daltontrees

There is one case that indicates tha the nuisance needs to be 'actionable' but the author of Law of Trees Forests and Hedges (Mynors) believes that this will be challenges successfully in time and show that there is no 'actionable' test to be applied. It stands to reason. You can 'prevent' a nuisance, which means stopping it before it becomes a nuisance (therefore it is quite minor) and you can 'abate' a nuisance once it is not so minor any more, so why would the law create an in-betweeen situation where it is beyond minor but not bad enough to be major (actionable)? One you get in to the concept of 'actionable' it is impossible to get any clear sense of what is supposedly allowed. It is literally a single word, without any useful definition, except perhaps to indicate that a court 'action' could be raised. It does not clarify whether the 'action' would have to be succesful. I'll go into that a bit more if you want, but it's murky. And it would just be my reading of the law, which although obsessive carries no authority on the subject. The most honest outcome would be for the industry to conclude that we know tha twe don't know. That's way better than polarised views based on glib interpretations and half-remembered observations on both sides.

There's no such thing as 'compliant with BS3998'. It's industry best practice. One of the commonest words in it is 'should'. Not 'must'. And it's opening sections state that "This British Standard takes the form of guidance and recommendations. It should not be quoted as if it were a specification and particular care should be taken to ensure that claims of compliance are not misleading. Any user claiming compliance with this British Standard is expected to be able to justify any course of action that deviates from its recommendations." It is therefore possible to comply with it by going against its advice if there is a reason for it. So you could state that" The customer was advised that the extent of pruning he requested would be against the advice contained in BS3998 but he wished to regain use of his garden anyway so the pruning went ahead on that basis." Plus, in a TPO or CA situation there is an exemption from control for any works that are to prevent or abate a nuisance. No consent or notification required.

Looks like spruce, and I'd be havign a close check on Dendoctronus micans. notifiable I think.

The disc with the grey centre is looking like Kd but too early to tell. I found somehting similar on some absolute mush of deadwood on a woodland floor yesterday, I was gobsmacked to see Kd on something so far gone. But it was in teh middle of a stream and I couln't safely confirm.

If there is a succinct summary of the law it might be this - A man is not bound to permit a neighbour's tree to overhang the surface of his land, however long the space above may have been interfered with by the growth of the tree. Nor can it be doubted that if he can get rid of the interference or encroachment without committing a trespass or entering upon the land of his neighbour he may do so whenever he pleases, and that no notice or previous communication is required by law. But, in order to lawfully abate a nuisance emanating from your neighbour's land, the House of Lords (in Lagan Navigation Co) specified the following requirements: ■ You must give notice to your neighbour unless notice is not necessary (for example, where you cut off the branch(es) of a tree overhanging your property, and this would not involve trespassing onto your neighbour's land (see Lemmon v Webb (1895) AC 1). ■ You must not do any unnecessary damage. ■ If there are two or more ways of abating the nuisance, you must choose the least mischievous way.

OK, I really just meant which case, which I now know is Burton v Winters.

Where did you get this Llloyd LJ excerpt?

We are quoting the same case, but Lagan needs to be read carefully as it dealt with an abatement rather severely and the abater probably shouldn't have taken the matter into his own hands. That is why I mentioned that that major nuisances are better resolved by getting a court order.

The answer is that the answer is not known. This sometimes happens in law when the situation has not been fully explored by case law. In such situations it is necessary to examine such case law and uncontested principles as there are and then project them into the scenario. A sort of joining up of the dots. I have read Dr. Mynors Law of Trees, Forests and Hedges cover to cover a couple of times and he does not go near this question. Uncharacteristically for him, he shies away from it by suggesting that arb advice be sought before heavily pruning an encroaching tree. He makes a vague reference to liability for additional costs if the pruning is too clumsily done, but he does not go anywhere near saying that there would be liability for harm or loss of the tree. There's a specialist tree lawyer Sahra Dodd, I have put the question to her too but apart from a vague reference to criminal damage she has declined to answer. Disssatisfied as I am that such a common dispute has no clear answer, I have done what I can over the years to try and get to the bottom of it, on general principles. dangb93 covers the core case law. Lemmon v Webb in particular is extremely clear that an encroaching tree owner never gains the right by passage of time to keep the roots or branches in another's property. Repeat, never. So it's clear to me and should be to all that if the encroached party did not have the right to cut back to the boudary it would defy the principle in Lemmonv Webb and indeed the very concept of ownership of land and would defy the legal principles of tort, nuisance and negligence. All this must be modified though by the general principle of not foreseeably subjecting anyone to danger. So if you sneak out in the dark and detabilise the tree such that it falls its owner next door, you would be in the wrong. But if you tell him you're going to prune it and that he would be well advised to look out for it being potentially dangerous, in that way you are not exposing him to risk because he has the opportunity to foresee it himself and do something about it timeously. This is all consistent with what case law I have found on analogous situations. Someone always trots out the 'criminal damage' argument, but the criminal damage legislation does not create any new liability for someone exercising a common law right to abatement, so it is irrational to say that damaging an encroaching tree is a criminal act. But the criminal damage legislation might be the source of the spurious idea that the abater would be liable. it is absolutely unthinkable that it has overturned Lemmon v Webb. I don't see the relevance of the 'ex turpi' principle here. The most succinct reference in case law I can find that covers what can and can't be done is this "where there are two ways of abating a nuisance, the less mischievous is to be followed". There is some suggestion that major nuisances are better resolved by getting a court order (injunction) but this conflics with the well-established principle of the right to self-abatement. So if someone built a garge on part of your garden, it's best not just to knock it down, get a court order instead. But an encroaching tree is a whole level of trivial below that. The dots join up in my mind to say that self-abatement is permitted even if it results in the loss of the tree, as long as the abater acts reasonably. The law will not protect someone who acts to deliberately to spite a neighbour.

You asked. I'm not out to persuade anyone. I'm pretty sure you're wrong, though. Supervision has to include being satisfied tha the supervisee (don't know if that's an actual word) knows what they're doing before you let them start, and stopping them doing things wrong before there is an accident or before bad habits set in, and explaining how to do it right and why. Sounds like training to me. Certainly not enough for the supervisor merely to be competent himself. That's not my opinion, that's my interpretation of the Regulation and of the midset of HSE inspectors.

I don't think it's deliberately ambiguous. It's more that it is impossible to be precise with only words. And a lot of tests arise from the common law concept of reasonability, probably the most important word in law. It is also desirable that rules are not overly prescriptive so they leave scope for adjustment to context and curcumstances. 'Practicable' is another important word, it denotes that it's no excuse to do a thing if it's cheap and easy and yields good results, and no obligation if its hard, expensive and with questionable returns. There is a societal iterest in allowing life and the economy to get on with things withut fear of being liable for every trivial and fantastically unimaginable harm situation. In H&S law and practice, risks can be categorised as acceptable, tolerable or unacceptable. There's no need to address the first, no excuse for not addressing the last, and a requirement to reduce 'tolerable' to 'as low as reasonably practicable', with I think an onus of proof that what has been done or not done to manage risk was appropriate in the curculmstances. So in the current example, say a groundkeeper has a permanently disfiguring cjainsaw accident, meaning being unable to work again. Let's say if the employer was found liable the compensation would be £250,000. Let's say that it probably wouldn't have happened if the guy had recieved proper training from an external organisation and had passed assessment. And that the cost of training and the exam would have been £1,000. So there's a multiplier of 250 times cost of risk to cost of prevention. That I think is a reasonable and proportionate cost for the employer. I wpoiuldn't want to eb an employer trying to argue that the cost of training was disproprtionately high relative to risk.

I just made it up. No, of course I didn't. PUWER Regulation 9.(2) Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. This suggests that the supervisor must not only be a competent user themselves but must be trained to train. It's not quite the same as being certificated, which at best would rely on the trainer remembering all that he was taught.

Consultancy is quite rewarding but you'd probably have to do a stint as a tree surveyor. HUGE difference between being the person who potters about collecting tree data and the one that turns up in court or Inquiries or standing firm while getting the hardrier treatment from the MD of a development company. But if you go for surveying, you might as well think long term to doing proper consultancy. It would be brain death on its own. I chucked a good salaried job to get into arb, thought I would work 4 days a week taking my time so that i would really only have to get through 3 days work in that time. No mortgage! A few years ago the sore bits all joined up in to one big sore body. Coming home for a quick dinner then off out to quote jobs, then going to the tip at 7am before meeting the guys on a site. It never ended. Sounds like you are not motivated to go it on your own as a contractor. It's exhausting getting started, and it never really stops. I gave up contracting when it got too much, I already had a LOT of survey work so the transition was easy. 10 years on I am well qualified and chartered and enjoying it except that I am doing 9 days a week so it's becoming tiring. A transition rather than a leap is a good idea. Maybe go 4 days a week and do some structured study the other day. Make a plan with dates and targets. Write it down to force yourself to make choices. The plan will never quite work out, but it is a start and you can review it as often as you feel you need to. I did this and it was priceless. It didn't go as planned, but I got there anyway. You cna PM me abut qualifications but be patient I am poor at seeing notifications.

The Asbestos Regulations and PUWER and MHSWR are all made under the Heath and Safety at Work Act 1974.

That sums it up, the training is compulsory, the certification is advisory. Lack of the latter, though, would put presumption of guilt on the employer, he would have to prove otherwise. Realistically, if someone does the course for another few quid they can do the assessment and get certificated. I'd be seriously worried about taking on an employtee who has done the training and hadn't done (or even worse, hadn't passed) the assessment. Certification and training will pay for itself within a week, maybe two. Might even result in higher wages.

But chainsaws need proof of competence. Not all other work types do.

The Provision and Use of Work Equipment Regulations 1998The Provision and Use of Work Equipment Regulations 1998. Reg 9 "Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. " Deemed compliance comes from the Approved Code of Practice that is slightly more specific and says that certification is required to evidence adequate training. "All workers who use a chainsaw should be competent to do so. Before using a chainsaw to carry out work on or in a tree, a worker should have received appropriate training and obtained a relevant certificate of competence or national competence award, unless they are undergoing such training and are adequately supervised. However, in the agricultural sector, this requirement only applies to first-time users of a chainsaw." So if one of the staff got hurt or worse using chainsaw, there'd be no defence by the employer. Does a golf course count as agriculture? No. Adequate supervision is defined, the supervisor needs to have been trained in training.

The AA document is merely paraphrasing Mynors in 'The law of trees, forests and hedgerows'. It's far from being as simple as either (a) cut back to the boundary with impunity or (b) don't cut back it if it will damage the encroaching tree. Case law says the first, popular opinion (if unsubstantiated and misconcieved) says the latter. Both are trotted out regularly, usually by people takign sides in a dispute.

Cyanide, not arsenic.

Damage may be related to a. subsidence due to inadequate foundations b. differential subsidence due to general drought conditions or c. subsidence due to dessication and shrinkage of clays due to tree water uptake. Or all three. The thing that jumps out of the report is that the foundation and BH2 is only 1 metre deep, but 2.1m deep at BH1. This differential alone may be enough to contribute to or be the cause of differential settlement. The shallowness of the BH1 foundation is the absulute minimum NHBC for the situation. But some calculations might show that the foundation is adequate for the distance and species of the trees. Another notable popint is that the borehole logs show the clays to be 'very sandy, very silty', which generally means low shrinkability. Whereas the inadequacy of foundations is not a complete defense to claims for subsidence damage, it may be a contributory defense. Essentially if the house had been built with inadequate foundations it could be for the building designer to prove that they made adequate provision for subsidence risk. Depends on the age of the house too. Based on the report provided, the case has not really been proven. there might also be a follow-up claim for foundation repair costs. There's always a risk that the tree owner is being taken for a mug to pay for stuff that is not their liability. Without independent advice and representaiton the tree owner might never know if this is happening. I hope the tree owner has building insurance. If so, pass the whole thing to the insurers asap. A substantial reduction wold only be effective if the trees are responsible and if it was repeated regularly. forever. Good useful and valuable advice costs money. Sounds like it is worth resisting tree removal initially, particularly as this wold look like admission of liability in a subsequent claim for foundation repair costs. Don't get formally involved is my general advice. And be careful what you share in public.

And it's free from most shops trying to get rid of it. IKEA flatpack boxes are the best though.

Cerioporus would be on a 'stalk', however short. This one appears to be hugging the tree as a bracket.

There's a difference between applying to remove a tree because you don't want it and applying to carry out development that will result in loss of (or risk of loss of) the tree. The former has low chance of succeeding but it depends on the Tree Officer, unfortunately many of them don't care about your living conditions and will stop you doing what you want with your own tree. The latter has some chance but you might be asked to build the dining room on a ring beam and piles so that the roots under it can be retained and irrigated. It can be done. You can only ask or apply. There is a right of appeal too, which if you live long enough might get you a different and more compassionate decision. Subsidence and heave are only really issues if you are in an area of shrinkable clays. They are not widespread in Sussex but there are some. Piling would probably eliminate the risk. The TPO reguations are clear that permitted development rights do not overturn TPO protection.

I see what you are saying but I don't think that's the right interpretation. The first part is removal/ uprooting/destruction while no exemption exists. The second is where an exemption exists. "is uprooted" still connotes a deliberate act rather than 'becomes uprooted', and the identical string of words shoidl probably be interptreted as in pari materia i.e. intended to serve the same purpose. But it's open to interpretation, unfortunately. That said, once a tree has blown over and is perhaps still alive, and is now a legal nuisance by blocking an access, the nuisance exception is still available to remove it. Such fun!

What part of UK (laws and policies vary)?