daltontrees

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.

I remember seeing these same pictures 4 years ago. The bids of £8k, £10k, £20k and £30k are all marked "private listing - bidders' identities protected" and were all put in within 2 minutes of each other. Chancer.

I don't find it that hard. AS 10 Bears says the 20+ expectancy is the key. It's hard to justify movign a tree between band C based on quality if the life expectancy is clear. Here's te crucial bit, though. I wouldn't use SULE (Sorry Mr Bears) because it'sa not in teh BS, but the BS uses both ERLE adn more usefully ERC. Estimted Remaining Contribution doesn't mean accounting for the dog days of a tree as it struggles on as the regenerating multistemmed sprouty remains of a knackered and fallen over tree, it means 'contribution' which very clearly relates to contributing amenity that one only needs to estimate how long it will be in substantially the form and size is is at assessment. So you can ignore actual biological ife expectancy and concentrate on what it's all about, amenity. And if you think about it, this also is a measure of quality, and if a tree can be expected to be in serious decline in 10 or 15 years due to what is now just the irrecoverable beginnings of decay or environmental factors, it shouldn't be B even if it is doing quite well visually.

If there's nothing or no-one to be hit when it fails, leave it be. Any pruning will just reduce its ability to resist the spread of decay and would possibly have minimal effect on reducing the weight. Re-mulch it, as Macca suggests, this is often the best gift to a tree.

There was a Courth of Session case a few years ago where someone got really badly hurt when a car swerved and hit him, the driver said he swerved because a sheet of ply flew off a hoarding in a strong wind right in front of him (which it did). The court had to consider whehte the hoarding had been adequately designed and built (which it was) or else the owner of the site would have been found partly responsible for the injury. The details of the case are irrelevant but it highlights the risk of skimping on the spec.But if anyone wants to know, the driver was found to have greatly understated the speed he was doing, and if he hadn't been speeding he could have avoided injuring the pedestrian.

If the application did not present evidence that the damage was foreseeable, this is a non-starter for compensation. The evidence would have to show that the damage had not already been done before the appplication date. And be careful, cutting back for telecoms is not exempt, it is only if the site is 'operational land' of the undertaker. All of the aforegoing applies only to England, don't know about Wales or NI, but definitely not Scotland.

Stopped by a balloon! Tough killer, that...

You make a very important distinction, thanks. One could also add that there was no loss, so no claim. There is too I think a £500 de minimus on claims. And some smarty-pants might argue the limb failed because of loss of vitality because of the Meripilus. It'd be a messy case.

On te first point, I didn't mean that one would set out to prove irrecoverable statutory loss, I was trying to anticipate the situation where a claimant hadn't made the case for removing a tree on the grounds of foreseeable damage or loss. I was thinking of a raw negligence claim or a claim where the Council had refused an application and had unilaterally stated that there were no grounds for approving the application. But then, as I have already said, I can't imagine a case for negligence. If someone can, please spell out the circumstances where a Counmcil could be found liable in negligence. On the second point, there might be other reasons for pursuing an appeal, but yes it seems clear enough that if an application was refused because the Council stated that it recognised the potential for damage or loss but decided to refuse becasue it value the tree more highly than the liability for damage or loss. Indeed, in such a case an appeal would probably get nowhere because an Inspector would have no locus to interfere with such a decision. On the third point, yes.

I've seen this referred to on Walnut as the result of canker caused by Nectria galligena (Pirones Tree Maintenance). But I'd like to hear if someone has something more definite for Castanea.

I should have been clearer, I was only referring to statutory compensation. Civil compensation is I expect even more complex than you outlined, not least of all because the TO and the Council have no direct duty of care to the applicant or to his neighbours. I am inclined to think that the first recourse for someone thinking that a refusal was unjust, exposing him to irrecoverable losses through the statutory compensation route, would be a planning appeal. And if the injustice was perpetuated by a dismissal, the next step would be judicial review. The OP's question has been asked before, namely could an applicant apply and get a refusal every year, just to be covered by the compensation rules. And the answer has to be yes as long as on each and every application the foreseeability of loss or damage is demonstrated. And it all comes down to that word 'foreseeable'. The courts have clarified that it does not mean imaginable, nor does it have to mean inevitable. It is easy to find tree situations where damage is foreseeable and for that foreseeability to remain for many years without incident.

I'm coming late to this one but I feel I have to comment anyway. The question of negligence by a Council is irrelevant to the compensation liability. If the Council makes a decision to refuse, and foreseeable damage occurs, the Council is liable for compensation whether it made the decision to refuse competently or negligently. councils can and do decided to take the risk of compensation in the interest of keeping the amenity provided by the tree. If you think the refusal is negligent, appeal it. If you think the risk is imminent and serious, proceed to reduce it under exemption. But if it's just in the middle somewhere, don't appeal, don't use the exemption and don't worry about it.

Sorry David, but I have to defend my professional reputation against this petulant nonsense. I believe I answered the OP's question way back and again a couple of days ago.

Yep, as I thought, you're a disgrace to professionalism. And I'd rather come right out and say that and risk being censured on Arbtalk than not say it. Would you care to tell me who told you on the street that I'm cheap? And whether the 'very cheap' cheap strap line is theirs or yours? Bet you haven't the integrity to do so! I am in my view anyway very very efficient, I organise big surveys with military precision and exercise them with a ruthless systematic approach. If I win jobs it is nothing to do with your pathetic inmplication that i dont do them properly, it's because I know exactly what to do for every tree before I get there. And when I get there, I do it without distraction, and when I find non-conforming situtions I can adapt to them quickly and reliably because I know how QTRA and risk assessement and duty of care works from first principles. I can motor through big surveys and return a fair professional profit. Don't confuse cheap with low quality. And why should I care about reputational damage to QTRA? That would only happen in the event of me screwing up. Which I won't. Are you going to withdraw the QTRA whip? Oh, that's right, you're just a trainer. If you're profoundly depressed, I'm sure there's solutions for that. Which don't include having a go at one of quantified tree risk assessment's strongest supporters on a public forum.

You are nothing short of personally insulting, and I think you have crossed the line from constructive debate to pathetic personal jibes. And I've never even met you, which is probably just as well. We live in a commercially real world. I have an approach to tree risk assessment that is robust, I have been complimentary about QTRA, but it is not adequate in isolation, it's not me that says that it is clients that recognise its limitations and appreciate getting a bit more from it that some one like me gives them. So much for your what goes on forum stays on forum! You have cast aspersions about me that no-one on Arbtalk who is not a QTRA member can check. And it's libellous because it's untrue. In addition people on the QTRA forum are intimidated to say anythiog agaisnt the aprty line. If you're wondering, thats because of you. But you have now plummeted beneath any respect I might have had for you and again I will leave Arbtalkers to make up their own minds about whether to bother with this. No QTRA user has seen my proposed adaptations and improvements. Not even on the QTRA forum. I don't have any sense of self-importance, I share ideas, I run with good ones and share peers rejection of weak ones. That's as it should be, and it's certainly the Arbtalk way.

OK one tyhong at a time here. I have no interest in wasting Arbtalkers' time turning what should be a mutually beneficial expansion of arboricultural knowledge into a petty slanging match. They can skip the bits they are not interested in. So, on this point, I have always wondered why you come on to Arbtalk other than to promote QTRA. And looking back through your contributions to Arbtalk, I se tha you contribute noting else. People can make up their own minds about your motives.

If that failure wasn't foreseeable, I don't know what would be. I can see why the neighbour might want to be paying.

Sounds like the way to do it. I did one like this once and pretty much did what you suggest and it was fine. I remember tying in to the hung up tree for a couple of cuts but using a loop of hessian rope so that if it went the loop would rip out and I'd still be anchored from above in the other tree. The biggest danger is the whole tree rolling as you nibble away at the crown, but once you get up there the support points will be obvious and everything else can go.

I did the training last year. Mike Ellison himself delivered it. It was very intensive but clear, and included a session outside applying the system to real trees and just as impoirtantly to real places and real people and roads and cars. I has already been using my own quantified system and so I already understood the really important point that making realistic and proportionate recommendations about tree risk is only in small part about the tree, it's really about harm and damage and cost. But the training allowed me to refine my approach to recording and assessing situations. The training was well worth the money, but I sure wish it had been a bit closer to Scotland as it took a lot of time and money to get there and back including an overnight stay.

Acer, are you the spokesman for QTRA, I can never tell if you are officially speaking on its behalf with the authorisation of QTRA, asn int eh past yo hav esaid you have no connection to it? My client wasn't after my improved version, but at interview it realised that my adaptations of it took it from an adequate service to one that did exactly what it needs. That is I think why I won the contract in direct competiotion wiht another QTRA user, QTRA in isolation wasn't going to deliver. The client knows how and why I have amended it and approves. It is still QTRA but it is QTRA+. I'm not ging to sit around and wait for QTRA to take upo improvements I suggest, or even let it plunder them for commercial benefit. I can do that myself, thankyou. I'll share them if and when I see fit.

I had just this problem today. After ploughing through a sand-laden compression fork, the chain and groove was mega sloppy. The rails were roughly even height but they had become worn on the insides especially closest to the chain. No amount of pinching the bar closed would have helped, so I bit the bullet and filed a whole lot off the entire bar length. In a vice with a good flat file, took 10 minutes. Almost a millimetre, I'd guess. eventually a square corner was achieved. I refitted chain and tried it and it cut as well as ever.

I found this reference on Google. Private nuisance, as defined in Bamford v Turnley 1860, amounts to “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land.” So in this case the branches are a continuous state of affairs, but I can't see how they are a substantial or unreasonable interference with the use of the land. It is so important to remember that nuisance, as used in the Tree Regs, is not in its common sense but in the legal sense, such as given in the abovementioned case. And the use of the exemption is only to the extent required to abate the nuisance, not to eliminate all encroachment. And inevitably the word 'actionable' has to be examined. It carries with it the principle that the wrong must be creating actual and measurable damage or loss of enjoyment. The Tree Regs don't say 'for the ... abatement of an actionable nuisance' they just say 'for the ... abatement of a nuisance'. But I think it was clear from Perrin that the nuisance has to be significant to the extent of being actionable. If it was truly Parliament's intention through the exemptions to make sure TPOs don't cause someone to be in a situation of being unable to abate a nuisance that otherwise would find him on the losing end of an action for nuisance, then that's entirely appropriate. And that's what I'm going with for now. Should Gary's client, rather than getting a deliberate TPO application knockback, serve 5 day notice on the Council of his intention to abate a nuisance? Well, I see an important point here, the Council that receives a 5 day notice and doesn't prevent the work is not condoning it. The 5 days may be provided only to allow the Council to visit and take evidence of the condition of the tree. The Council's failure to stop the work is not, in my current thinking. proof that the nuisance is actionable. How could it be since the Council may not be party whatsoever to the preceding exchanges between landowners and such evidence as there might be that there is measurable loss. They can't know if it's actionable, at least not quickly enough to stop the work. Do they even have the legal authority to stop it? I don't think they do. The course of action would be to prosecute for abuse of the exemption. Like Gary, I don't know what the penalty for that is, but I guess it's akin to or the same as unauthorised work to a TPO'd tree. I am pretty sure the courts are satisfied that tree owners do not have to anticipate and prevent actionable nuisance (except subsidence cases, which are deemed negligent because foreseeable, the question of measurable damage being self evident). Nuisance is after all in the eye of the beholder. I am baling out in case I have to look through Perrin again, which I never want to have to do.

Hurrah!

You and Kevin, you are prone to prod my doubts sometimes, but for once I am going to resist spending 20 frantic minutes re-reaidng case law, and shaking Mynors (the book, not the person) by the spine in the hope that some new perspective on this will fall out and land at my feet. If Perrin v Northampton taught the world and us anything it was that we probably can't take anything for granted in tree law. A good, (or even a bad) night's sleep will improve my perspective, and maybe the tree law elves will put together a perfect answer overnight and leave it for us to find in the morning?