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daltontrees

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  1. daltontrees

    Over wintering chainsaws

    That doesn't seem right Gary, it's a 2 stroke engine so the oil is in the fuel and reaches the piston rings on the very first stroke. A good trick I got fro a lawnmower manual was just before you hibernate your engine, remove spark plug, put in teaspoon of oil, replace plug. It smokes a bit when you start it in spring but you're more or less guaranteed good lubrication of the piston ring when the engine is bone dry.
  2. daltontrees

    Emergency Tree Works on Local Highway (not a Trunk Road)

    s.41 is just the general duty to maintain the highway. s.130 is protection of public rights. As you say, ther eis no cost recovery mechanism, and those sections are not relevant to your situation. I'd be asking the Council to think again. They can't enforce a debt if they have no legal right to recover expense.
  3. daltontrees

    Id please

    Cherry Laurel Prunus laurocerasus
  4. daltontrees

    Emergency Tree Works on Local Highway (not a Trunk Road)

    Haud oan, I think I've found something. S150 of the Highways Act. (4)Where they are under a duty to remove an obstruction under subsection (1) above, a highway authority may— (a)take any reasonable steps (including the placing of lights, signs and fences on the highway) for warning users of the highway of the obstruction; (b)sell any thing removed in carrying out the duty, unless the thing is claimed by its owner before the expiration of 7 days from the date of its removal; (c)recover from the owner of the thing which caused or contributed to the obstruction, or where the thing has been sold under paragraph (b) above, from its previous owner, the expenses reasonably incurred as respects the obstruction in carrying out the duty and in exercising any powers conferred by this subsection, but so that no such expenses are recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction. There you go, if you as land owner had an inspection regime in place and could not have reasonably foreseen the branch failure, I think you could see off a claim for expenses. I would.
  5. daltontrees

    Emergency Tree Works on Local Highway (not a Trunk Road)

    This is an interesting one. I can't see naything in the Highways Act that empowers Councils to recharge for removing fallen branches. Therea re powers to remove dangerous ones still attached to trees, but it is not unlawful to allow a branch to grow over the road. Indeed, it is often the case that the Council owns only the solum of the road and not the land underneath it. If you ignore for now that it's a highway, it is no different from any typical encroachment situation. Foreseeable harm would leave liability for negligence, but otherwise it's damnum fatale. But it's a highway. The Highways Act allows removal of things deposited on highways, structures built on highways and so forth, but I see nothing about things falling unforeseeably on a road. It's a difficult topic to know if summer branch drop is foreseeable, but if it's not then the Council has to have statutory powers to recover the expense of removing an accidental obstruction. I've never seen such authority. You really ought to ask the Council what powers it's using to require payment from you. Please do this and report back. I'm sure we'd all like to know the answer.
  6. daltontrees

    Seeking advise from LA tree officers

    You've lost me there. Surly it's open to a tree owner to chop an encroaching root at the boundary so as to arrest or prevent the nuisance on adjacent land? It only becomes more complicated if there's a TPO and the abatement has to be justified as 'necessary' so as to take advantage of the 'nuisance' exclusion, and thus there is an obligation to consider alternative solutions.
  7. daltontrees

    Seeking advise from LA tree officers

    Ahh, I meant to add, this should become the go-to case for decisions about whether the 'nuisance' exemption for TPO or CA trees is being exercised correctly.
  8. daltontrees

    Seeking advise from LA tree officers

    O what the heck, here's the whole relevant section form the Network Rail case. I would summarise as follows the present principles of the cause of action of nuisance. First, a private nuisance is a violation of real property rights. That means that it involves either an interference with the legal rights of an owner of land, including a legal interest in land such as an easement and a profit à prendre***, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession: Hunter v Canary Wharf Ltd [1997] AC 655, 687G—688E (Lord Goff citing F.H. Newark, ‘The Boundaries of nuisance’ (1949) 65 LQR 480), 696B (Lord Lloyd), 706B, 707C (Lord Hoffmann) and 723D-E (Lord Hope). It has been described as a property tort: D. Nolan, ‘‘A Tort Against Land’: Private Nuisance as a Property Tort’ in D. Nolan and A. Robertson, Rights and Private Law (Hart Publishing 2012). Secondly, although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them. In Hunter at 695C, for example, Lord Lloyd said that nuisances are of three kinds: (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 his land. The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case law. Thirdly, the frequently stated proposition that damage is always an essential requirement of the cause of action for nuisance because nuisance is derived from the old form of action on the case must be treated with considerable caution. As to the proposition, see, for example, Lemmon v Webb [1894] 3 Ch 1, 11, 21, 24; Davey v Harrow Corporation [1958] 1 QB 60, 71; Hunter at 695D; and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321, [15] and [33]. It is clear both that this proposition is not entirely correct and also that the concept of damage in this context is a highly elastic one. In particular, interference with an easement or a profit à prendre is actionable as a nuisance without the need to prove specific damage: Harrop v Hurst (1868-69) LR 4 Ex 43, 46-47, 48; Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343, 349-350. Furthermore, in the case of an artificial object protruding into a claimant’s property from the neighbouring land, Mr David Hart QC, for NR, accepted that the claimant has a cause of action in nuisance without proof of damage. Although McNair J said in Kelsen v Imperial Tobacco Co [1957] 2 QB 334 that an advertising sign erected by the defendant which projected into the airspace above the plaintiff’s shop was a trespass and was not capable of constituting a nuisance, he so held without any reference to the previous authority to the contrary in Baten’s Case (1610) 9 Co Rep 53b and Fay v Prentice (1845) 1 CB 828 and so Kelsen must be considered per incuriam in relation to that issue. So far as concerns such nuisance from encroachment by an artificial object, the better view may actually be that damage is formally required but damage is always presumed: Baten’s Case; Fay v Prentice at 841. That, in itself, shows both the artificiality and elasticity of any requirement of damage for the purpose of establishing nuisance. It is also well established that, in the case of nuisance through interference with the amenity of the claimant’s land, physical damage is not necessary to complete the cause of action. To paraphrase Lord Lloyd’s observations in Hunter at 696C, in relation to his third category, loss of amenity, such as results from noise, smoke, smell or dust or other emanations, may not cause any diminution in the market value of the land, such as may directly follow from, and reflect, loss caused by tangible physical damage to the land, but damages may nevertheless be awarded for loss of the land’s intangible amenity value. Reflecting the fact that the cause of action is one for interference with property rights, loss of amenity value and the right to claim damages for it does not turn on any exceptional sensitivity or insensitivity of the person entitled to exclusive possession: Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455 at [36]. What is relevant is the objective effect on the amenity value of the land itself, and it is that effect which satisfies any requirement there may be to show damage. Provided, by reference to all the circumstances of the case and the character of the locality, and according to the objective standards of the average person, the interference with amenity is sufficiently serious, there will be an actionable private nuisance. Fourthly, nuisance may be caused by inaction or omission as well as by some positive activity. An occupier will be liable for continuing a nuisance created by another person if, with knowledge or presumed knowledge of its existence, he or she fails to take reasonable means to bring it to an end when they had ample time to do so: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 894. An occupier will also be liable if he or she fails to act with reasonable prudence to remove a hazard, whether natural or man-made, on their land of which he or she was aware and where it was foreseeable that it would risk damaging their neighbour’s land and goes on to do so: Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust For Places of Historic Interest or Natural Beauty [1980] QB 485. [JM this last sentence appears to me to be liability in negligence rather than nuisance] Finally, the broad unifying principle in this area of the law is reasonableness between neighbours (real or figurative): Delaware Mansions at [29] and [34]. You'd need to read the whole thing to see how it pans out in practice. It's a Japanese Knotweed case, but the court seems to have gone out of its way to state the generalities of the law too, and much of this relates to trees.
  9. daltontrees

    Seeking advise from LA tree officers

    Paul, I think that's oversimplistic. The law recognises the dilemma that if tree owners were responsible for the encroachment and minor difficulties caused by tree roots and branches we would live in a treeless world. The courts have been reasonably consistent over the last century in setting a threshold below which damage and encroachment is not 'actionable' i.e. self-abatement is a remedy to the affected landowner but the courts would only order payment of damages and/or abatement if the encroachment constitutes a legal nuisance and is sufficiently serious. The modern take on the law is set out in Network Rail v Williams and Waistell. Worth a look for many reasons but it includes a suggestion by the Master of the Rolls that the requirement for damage in an action as stated in Lemmon v Webb over 100 years ago is 'obiter', which in this situation means 'wrong'. arbgirl92, I'm not a TO.
  10. daltontrees

    PICUS

    If LA's want to build up a beer interpretation of what's going on, they just need to ask Arbtalk any day after 5pm. 😄
  11. daltontrees

    Tis the season to see Fungi, fa la la la la....

    First one looks like Phaeolus schweinitzii to me. Second looks like a couple of intergrown Boletes. Are they really on the Beech or on top of it? Third one could be Amanita rubescens, maybe too early to tell apart from A. Pantherina?
  12. It's not a Spruce, that's for sure. It's not even family Pinaceae, I'd say it's Cupressaceae. Might even be a Wellingtonia Sequiadendron giganteum. Have a closer look.
  13. daltontrees

    Id help

    I have my doubts about Combretum. Its fruit is 4 sided, the distinctive feature of all the Order Myrtales. The picture is 5 sided. Plus the leaves are wrong for Combretum.
  14. daltontrees

    What fungus? And is the tree dead?

    No I don't know without seeing it in context. But it looks big and leaning toward the house and the loss of stringth in buttress roots is on the house side. And Meripilus doesn't take prisoners. So what I mean is I wouldn't waste time checking if the Council is known to be slow to verify TPOs. And then 2 months for a TPO decision if the was one. They'd be out of their minds to refuse, even if there was a TPO. So to rephrase what I said, I'd assess the risk and if it was immediate and there was a risk of serious harm and the only way to remove it was to remove the tree, I wouldn't bother checking with the LA.
  15. daltontrees

    What fungus? And is the tree dead?

    I wouldn't unless a quick reply was certain, I'd take it down under the "urgently necessary to remove an immediate risk of serious harm" exception and notify them just in case it is TPO'd.

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