daltontrees

I think your problem there is that the TO is stubborn and jobsworthy and maybe not too clued up on how trees actually work. I'm trying not to use a more succinct word for him. That sort of attitude just breeds resentment and encourages pre-emptive felling. I personally think that offsetting is somethimed justifiable but I like to show that there is at least 2x as much rooting available in the offset side. Offsetting was stopped because people were taking the piss. Quite right.

It takes so long to know if it works or not. I have seen limes with Kretzschmaria that I suspect have contracted it following roote severance a decade or more beforehand. The primitive 12x rule also overprotects trees compared with the ISA guidelines and underprotects for other trees especially ancient and veteran where the Ancient Tree Forum urges 15x. or drip line + 5 metres. Personally I am not in favour of simple if it is also wrong, no matter how dumb the users are. Educating them and enforcing will save trees, using a system that underprotects won't. Likewise if overprotection (or the perception of it) stimulates pre-emptive felling then that should be addressed ratherh than pretending that the system works and then seeing trees die in a few years. I don't share your concerns about enforecement difficulties. Protection should be dimensioned and set out and checked on site, and after that it doesn't matter what the shape is. It would be so much better if, when using the 12x system, we knew that it worked and why.

Exec summary (which is not an excuse for not reading the whole thing) - BS5837 has got dumbed down over the years and then frozen in time with the 12x multiplier based on a single bit of superseded research. Meantime the rest of the world has moved on and we appear frozen in the past.

I have just put this on a facebook group but I am posting exactly the same thing here for anyone that's interested. I believe a draft of revised BS5837 is due soon. WIth this in mind I set out to try and get to the bottom of where we got our RPR = 12 x dbh system. Turns out it has come from a single superseded publication in 1998 by Matheny and Clark which even they have moved on from. Attached is a link to my notes which systematically goes throught every calculation method in BS5837 (1980, 1991, 2005 and 2012). I am not advocating anything in particular, but I hope as many TOs and consultants will pitch in on the revised BS from a slightly better informed position, whatever your suggestions are. Comments public or private welcome, but don't shoot, I'm just the messenger. HISTORY OF THE DIMENSIONS OF ROOT PROTECTION IN BS5837.pdf

A couple of things to observe here. Firstly you are being needlessly offensive. Second you are wrong. I hope you aren't advising customers of clients, at least for their sakes. Try and keep up to date with what the law is. You're jsut making a fool of yourself. I was trying to be helpful by pointing out your mistake. Even if you don't care, perhaps it might remind others that the dying and diseased exemption hasn't existed for over a decade.

There is NO dying or diseased exemption. Removing protected trees on that basis would be a strict liability offence.

I don't know. But new Regulations were needed anyway. The 1969 Regulations were remade in 1999, then again in 2012. It's like buses, none come for ages then two come along at once. Politicians liek to shift things form primary to secondary legislation so tha the Ministers can mess about with them afterwards without full parliamentary approval.

Only if you want to.

I thought the reference to DDD was dead dying dangerous. That exemption no longer exists. Huge chunks of the 1990 Act were repealed, and most of the exemptions were re-made in the 2012 Regulations. Including abatemnt of nuisance.

This looks prertty simple. The owner of the dodgy trees knows about them. It knows that you know that they know about them. Liabiity is with them. Do nothing else, spend no money, commission no reports, engage no solicitors, make no applications to Council. Don't stand under the trees in strong winds until the owner sorts them out.

Planning Act 2008 (c. 29), ss. 192(2)(b)

25 deals with TPO restrictions. 26 deals with common law rights. I don't really see a contradiction. There might not have been a Welsh high court decision but the House of Lords in Lemmon v Webb and the Kings Bench in Earl of Lonsdale v Nelson. The Welsh parliament has stated its intention to get rid of the statutory nuisance exemption if and when it ever gets around to producing its own planning Act (been in discussion for 5 years now). It's pretty naive for a few reasons.

I am more than familiar with Perrin, and it casts such doubt on the idea that the nuisance needs to be actionable that personally I find that the 'actionable' test is fictitious. So did the judges.

6" x 2"s would only be suitable for a 8' span. Rafters and joists are for different things.

That part of the Act was repealed in 2008.

Not completely, my view is that there would have to be reasons for the work i.e. prevention or removal of an actiual nuisance (in the legal sense of the word).

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.