daltontrees

The legislation appears clear on this "Where consent is granted ... such consent shall be valid for a period of two years beginning with the date of its grant". It can be added that "A grant of consent... shall (except so far as the consent otherwise provides) enure for the benefit of the land to which the order relates and of all persons for the time being interested in it. " There is nothing in the legislation to suggest that the newer refusal negates the consent. Any analagous planning situations result in compensation being payable. It appears to me legelly possible for a consent and a refusal to overlap without contradiction. There could be genuine reasons why felling this year is OK with the Council now but not next year, for example a new policy coming into effect or a Local Plan review. But you shouldn't have to speculate why. You have a consent and it can be used without penalty until it expires.

It could be a case of Phytopthora alni, but I haven't confirmed any cases myself so I am just going on what I know of it from various sources. Try the Forestry Commission info. Maybe share your findings with us here if you follow it up?

I don't think it's Goat Willow, I'm pretty sure it's Salix cinerea Grey Sallow, which is dioecious and the one in the picture is the female. Find a male, put it upwind and pretty soon you'll be over-run with offspring.

The wirst thing is that it would fail to get Bulding Warrant and if already built would have to be demolished without compensation. It has happened. So unless the design complies with Building Regs wherever you are it could be hard to show compliance unless you have access to the original designer's calcualtions of U values, load bearing structure etc.

I wouldn't fancy trying to chase a cut with one of those. 'American' can be funny, I see they advertise that that little gizmo "can fit easily into your pants". Ouch. The one in the museum is about 7 foot long.

As spotted recently in the agrucultural museum. Anyone ever used one?

More specifically Wild Service = S. torminalis Bastard Service = S. thuringiacia True Service = S. domestica Service tree of Fointainbleau = S. latifolia At your Service...

The Prescriptions Act does not apply to Scotland, and arguably there is no right to light or buildings up here. And although the Act is helpful in England, it did not create rights of light it merely clarified and shoprtened the prescriptive period. There are many differences between the right to light at common law and the analsgus right to light over high hedges, but there are three essentially important ones. First the latter covers rights to light in gardens too. Secondly the latter doesn not cover non-residential buldings like workshops. Third the common law right is to perhaps as little as a fifth of the light levels tha the British Standard deems appropriate for adequate daylighting. The 'mathematical equations' are not really mathematical, they are derived form complex modelling of BS thresholds and then rounded very substantially upwards by political will. The guidance thus generated does not translate well to Scotland, as anyone that has noticed that our latitude is different will appreciate. Your choice of words "a high hedge may not be only from evergreen and semi-evergreen individuals, but deciduous broadleaved ones, too." is a bit unfortunate, as I am embroiled in 2 appeals just now concerned with an almost exclusively Larch high hedge. And even in England I must point out that high hedges need only be predominantly evergreen or semi-evergreen they can be quite substantuially deciduous and still fall within the Act. Of course a thah piont the guidance, which is derived from equating their light-obstructing properties to those of buildings of the same shape, falls apart. As I think would any common law case asserting a right to light through a tree. Perhaps that's part of the reason it's never come to court.

All wasted on me since I have absolutely no idea what "crushing it" means.

The marchmellow says it all! Can anyone imagine a situation where a nuisance would be actionable but would not give rise to foreseeable substantial harm or damage to the tree owner if self-abated by a neighbour? Or vice versa? Or maybe it's as simple as this. Whether something is actionable only makes the difference between a neighbour (i) self-abating and not recovering the expense of doing so or (ii) asking a court to order the tree owner to do it at the tree owners expense? The question of risk to the tree owner would therefore be an academic one, in the first example the giving of notice and the foreseeability of harm being incumbent on the neighbour, and in the second example being implicit in a court order. This was what I thought earlier while Heather pestered me for emoticons. I should have said so.

It occurred to me that someone working on the branch removals had been wearing spikes when they shoudn't have been.

My daughter Heather wants me to do some smileys here, so here they are, chosen by her.

Ahhh if it were that simple.... There is ancient common law in Scotland that would direct the courts in favour of the tree owner if the neighbour had damaged it out of spite, but I can see it being hard to prove spite. At least it demonstrates that since roman law you can't be an a*se and get away with it. But more basically, I can see a case coming along someday where the courts will be forced to strike a balance between the right to self-abate by the neighbour and the tree owner being allowed fair warning of an impending hazard (risk). That is to say if a neighbour wants to cut back roots and should reasonably have foreseen that the consequence would be failure of the tree and harm or damage to the tree owner or his property, he would be negligent to cut the roots without first having given the tree owner notice of the likely risk arising. The duty of care we read about often isn't just a consequence of land ownership (that is just a special case of it), it's because we all have to act reasonably to everyone else in everything we do everywhere or run the risk of being found negligent if something goes wrong. The dichotomy between right to self-abate and killig the tree is unresolvable as far as I can see. I pressed the issue recently on a debate on UKTC and hypothesised a servitude/easement prescriptive right of having tree roots in your neighbour's land. It is of course a legal impossibility and no such right exists. No-one disagreed with me, and while that in itself doesn't prove anything there were comments to the effect that it is probably unresolved as yet in case law. My current advice to parties in such situations is that the neighbour should foresee harm/damage, give notice to the tree owner firstly requiring abatement and if no action is taken (after a reasonable time has elapsed) secondly warning of the foreseeable consequences of intended self-abatement. However tree law stands, I think that this model of behaviour would satisfy the basic tests of reasonability and form the basis of a defence. I would go further and suggest that there cannot really be any other competent solution in ordinary circumstances. And I would love to hear someone explain otherwise. For me it is the last great quandry of tree law, and it would be nice if it could be resolved without a fatality to bring it to court. But it would be for anyone following this suggestion to satisfy themselves as to its soundness, I am not a lawyer and like anyone trying to be helpful on Arbtalk I cannot be held responsible for people taking up suggestions.

No court decisions on this so far that I know of, but it will be a very helpful decision when it comes along.

It's a pity so many girls are more like C+3.

The article is Webber H. J. (1948). “Rootstocks: their character and reactions,” in The Citrus Industry, Vol. 2 eds Batchelor L. D., Webber H. J., editors. (Berkeley, CA: University of California Press; ), 69–168. But the illustration is all over the net.f

Cheeky! Maybe just call it 'big up'?

Love it! Here's the diagram from the 1948 article I saw, where he calls it incongruity. He gives + and - incongruity scores.

A few cherries surveyed last week. I don't officially know how to describe this. The graft scion is much bigger in diameterr than the stock. It's not 'incompatibility', the graft has endured for perhaps 40 years and is compatible. I saw an article from 1948 that suggested the term might be 'graft incongruity' with this form being 'positive'. Anyone got a snappier or authoritative name?

Deodar needles are significantly longer (2 inches) than Lebanon (barely an inch). Can't tell from the photos, but it looks Deodar-y to me.

Another clarification for arbs. You use the word 'arboriculturist' twice here but the context of the two uses is very different. Yes "an inspection by an expert arboriculturalist was only necessary if there was something revealed by the informal inspection which suggested that a more detailed inspection was required", but please note that the arboriculturist that you then mention as not being liable was in reality a tree worker who had not been brought in to inspect the tree - despite the pursuer's best efforts to implicate the innocent contractor by saying he had a 'duty to warn', the court said he was not implicated. As such, he was not there in the capacity of an inspecting arboriculturist. Otherwise it would be like blaming someone who fixed your car radio for faling to warn you that your tyres were bald and holding him to blame for your high-speed blowout on the motorway.

It's interesting what you have taken from Khan. Generally it seems more relevant to your subsequent posting about roots and encroachment, as it was a subsidence case of 'nuisance' rahter than a dangerous tree 'negligence' case (although admittedly the two Ns are both siblings of the Duty of Care family). That said, the pursuers were found liable for a substantial amount of contributory negligence for the subsidence damage, for not giving notice to the tree owner and a chance to remedy the problem. I'm not convinced that Khan made any substantive new law on the higher standard arising from subjective knowledge, since the judge was preambling from the findings in a much higher court (House of Lords) in Baker v Quantum Clothing, where a fuller debate can be seen and from which it is perhaps clearer that the higher standard is the kind of thing that might be expected of an employer rather than one that could be used to advantage by a neighbour. In Khan there seemed in the end no relevance to the commentary, since the defendant had no knowledge, not even general knowledge, of the relationship between trees and subsidence. Khan remains an important case, though, cementing the inevitable outcome for the law that damage from nuisance roots carries liability that goes beyond the duty holder's need for casual lay observation. The court was thankfully careful to caution against seeing the duty as strict liability, clarifying that there must also be reasonable foreseeability. It seems to set up a need for routine specialist advice to be sought by tree owners to foresee that which the ordinary man with ordinary tree knowledge could not possibly do. It was a brave subject to try and cover succinctly. I'm just pitching in that Khan wasn't really a dangerous tree case and that even the generalities relatin to negligence and duty of care that can be drawn from it are hard-won and not that conclusive.

Thanks.

22/04/16. Fact #192. Some info on UK case law, trespassing roots, and subsidence. Could you please elaborate on what you mean by "assuming removal is done with reasonable care"?

For sure SULE is a useful concept but it refers to both contribution (useful) and risk (safe), the former is only loosely referred to in the BS and is (in terms of targets) impossible to assess until the detailed design layout is known. As such it is potentially misleading in 5837 surveys. For me it's simple. The BS is literally a Standard, and all that is needed is to apply it as it is written, rather than how others interpret it. One doesn't need to be loquacious to see that 'Estimated Remaining Contribution' means the estimated length of time that a tree will continue to contribute its current amenity.