daltontrees

It's not immediately obvious. 1. Do you believe that anyone has the ability to maintain branches of his tree over another person's land? 2. Do you believe that leaving a tree dangerous because someone has exerised his right to get his space back by cutting back a neighbour's branches should be unlawful? If the answer to 1. is no and 2. is yes, how do you reconcile these answers, because one can't have both those answers? If the answer to 1. is yes, that goes against clear case law, and the answer to 2. doesn't matter. If the answer to 1. is no and 2. is no, and 2. is no, this is an impossible scenario unless the encroached party can be freed form negigence by warning the tree owner or getting the courts to order the tree owner to get rid of the problem, even if it makes the trees dangerous. Rights and duties sometimes conflict, but a duty can't trrump a right if there is a reasonable course of action that can reconcile the two.

" NRW said the felled trees were very mature and provided a valuable habitat for wildlife, so it would never have granted a licence for their removal. " Confusing. Is NRW the same as the Forestry Commission? The Commission felling license rules are statutory, and were designed originally to conserve national stocks of timber, not to preserve habitat. I know the Commission's role has evelved since then, but this doesn't seem an appropriate reason to refuse a felling license. If they want to preserve valuable habitat, is there a more appropriate legal basis than felling licenses? That said, it seems a good ruling.

Just quote the TCPA as you did in your OP. Availabe means available, you shouldn't have to make an appointment. You shouldn't even be expected to say what TPO you want to see, the Council has no right to requre you to disclose that.

To the original poster. General principle is that the owner of the adjacent land can cut back the branches himself without your permission. If the branches are interfering seriously with his use of the land, he could ge the courts to force you to do it or to pay for him to do it. So, he can do it himself at his expense or make you pay for it. Yopu need only agree to do it at your expense if you anticipat ethat you woud lose such a court case. It's a matter of how serious the encroachment of the branches is. If the footpath has been legally transferred to the Council, they could pursue the same remedies, cut them themselves or get the courts to make you do it or make you pay for it. If the trees are not a nuisance to the use of the footpath, it's hard to see how they woud successfully sue. If the footpath is just adopted by the Council, the land under it and the air above it may still belong to the 'developer, but since he can't do anything with land that has a public footpath on it he probably couldn't demonstrate loss of enjoyment of the land, and so probably couldn't sue. That leaves the question of what happens if the trees are left unstable. As you can see there is disagreement on Arbtalk about this, but my view is that if the developer cuts the branches back without warning you and the trees almost immediately fall over, he would be responsible for compensating for any harm or damage caused. It is also my view that if he warns you of the consequences and gives you a chance to prepare to get rid of the risk after the pruning has been done, the law is on his side. There's still a grey area. He may have to get the courts to tell you to remove a very serious encroachment and declare that the risk is then yours. Or he may be able to prune after warning you, without getting the courts to declare tha the risk is then yours. Either way, the law's on his side as long as the encroachment is serious. That said, to reiterate it's hard to see how he would have a case for removing the branches over a public footpath, even if he still owns the land tha the adopted path is on. I hope that helps.

A hypotheses was put forward and awaits challenge. I'll feel like such a twat if I'm wrong, but will accept the correction with humility.

Sorry Edward, I continue to disagree with you on this. Common law does not say that you can't crete a hazard, full stop. The acting reasonably and foreseeing harm, in my view, can be exercised by giving fair warning to the tree owner that the right to self--abatement may leave the tree unstable and allowing then time to take independent advice, anticipate the risk and deal with it in a timely fashion. It is a thoroughly established principle of law that branches and roots can't establish a right to be in someone else's soil or airspace just because that person tolerated it for a while. The roots and branches have never got the right to be there. The tree owner doesn't need to avoid it happening but he does have to accept the consequences of them being removed by the neighbour. Any other answer to this question is (i) a legal absurdity that conflicts with long-established case law (ii) a practical impossibility that society couldn't countenance. Gary's balcony analogy illustrates it well, up to a point. The difference with trees is that we all live in a world where trees do what they do, and encroach. This differs from the deliberate building of a balcony and supports on someone else's land. If it were a bulding that encroached, the remedy would not be self-abatement, it would be to get a court to declare that the balcony shouldn't be there and that the 'builder' should remove it on pain of contempt of court and the harsh punishments that follow from that. Otherwise it's a good analogy. The principle are the same, the remedy is just a bit different. I have in teh recent past admitted that the tree situation might require a court order for the tree owner to abate rather than the 'warn and then self abate' scenario. I adnmit that because unlike the rest of the logic in this there is no clear precedent, whichj would only be clarified by a case for negligence due to damage or harm caused by a 'warn and then self abate' situation. But the principle remains unassailable (it is not my principle, it is one of stare decisis). The encroacher can never acquire a right to encroach and must either suffer self-abatement or abate, even if the consequences are subsequent failure of the tree. Like the balcony, the only question is the nature of the remedy. And in turn, that might depend (as I may find time shortly to explain) on whether the encroachment is actionable or not. I implore anyone to explain why the aforegoing is incorrect. Not disagree with me full stop, but explain the logic and the legal standing of that logic. I am willing to be proved wrong and will admit it if I am wrong. But I continue to believe that we all could benefit from clarity and I present the argument for that objective alone.

This is largely a legal question, and if the original poster wants to confirm he is still interested in an answer I will have a shot at it.

Yes and no, it mught be the pointier leaved variety 'Otto Luyken'.

It looks a pretty close match to Alnus incana (Grey Alder). Defo not Elm.

See pic, I reckon the bark has been exposed about 12 or 13 years ago, when the section between the two red arrows was the putside of the tree. At the blue arrow I think I see the next few growth rings curved in where the tree was beginning to occlude the wound. It had just finished healing over, a miracl;e of nature, then someone has gone and chopped it down. The only thing that can really cause damage on a stem like that high up is another tree crashing against it. If that's what happened, it would have been a big impact and would probably have taken some branches with it, which could have caused cavitation and/or infection. I'd go with the tyloses idea, wiht phenolic substances created by the tree to make the dysfunctional vessels impenetrable to fungi. A lot of supposition, but as good as I can think of.

Impossible to ID for sure without a close-up

Ailanthus altissima, tree of heaven. An absolute weed in Basel at the southern tip of Germany.

Almost as unimportant as me saying that the saying is "the business" and that any corruption of that for comic effect is OK by me.

I only ever saw Aurora once, in Selkirk. It's young bark was distinctly pink, as was some of the leaf in the variegated leaf margins. I wasn't 100% sure of the ID, but it was near enough for the purpose of the survey and I didn't investigate further.

If it were me the sequence of elements would be pretty much as I have already set out. Generalities of shrinkable clays. Effects on structures if shrinkage or expansion. How trees (or removal of them) affect soil moisture levels. How adequate foundation design can counter these. Then the facts. The tree, the distance, the conventional assumptions about water uptake of this tree. Then the unknowns. Foundation type and depth. Presence or absence of clay soils. Construction date and tree age. Then the recommendation, which would start with finding out if shrinkable clays are present locally. Finding out if records exist of foundation type and depth. And only then, possibly an excavation adjacent to the building to ascertain soil type and foundation type and depth and to a lesser extent an idea of root distribution. And only then would it be possible to say with any confidence whther the risk of heave is acceptable. It is true there may never be a straight answer, but that's because it is impossible to see things uder the ground. An excavation is only a small random sample. But what I don't know is whether if this advice was ignored, and the owner had the tree removed, and then experienced damaging heave of the building, and then claimed off insurance (possibly denying having taken advice), would the insurer pay out? By rights the answer should be no. But as I say I don't know, becasue I have no experience of this scenario. It may even depend on the wording of the insurance policy. I can't say how much this would cost, I know what I would charge up here, but I'm not about to disclose my consultancy rates on a public forum.

The BS is not the law, it is guuidance. You haven't said whether you are trying to get planning permission. If you are, the Council will probably want strict compliance with BS5837. If so, and permission was refused because of 'incursion' and no justification is given for the incursion, then an appeal would probably fail. 5837 says - The default position should be that structures are located outside the RPAs of trees to be retained. However, where there is an overriding justification for construction within the RPA, technical solutions might be available that prevent damage to the tree. If operations within the RPA are proposed, the project arboriculturist should demonstrate that the tree(s) can remain viable and that the area lost to encroachment can be compensated for elsewhere, contiguous with its RPA, and propose a series of mitigation measures to improve the soil environment that is used by the tree for growth. There is no magic number. I hope that answers the question, although I was hesitant at first for rewarding your use of the ghastly and insistent phrase 'hit me back'. Next time it should at least be hit me back please.

Definitely! I have a picture from yesterday of a similar size tree that was felled urgently on my advice, and I saw the stump yesterday, quite alarming. If I get it off the camera today I'll post it. Your tree may have secondary Armillaria, but the K. deusta alone is grounds for serious concern if there is anything or anyone that would eb hurt or damaged if the tree could snap at the base (which is what happens with K. deusta). So Paul's general guidance about 'targets' is appropriate. Don't panic, just look around and think what would be there in a strong wind.

MAtt and Chris used to work together at SAC. Matt's now out in his own too, based in Livingstone but I bumped into him in Cumbernauld recently doing training, the Wildlife Trust has a huge number of non native trees there and it is systematically getting rid of them and seems happy to let these be used for training.

Yeah, the bark is more like Maackia amurense. Could be that.

I reckon you're in with a shout there, although the bark isn't quite right . The tree formerly known as Sophora is now Styphnolobium (japonicum). The bark looks like one of the straight Sophoras. I'm going to struggle to remember that name. Stiff - no - low - bee - ....um. I just noticed that the Collins Tree Guide spells this wrong, it has Stryphnolobium. " While there may be a case for naming the Pagoda Tree Styphnolobium japonicum, there is still no general acceptance of the generic name, probably because of its clumsiness."

Try Chris Simpson at Informed Tree Services, based in Hamilton which might be a bit handier. He put me through my CS30/31, great teacher. And try and get some experience as a brash-rat too. Some folks think they can do a course and then be straight up a tree doing all the fun stuff. It's not like that, and you will learn a lot about the industry just helping out on the ground and watching and listening.

Wherabouts are you? There might be soemone nearer to hand. I met Chris White once and he gave me a free Stihl baseball cap, otherwise I would have forgotten him completely. Seemed very affable and his trainees were looking happy.

I don't have an accountant and already the whole thing is feeling a bit too complicated for the scale of my business. I've looked into capital allowances, buildings are not eligible. I might be abe to put depreciation through on it though. And repairs, although I very much hope there won't be any repairs needed for a long time.

Aye well you'll need something meaner than them to look after you when you come up north. We are living on the set of Trainspotting up here. Joking, of course.

Thanks again. Problem is I only need 6 or 8. I love the idea of the octoposts, and I miss creosote. But you have to buy the 90x90s in bundles of 99. Local sawmill closed 5 years ago, now a Dobbies garden centre :-(