Case Law relating to severed roots?

[daltontrees]

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:

 

The marchmellow says it all!

 

Can anyone imagine a situation where a nuisance would be actionable but would not give rise to foreseeable substantial harm or damage to the tree owner if self-abated by a neighbour? Or vice versa?

 

Or maybe it's as simple as this. Whether something is actionable only makes the difference between a neighbour (i) self-abating and not recovering the expense of doing so or (ii) asking a court to order the tree owner to do it at the tree owners expense? The question of risk to the tree owner would therefore be an academic one, in the first example the giving of notice and the foreseeability of harm being incumbent on the neighbour, and in the second example being implicit in a court order.

 

This was what I thought earlier while Heather pestered me for emoticons. I should have said so.

[Jon Heuch]

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.

 

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.

 

This is similar to both my advice and actions.

 

I would add that it is useful to give a specific date to the tree owner when the roots will be cut and suggesting to them that it might be useful if their arboricultural consultant attended on that day to make their appraisal of tree stability. Depending on the circumstances it is also useful to let the tree owner be aware that they will be responsible for any consequences of tree failure as a result of their inaction. This is likely to pour petrol onto an inflamed neighbour dispute so words need to be chosen carefully.