreed with me, and while that in itself doesn't prove anything there were comments to the effect that it is probably unresolved as yet in case law.

 

My current advice to parties in such situations is that the neighbour should foresee harm/damage, give notice to the tree owner firstly requiring abatement and if no action is taken (after a reasonable time has elapsed) secondly warning of the foreseeable consequences of intended self-abatement. However tree law stands, I think that this model of behaviour would satisfy the basic tests of reasonability and form the basis of a defence. I would go further and suggest that there cannot really be any other competent solution in ordinary circumstances. And I would love to hear someone explain otherwise. For me it is the last great quandry of tree law, and it would be nice if it could be resolved without a fatality to bring it to court.

 

But it would be for anyone following this suggestion to satisfy themselves as to its soundness, I am not a lawyer and like anyone trying to be helpful on Arbtalk I cannot be held responsible for people taking up suggestions.

[daltontrees]

My daughter Heather wants me to do some smileys here, so here they are, chosen by her.

 

[Gary Prentice]

Ahhh if it were that simple....

 

 

 

But more basically, I can see a case coming along someday where the courts will be forced to strike a balance between the right to self-abate by the neighbour and the tree owner being allowed fair warning of an impending hazard (risk). That is to say if a neighbour wants to cut back roots and should reasonably have foreseen that the consequence would be failure of the tree and harm or damage to the tree owner or his property, he would be negligent to cut the roots without first having given the tree owner notice of the likely risk arising. The duty of care we read about often isn't just a consequence of land ownership (that is just a special case of it), it's because we all have to act reasonably to everyone else in everything we do everywhere or run the risk of being found negligent if something goes wrong.

 

The dichotomy between right to self-abate and killig the tree is unresolvable as far as I can see. I pressed the issue recently on a debate on UKTC and hypothesised a servitude/easement prescriptive right of having tree roots in your neighbour's land. It is of course a legal impossibility and no such right exists. No-one disagreed with me, and while that in itself doesn't prove anything there were comments to the effect that it is probably unresolved as yet in case law.

 

My current advice to parties in such situations is that the neighbour should foresee harm/damage, give notice to the tree owner firstly requiring abatement and if no action is taken (after a reasonable time has elapsed) secondly warning of the foreseeable consequences of intended self-abatement. However tree law stands, I think that this model of behaviour would satisfy the basic tests of reasonability and form the basis of a defence. I would go further and suggest that there cannot really be any other competent solution in ordinary circumstances. And I would love to hear someone explain otherwise. For me it is the last great quandry of tree law, and it would be nice if it could be resolved without a fatality to bring it to court.

 

But it would be for anyone following this suggestion to satisfy themselves as to its soundness, I am not a lawyer and like anyone trying to be helpful on Arbtalk I cannot be held responsible for people taking up suggestions.

 

Can you reasonably 'require abatement' if no actionable nuisance was occurring?

 

This is the part that I can't determine in my own mind. The nuisance has to be actionable for a CC Judge to order it's abatement and if that leads to the tree loss - so be it.

 

But if you warn the owner that you're going to cut the roots because you don't like them in your garden, even though they are not causing a legal nuisance and only a nuisance in the ordinary sense, you can safely (possibly) force the trees removal if it results in death or instability.

 

To my mind, a judge wouldn't order abatement if the roots weren't causing damage yet by forewarning the owner, common law allows it. A Gordian knot indeed.

 

I feel like Heathers Marchmellow is jumping around in my brain thinking about it:confused1: