UKTC Archive

Re: RE: Boundary trees - exact definition on the ground

Subject: Re: RE: Boundary trees - exact definition on the ground
From: Julian Morris
Date: Dec 30 2016 15:53:52
AS Jim has indicated, like him I think no-one in teh UK tree law scene is 
going to be abel to help. The reason is a substantial difference in UK tree 
law and Ontario. Statute there seems to have created common ownership for 
trees that come to grow across a boundary.

For the benefit of anyone looking in here, here is what I have found of the 
Ontario Forestry Act (1990).

Boundary trees
        10.  (1)  An owner of land may, with the consent of the owner of 
adjoining land, plant trees on the boundary between the two lands.  1998, c. 
18, Sched. I, s. 21.
Trees common property
        (2)  Every tree whose trunk is growing on the boundary between 
adjoining lands is the common property of the owners of the adjoining lands.  
1998, c. 18, Sched. I, s. 21.
Offence
        (3)  Every person who injures or destroys a tree growing on the 
boundary between adjoining lands without the consent of the land owners is 
guilty of an offence under this Act.  1998, c. 18, Sched. I, s. 21.


I suppose it clarifies matters, and removes the occasionally unresolveable 
debate about trees of which no-one was around to witness the origin and 
original germination position. It's something of an inversion of what we 
might expect here. Normally there is a fight either to shun responsibility 
for a dangerous quasi-boundary tree, or to claim resoponsibility and see off 
any threat to the tree. In Ontario it is just as likely that someone who owns 
a tree could see by statute half ownership ceding to a neighbour and with it 
all controls and the benefits of timber. And a neighbour could unwittingly 
and possibly against his will inherit by the mere passage of time 
responsibility for a neighbour's neglected and dangerous tree on a road 
frontage.

Much as Canada and the UK occasionally share sources in commonwealth law, 
this doesn't seem to be one where the UK can help.

Yiur Act indicates at s1 the use of trunk measurement at 1.37m, but that's 
not quite what's needed. You need a definition of 'trunk' and then simply to 
see if any part of said trunk crosses the boundary line. Roots can be ruled 
out, as can limbs, but where do these give way to trunk? Are the butresses 
included? And the forks supporting main limbs? Where to go with multi-stemmed 
trees? 

There are various defintions in law of where to measure a trunk (more 
commonly called a stem) but none of these that I can think of are an attempt 
to define where the stem starts or ends, they are intended to be 
representative of size in some way, eliminating the effects of basal or other 
flare, bulges etc. And I cannot think of a single statutory reference that 
relies on a definition of trunk, nor can I think of any case law that made 
this important and brought it into common law citation.

You may be as well reaching for a dictionary, because trunk surely means what 
trunk means to the common man. The ISA dictionary rather uselessly says 
"trunk - stem of a tree. See bole and stem." and then almost as unhelpfully 
greys the definition by saying "trunk flare - transition zone from trunk to 
roots where the trunk expands into the buttress or structural roots. Root 
flare." And then quite hopelessly "stem - woody structure bearing foliage and 
buds that gives rise to other stems (branches)." The last throw of the dice 
brings up "bole - main trunk of a tree below the branches, usually used in 
reference to a tall tree whose first branch is high off the ground." Thanks!

Good luck, I hope I have at least narrowed things down for you a little.

Julian A. Morris - Professional Tree Services
jamtrees.co.uk  and  highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Friday, December 30, 2016 at 12:03 PM
From: "Jim Quaife" <jq@xxxxxxxxxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Boundary trees - exact definition on the ground

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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