daltontrees

Taking it as read that fungal pathogens in the same sector of a tree willl normally ward off infections by other fungi, what would be interesting would be whether australe and resinaceum are so genetically similar that can have some form of co-existence in the same host.

Are you correlating the pronounced buttressing to reaction to the fungal infection?

I had never heard of that one, and it does look like the pictures, but quoting from Wikipedia (which is not always right) "The only known population, found in 1991, consists of 200–250 plants growing on the Monti Iblei area, in Buccheri, in southeast Sicily near Syracuse." One of the rarest trees in the world. Wouldn't it be lovely of there was an outbreak in Yorkshire?

I would have said Zelkova carpinifolia, especially the roughness of the leaves. I recall Nothofagus obliqua lobes are more rounded and irregular. But I don't know for sure.

It's not clear if you're tasking about the qualifications of the head of the team or the tree surveyors. If it's the head of the team, there's no particular reason why they should have the qualifications necessary to do tree surveys.

Collins Guide again, to give balanced view. Orchard apple leaves "oblong, large (to 12cm), with small irregular teeth; dark, rather matt and variably crumpled." That last bit I find to be useful as a first hint to it being Malus domestica. Pear leaves are leathery by comparison, and as someone mentioned have a pointy tip.

Whatever you decide, probably wise to precee it with "Notify the Council that I intend to ...." Apart from the severing of ivy, which may make more difference to light anad windfirmness than any pruning. Don't know how you could advise on risk until you do that anyway and wait for it to die back or remove it.

Yellow card.

Yes it is.

Close-up

I never give up! This picture of pears (so there is no doubt) has a leaf top right showing what I suspect is meant by 'minutely-rounded'. To be honest it's not a characteristic I would use to identify pear. Agreed apple tends to have a broken margin, but what I believe is called 'serrated'.

I have nio view on this, just was saying what Collins says.

Collins Guide says common pear leaf is 'minutely round-toothed'. As in the OP's picture.

I think everyone else has given up on this thread. In the situation you describe, I owuld expect the blame to be apportioned between the neighbour and his contractor. The apportionment would bdepend on what the neighbour had instructed the contractor to do. If he said "excavate to the bounbdary, no matter what you come across, and don't tell me how it went" he would probably take all the blame. If he said "excavate, no matter what you come across, and tell me afterwards how it went" then the neighbour would learn of the roots and should warn the tree owner. If he said "excavate to the boundary" the contractor would be expected to find the roots and stop, or at least have a duty to warn of the impending tree issues. There's no such thing as a lay contractor. Not knowing about trees can not be a valid excuse for negligence, a reasonable land owner would employ someone competent and follow their advice, and would be expected to take professional advice about a nearby tree whether he knows about trees or not. That's my view anyway.

Now here's a thing...

If the first of those two points is meant to be a summary of my perspective, then I think you have misunderstood me a little. Of course the encroached party has a duty of care. It is how he exercises it that matters. Firstly recognising that abatement will create a hazard. Secondly considering whtehr there is any less mischevious way he can gain enjoyment of his land. Thirdly bringing that to the attention of the tree owner. Fourthly allowing a generous period of time for the tree owner to remove the potential risk. This may not be as you suggest absolute absolution, but I would rahter have this duscussion before the event and I am not persuaded that the law can be interpreted any other way, because there are firmer authorities that refute any notion that roots create themselves a right to occupy encroached land than there are that suggest that considerate self-abatement should be constrained by fears of prosecution for damaging an encroaching tree. My abater is deviod of mischief and is very different from the careless driver.

Quite my point, the intransigent tree owner holds all the cards, and that is inequitable since it is he who has allowed the encroachment without title.

Nor do I, although there was a time when the courts confused the two N words, up at least to late 60s. Some modern texts including Mynors caution the reader of the outdated terminology, but care is still needed in the reading.

Yes I understand the scenario. But pasage of time would only make it harder to prove the root removal was the cause of failure. I'm saying that that's irrelevant to the situation where the encroached party says to the tree owner "I told you I would cut the roots. I told you it would probably cause your tree to fall over onto my property. But there is no other way of me using my land than by removing roots. You've had 3 months to do something about it. You haven't. So now I'm going to cut the roots. If the tree then lands on my property it will be your fault." Has he no other remedy. Like any situation where a neighbouring tree is risky, he cannot apply to the courts for a specific implement to force the tree owner to remove the tree. Must he apply to the courts instead to get a specific implement to force the neighbour to remove the encroaching roots? Is that the appropriate remedy? And thinking about that, the courts might only intercede if the encroachment is de facto actionable nuisance. It sets up an ill-defined scenario where an encroached party must at law tolerate tree roots unless they are such a nusance as to be actionable. That's not what Lemmon v Webb says. And Davey only adds that nuisance is actionable of there is damage. Mynors summarises nuisance as the existence of a state of affairs on one piece of land that materially interferes with the enjoyment of another piece of land. If 'actionable' and material interference are synonymous in this sense, then the poor encroached party contemplating the ordinary use of his own land to grow vegetables must raise a civil action to have the courts order the tree owner to remove the roots of the tree first. And if the tree owner fails to do so, he will be in contempt of court and could go to jail for it. But no-one can order him to remove the tree even if it is inevitable that harm or damage to the encroached party will arise. Proof of negligence might be prima facie and easy, but that will be no comfort to the vegetable growing man in the right. This is not a hypothetical situation, I have had a case like this where the tree owner has stubbornly refused to allow any way forward for the encroached party. In the end the feud was so bitter that the encroached party moved house, while the tree owner had a restraining order imposed on him. And for me cutting back the branches of a 25 metre high beech tree without being allowed access to the stem of the tree for climbing was challenging under a torrent of threats and abuse from the tree owner. Maybe that experience is why I would like an answer to this scenario.

Please elaborate. If notice had been given by the cutter and the tree owner did nothing about it, I would expect the tree owner to be to blame for harm or damage to the cutter. Any other interpretation that makes the cutter to blame flies in the face of the established principle in law that the owner of an encroaching tree can never gain title to enjoy support from a neighbour's land. That much at least is clear from as far back as Lemmon v Webb 1894. If you are conversely suggesting that the encroached party cannot do anything in situations where (i) he needs to remove roots to make reasonable use of hs own land (ii) the tree owner is aware of the resultant risk to the encroached party but does nothing about it (iii) the encroached party cannot cut the roots for fear of being harmed by the tree - then a mockery has been made of the law. If you are suggesting that there is some other remedy than self-abatement by the cutter I'd be interested to hear it. It would be if anything a relief to hear that there is a less drastic way for the cutter to regain reasonable use of his land without then being exposed to entirely foreseeable harm or damage from the tree.

OK, I think from what others have said about s 5.3.3 that this is the same subject matter as s 3.6.3 of the first edition. Here is what I think is the trelevant short paragraph. "It has also recently been pointed out that "where there are two ways to abate a nuisance, the less mischevious is to be followed". This echoes the obiter remark of Lord MacNaughten in Lemmon v Webb, suggesting that in thcases where some alternative remedy could be effected without mischief to teh tree owner, that remedy oght to be preferred." [The 'recent' reference is to a case from 1927!] This paragraph is sandwiched between two others which when read in context suggest that the law is not entierely clear and that a cautious approach is needed as a result. Basically, there is no settled position, which is the source of frustration in many cases. Put plainly, if someone must risk losing litigation as a means of finding out whether he was right or wrong, everyone in that situation is in limbo and that is not good for society not to be able to go about its innocent daily business, nor for proprietors to be able to enjoy their property fully. The law says that ignorance of the law is no excuse, but if the expert on a highly specialised are of law (Mynors) such as abatement of encroachment of trees in relation to tort and negligence does not have the answer after painstaking research, there seems to be no absolute clarity. A few days ago I mentioned a special situation in scots law and as expected no-one on this english-centred site took me up on it. They didn't. So I'll tell you. It is similar to the 'mischief' principle. And this I think merits a bit of expansion. Some of the debate here has suggested that mischief is the same as excess, but the word 'mischief' has never meant that to me. If we were looking at whether the extent of root removal close to causing the death or failure of the whole tree, we might think of 'careless' or 'wilful', and if it were TPO situation this could be a relevant measure. But in a non-TPO situation, if the true measure is 'mischevious' then it is not a question of whether resultant harm or damage to the tree owner should have been foreseen but whether it was intended, or perhaps a little less cynically the abater was indifferent to the outcome for the tree owner. The key point is that mischief implies intention rather than lack of foresight. If so, and if we take the relevant authorities as literally as we can (given that some of them contain obiter comments), the liability of the abater to the tree owner is not a matter of negligence but of wilful intent. So back to my point. I think it is a reasonable and defensible position for an abater to give reasonable notice, including foreseeing failure of the tree, and then to proceed with abatement. There remains only one question in my mind, and it is a complcated one. It is said that root encroachment is a nuisance, but others say that it is a nuisance only if it causes damage. Even that is a narrow interpretation of nuisance, since nuisance also includes prevention of reasonable enjoyment. But can the neighbour remove roots that are not a nuisance (say, he just wants to dig over the area of roots to plant vegetables)? And if that caused the death of the tree, would his intentions have been mischevious? Or if he wanted to build an office in his garden (as I have just done) under permitted development rights, with no exercise of control by a LPA? These are reasonable uses, reasonable enjoyment of a person's land. Is he to be denied these because he must fear being sued for the death (and loss of value) of a neighbouring tree? I know what I think. My summary: self-abatement causing risk to tree owner without notice is only not acceptable when there is mischievious intent or indifference to the safety of the tree owner. Self-abatement to remove nuisance or gain reasonable enjoyment of land, following reasonable notice, is defensible. There's a small grey area in the middle, where the examination of the proportionality and motives of the abater would decide liability of the abater for resultant harm or damage. I expect no replies, but it's clearer to me now.

Sorry, this does not mean anything to me as I do not have the current version of Mynors.

Trying to keep this simple. Firstly the OP didn't ask about teh special situation of protected trees. So I am ignoring that for now, as it's clearlyt a different set of rules arising form statute. Secondly, if you come round and bulldoze my preoperty you will have taken access to my land and that would be wrng. You will have wilfully destroyed my property and that is wrong. If you destroyed it from next door with a rocket launcher, that would still be wrong. Clearly bricks are still property, but when arranged with mortar and witha roof on their worth chages form their cost to their value. And as you say a felled tree no longer has amenity value and the value of the logs might be small recompense. \but this still misses the point. A tree that has grown partly dependent on the support and nutrients of a neighbour's land has no heritable right to continue to rely on that support and nutrition. Ther is no such thing as a prescriptive servitude right (or easement in engish legal language) of support or nutrition for trees. It is just not possible to equate trees to any other form of trespass or encroachment, because trees encroach by their very nature when close to a boundary. I believe the law as evolved to strike a balance - it is not wrong to let your tree roots encroach, it is only wrong to let this happen to the extent that it damages a neighbour's property, and of the neighbour wants to regain full use of his land or abate a nuisance himself he can cut back at will. I think tha tthe law would hold him liable for harming or damaging the neighbour or his property if he does this in such a way that that damage could be foreseen and could have been averted by allowing the tree owner to anticipate it and pre-emptively prevent it. I expect we'll dusagree on this if youy do not see that the tree owner's tree is dependent on support and nutrition to which he has no right. Broad societal and common law tolerance of the innocent but everyday encroachment of roots cannot possibly equate to creating an entitlement of the tree owner to assert rights to the unadulterated amenity value of his slightly ill-gotten gain. We all no doubt have to advise customers and clients about their rights and obligations. To me it sucks to duck out of this by saying that simple everyday situations like encroaching roots cannot be resolved without bringing lawyers in. I go as far as I am confident to do by advising on legal principles to quite a high level and I have found that parties see the fairness and logic in the sort of position I have set out above. It might bite me on the bum one day if I'm wrong. I tried to flush the principles out on UKTC last year, but there was no rebuttal from anyone to my reductio ad absurdum postulation of a servitude right of support and nutrition. But perhaps I was just unlucky to be posting between Dr. Mynors' withdrawal and Stephanie Hall's arrival.

Everyone going for Hedera, no-one mentioned helix. But for what it's worth the leaf form of helix is very variable, everything from lobed to fiamond shaped to boat shaped. helix has different lifestages, creeping and climbing, in various states of shade and sun and wind exposure, so perhaps leaf shapes are manifestations of individual positions? And that's before getting into ornamental varieties. Here's a pic of mature form of helix borrowed from pinterest. Personally I wouldn't look further than H helix, but I suppose another Hedera species is possible.

You did, I just added that a reasonable period should be left between warnign and cutting. But I was also thinking through the implications of any other interpretations and systematically ruling them out on the grounds of what I would consider unassailable (english) common law.