daltontrees

Cherry Laurel Prunus laurocerasus

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.

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.

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.

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.

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.

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.

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. ?

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?

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.

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.

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.

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.

I agree about the needs of the planet, humans are just deluding and humouring themselves until it is too late. The point is though that Cuncil can only do what they are a loowed to do or have to do under legislation. They don't have to make morality decisions about trees. It's not about overriding need for development and it's not about saving as many as humanly possible. It's about presumption in favour of development against public amenity needs. It's a poor system, but tit's the one we have. The deluding and humouring humans that need ot be persuaded are politicians. Quite!

Don't praise him to us, tell his boss and every Councillor you meet.

Nice to hear something good about TOs. Our local TO started a year ago, he was thorough and quick and helpful. 6 months later he was bogged down in stuff, he's still helpful but you're in a long queue. That's what happens if you're anyway good in local government, the bureaucracy catches up with you and grinds you down, plus because you're helpful and competent you get given or take on more and more until you're working at the same pace as all the rest.

I have tried and failed. I think there was something similar to this on Arbtalk a couple of years ago, no-one could get it.

Just seen the extra pic. 500 to 1

100 to 1 it's an Italian Alder (Alnus cordata).

Not quite true, Council has a duty to ensure, whenever it is appropriate, that provision is made for the preservation of trees. It needs to be appropriate. Only then do they have a duty. If so, the Coucil may require a BS5837 survey, AIA and tree protection plan. If they don't ask for one, you don't need to provide it.

It's a turkish hazel. Whter demand is based on mature height. Yours looks close to maxed out. Engineer advice based on Elm is in appropriate. Besides, if it's a street tree, water demand resulting in subsidence would be a legal nuisance, which could be grounds for abatement. It would be a very extreme view for consent to be refused based on the argument that approval would result in the need to remove the nuisance i.e. the tree.

What a miserablely small amount of land to leave for such a big tree to struggle on in.

Wow, that's not got long for this world!

It's beside a minor road leading to a static caravan park. The potholes are so bad that cars go past at less than walking pace (I had to invent a new QTRA target value). I have recommended taking it down to 6m. There's a lot of woodpeckers in the area and it would be good habitat for them and smaller birds to feed on. And seeing as you mention it, a question. It is reallly really goosed with K.deusta at the base, can't reallly tell what the Ganoderma is up to in isolation. I am a wee bit concerned abut it being top-heavy even if reduced toa pole. Do you think there is any benefit in these situations of really really distressing the pole round the top to accelerate decay? I suspect the top will remain mostly sound and heavy long after the bottom is mush, and it could fall over onto the road in years to come. I'd rather keep it tall than go for a 3m pole.

Darn, David, you beat me to it by a minute or two.