UKTC Archive

RE: Boundary trees - exact definition on the ground

Subject: RE: Boundary trees - exact definition on the ground
From: Jim Quaife
Date: Dec 30 2016 12:03:57
I have been involved in boundary disputes from time to time Julian, and where 
trees, hedges and shrubs are regarded as a determining issue the two most 
common criteria are age and position.  With age it is usually "was the 
subject plant growing when the boundary was established".  Some form of core 
sampling is necessary - which with slow-grown hedge plants can be quite a 
business!).
With position the situation is actually very straightforward in principle, 
but in practice tends to involve a good deal of navel-gazing.
A propos the tort of nuisance, vegetation growing across a boundary remains 
the responsibility of the owner*.  This is "easy" enough with roots and 
branches, but where a tree leans across a boundary so that the substantive 
part of it (and its stem) is on (over) the other party's land, it still 
remains the property of the owner.
Given that a boundary only has one dimension - length and no width (although 
UK Land Registry has a habit of providing title maps with the boundaries 
drawn with wide nibs, which to scale can be over ½ metre or more wide!), it 
follows that it is extremely unlikely indeed that a tree is in joint 
ownership in terms of its physical position.  Where trees are deemed to be in 
joint ownership it is almost invariably a civil agreement.
Regretfully I cannot recall the cases, but there have been two instances 
where a judge has thought that the diameter expansion of a tree's stem across 
a boundary means that it has "developed" joint ownership.  To my mind this is 
illogical.
Determining the growth centre of a tree's stem (as opposed to the geometric 
centre) by its very nature involves structured guesswork.  If one is unable 
to be sure about the relative position of the growth centre and a boundary 
then it may be necessary for a civil agreement to be formulated, but 
unfortunately disagreements between neighbours are infrequently matters of 
sweetness and light!
A case I did last year was interesting in that a straight, but angled, 
boundary was determined by two chartered surveyors where the ownership of a 
line five trees was in dispute.  The party who thought he had ownership had 
obtained TPO consent to remove them; the other party who thought he had 
ownership did not want then removed.  Leaving aside my observation that the 
two surveyors had got it wrong, which necessitated them coming back to the 
site to do it properly (I was not Mr Popular!) it turned out that the two end 
trees at each end were in different ownerships, but the middle tree was right 
on the boundary.  The growth form of the trees was upright and I had no 
reason to believe that there was any eccentricity of the growth centre, so I 
explained why I had to assume that the growth centre was, for the purposes of 
the exercise, the geometric centre.  This placed the tree in the ownership of 
the party which wanted to fell, and it was duly felled along with the other 
two. 
The boundary was along a private road to several properties so I was able to 
sneak back to check whether the two centres coincided.  They didn't - but 
fortunately not by enough to alter the outcome. 
I repeat that in terms of law (and I am not a lawyer - this is just my 
application of what I believe to be reason) if one imagines the emergence of 
the first shoot from a seed which supports the cotyledons and the radicle, is 
it/are they ever likely to be exactly on a one-dimensional boundary?  I know 
what you are thinking - what if the shoot is on one side of the boundary and 
the radicle the other?  Well, how would one know?  Those on uktc will know 
that I have always preached that if boiled down to one word, arboriculture is 
a matter of justification.  The boundary scenario is no exception. 
Going back to the two judges, I am in no position to challenge them, but I 
would just make the point that over the years there have been various judges' 
opinions about what constituted a "tree" in law, which have revolved around 
arbitrary dimensions (often based on the Forestry Act 1967 which is a matter 
of licensing, not ownership, or the Conservation Area protection, which is a 
matter of er ... protection).  It took the Appeal Court decision in Palm 
Developments to reach the entirely logical view that a tree is a tree at any 
stage of its life (admittedly only in the case of the application of a 
woodland category TPO but there is no logical reason why this should not 
apply widely).  To my mind that means that when the first shoot and radicle 
appear and the seed becomes an independent plant, it is a tree (if a tree 
species!).
To finish this rather long post, a tree belongs to one side of a boundary or 
the other, and instances of joint ownership are probably virtually impossible 
to determine other than by civil agreement.  What courts may determine in 
Canada is a matter for those courts.
Jim
* Just to demonstrate this, I had a case where Ivy had grown from one owner's 
land up the three-storey gable end of another's house causing damage to the 
chimney.  The ivy's owner had in good faith severed the ivy at head height 
and dug out all the roots, but it continued to grow in the lime-based mortar 
of the brickwork - the ivy had changed its own owner!   However, as the 
damage was instigated while the ivy was in the original ownership, that owner 
had liability.  On my advice the ivy was removed, but it did require an 
interesting methodology.

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian Dunster
Sent: 29 December 2016 17:59
To: UK Tree Care
Subject: Boundary trees - exact definition on the ground

Happy holidays to all.

I am in the process of rewriting /Arboriculture and the Law in Canada/ and 
have a specific question for the UK team. I have a copy (1st
edition) of Mynors and am well aware of the case law such as Lemmon, Leakey 
etc. and associated issues. I am researching a very specific point in that 
general area of thought.

A 2013 case in Ontario, Canada decided that determining if a tree did or did 
not cross the property line should not be decided on where the base of the 
tree was, but on the location of the trunk relative to the boundary line. 
That may have been driven in part by Ontario Forestry Act which defines trees 
with a *trunk* on the boundary as trees jointly owned. The court did not 
specify where on the trunk such a determination should be made.  In a case in 
British Columbia the court then took the notion of trunk and accepted dbh as 
the reference point.

My questions for the team .........

1    In the UK how do you determine if a tree has or has not grown past 
the property line?

2    Is it based on where the tree meets the ground or some other point?

3    If it is not the base of the tree, is there generally accepted 
practice about where the determining point ought to be?

4    If it is a trunk how do you deal with leaning trees?

Ideally, case law citations would be helpful rather than notional ideas of 
what seems right.

Thanks for any insights offered.

Cheers

jd

On Behalf of Dunster and Associates Environmental Consultants Ltd.


Dr. Julian A Dunster R.P.F., R.P.P.., M.C.I.P., ISA Certified Arborist, ASCA 
Registered Consulting Arborist # 378, ISA Tree Risk Assessment Qualified BC 
Wildlife Danger Tree Assessor Honourary Life Member ISA + PNWISA

North American distributor for Rinntech
www.dunster.ca





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