daltontrees

Yes but remember you would only have to embark on such a journey if the local authority also had the nerve. It has to persuade its members and then the prosecution service of the legal basis for a prosecution. Which, on reading the plain english of teh legislation, it would fail to do. I believe Mynors to be right on this. As he suggests, the legislation cannot prevent someone from doing something that the common law obliges him to do i.e. causing legal nuisance. Unless you're the scottish parliament, but that's a different story.

This vertical fissuring may be (probably is) as a result of the insect Cryptococcus fagisuga (Beech Scale or Felted Beech Coccus).

Well, it is definable in the sense of it being the prevention of the rightful use of your property, but the list of things that could prevent it is elastic and the degree is always going to be important in seeing whether a court will entertain an action. It becomes even more difficult in deciding to exercise the TPO 'nuisance' exemption, since the only case on that says that it can only be used where the nuisance is 'actionable'. And considerable doubt remains on the correctness of that judgement. Time (and someone's deep pockets) will tell. Personally I don't see why everyone focuses so much on 'actionable' when the exemption allows not just for abatement of nuisance but for 'prevention'. In the dictionary in my head that means before it becomes a nusance, actionable or otherwise. A stich in time saves nine!

The highest civil judge in the land took the opportinunity in a recent japanese knotweed case to try and clarify the current law on nuisance. The most relevant bit of the decision is this 1. I would summarise as follows the present principles of the cause of action of nuisance. 2. 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). 3. 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. 4. 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. The most relevant bit for aerial tree encroachment is the third paragraph, but I have left in the 4th to underline that nuisance is not always damage, as had been thought for a long time. There is also wide application of the nuisance principle, crossing over (no pun intended) into negligence where root damage and clay shrinkage are involved. Full case citation if anyone wants it let me know.

Having read the RHS and Arb Association guidance, I'd say they're both based loosely on the way the law was stated in Charles Mynors 1st Edition. The 2nd edition is less circumspect and less vague about the neighbour's rights. I wouldn't commend the RHS or AA summary of the law to anyone other than as a first port of call. If a situation gets heavy, I think the guidance will be found to be inadequate in some aspects. Whne I have had to deal with abatements I have not set foot on the tree owners land but have entered their airspace from the neighbours side only for the purpose of anchoring myself safely. I think that that is a perfectly reasonable act, whatever the guidance says. I would also use a ladder footed in the neighbour's land. If push came to shove as it sometimes does the neighbour could switch from self-abatement at his own expense to court action to force the matter at the tree-owners expense on the basis that refusal of access makes it too expensive or dangerous for the self abatemente option.

I believe the principle is that sending the arsings back over the fence against the tree owner's wishes is fly tipping. But I can't see the law wanting anything to do with it. A rally of brash tennis could then ensue and continue indefinitely. Such fun!

if the encroachment was deemed a nuisance, the court should award an injunction (England) or interdict (Scotland), which would require the tree owner to abate the nuisance at thier own expense. Failure to comply would be contempt of court, punishable with fines and eventually imprisonment. A court might find a non nuisance encroachment to be de minimis (i.e. too trivial for the law to intervene), and if so there would be no award. or, de minimis but award only costs.

I'd just add a coupel of things. Firstly a TPO would not necessarily stop the pruning. There is a statutory exemption from the protection offered by a TPO if (and to the extent that) pruning is to prevent or abate a nuisance. Pure encroachment that is not preventing the neighbour making reasonable use of their property might be protected by a TPO, but if there is any nuisance aspect, the TPO is ineffective. Secondly, the neighbour cold make the tree owner pay for the removal of branches, but it would take a court action to do so (or a negitiation in lieu of this). A court action that succeeeded woudl also cost the tree owner all the legal costs of the neighbour, so it's not a comfortable starting point for the tree owner in any negotiation.

And where is this?

That was in Sturges v Bridgman

Fair enough, but if the distinction between rustic and urban is unique to roman law and given that english law is not derived from roman law, it would be a matter of independent evolution. Which is an interesting prospect. You are right about Sturges, it very much is about the character of teh area as to what constitutes nuisance. A field of manure is one thing in the country and another in suburbia!

Clearly you haven't followed the thread. If you had you would have seen that I answered the OP's question a few posts in, and succinctly. The OP has subsequently disappeared, and everything since then has been harmlessly indulging the admirable quriosity of a fellow Arbtalker, on a subject that I happen to know quite well. It's not waffle, it's correct and mostly neeeded to explain why the answer to AHPP's question is not simple. If you know the law you will realise that. Instead you come along (your second post ever on Arbtalk!) to anonymously insult strangers, without making a single useful contribution. I don't give a f*&% how I come across to you, but if you think you can answer AHPP's question "What's the earliest caselaw that accepts it as the law?" in one or two sentences go right ahead. Make a useful contribution. Waffle as much as you like, but it'd better be right. Welcome to Arbtalk.

I don't see what Sturges has to do with it, it related to moving to a nuisance and whether the source of nuisance could say that the neighbour had thereby forgone the right to prevent the nuisance. Which of course he hasn't. That in itself is consistent (but for slightly different reasons) with Lemmon v Webb which said the nuisance never gains prescriptive right to be continued. And is Sturges not an english case anyway? There are still some significant differences between scots and english law on liability, which without doubt originate from differences between roman and medieval law. Are you really interested in whether scots law and the right to abate nuisance is founded in rustic or urban roman law? That's quite a subtle distinction to be making. As it happens, the court of session over-rode the roman law on the basis that in italy the shade from trees is probably a good thing but in scotland it's not. In making the distinction it relied on a french institutional writer. We're gettign in pretty deep here, and wheras I love all this stuff I am curoius why you want to know, or if this is in fact what you wnat to know.

Either way, doesn't look like sycamore. The commonest hosts for D.c. are ash and beech.

The authority and process to remove a TPO depends what country you are in.

If a branch is an 'issue' to a neighbour it probably comes under the 'prevention or abatement of a nuisance' TPO exemption and doesn't need permission.

Puts me in mind of Daldinia concentrica at a very early stage. Are you sure that's Sycamore, the bark looks more like ash, which would be the most common host for Daldinia?

Only that I wasn't sure whether roman law treated urban and rustic trees the same in terms of rights to cut back.

There's not much to add. First a correction - the twelve tablets were carved in wood, not stone, then fixed to a wall. Unfortunately all that survives of them is a few quotes from them in later roman legal cases or writing. Roman property was classed as either urban or rustic, depending on whether they related to buildings or agricuture. I genuinely don't know whether the right to cut back to a boundary applies to both but it has been suggested that urban owners were obliged to keep their trees pruned back to a height of 15 feet. This may not have been so important in the rustic context, and there may have been a different rule. There was a system of penalties which were quite elaborate. But I think the most elaborate roman punishment of all, reserved for killing your father or a close family member, was to be sewn into a leather sack with a monkey, a cock, a viper and a dog, and thrown in the sea. Permanently. Yes, they did this. But even the romans must have thought this too elaborate (or maybe monkeys were getting hard to come by in the distant corners of the empire), and later (4th century) softened a bit and preplaced this punishment with being burned alive. And people these day bleat about human rights when somebody says boo to them! And back to the original point, as I have said people (and tree people in particular) seem to be unhappy to state the law unless ther has been a specific tree case in almost indentical circumstance to their own, but good law, tee best law, has no case law because it is so clearly understood, so innately fair and so easily applied that it needs never to come to court. I would encourage anyone not to start with case law but to understand the general principles of natural rights in property, negligence and nuisance. From these stem everything. Land ownership is from the centre of the earth to the top of the sky. Encroaching branches prevent you using your property, so that is nuusance, and if damage is done by it, that is negligence. Everything else is fine detail.

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least. The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables. English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed". In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries. Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

I agree except about killing the tree, there is no such restriction, this is settled law since the dawn of time, Killing it does not constitute criminal damage if it is to abate a nuisance and is done without malice or spite.

1. I don't recognise the species. 2. There's no legal limit on proximity of planting. 3. Tree encroachment can't be classed as criminal damage. However, it can (nad your case probably is by now) nuisance and negligence, two closely related but different legal principles. 4. Whether your house coudl be damage d depends on a lot of complex factors such as species, foudnation depth, climate, soil type, foundation depth and so on. Put the Council on notice (in writing, nice and clear, no waffle) that you consider the encroachment to be nuisance attracting liability and invite them to deal with it promptly, reserving the right to deal with it yorself by cutting back any roots or branches across the property line. You shouldn't have to put a root barrier in, but it could help with future root encroachment.

Usually property is covered under public liability. Arborisk that I have, for example, is very clear about this in its Public and Products Liability policy.

BGS I think withdrew its online map site but replaced it with a slightly (Beta) better one. Here's the one I use https://geologyviewer.bgs.ac.uk/?_ga=2.264636559.1060876221.1657217743-1316232915.1657217743

Annex A of BS5837 also provides general guidance