UKTC Archive

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

Subject: Re: RE: Boundary trees - exact definition on the ground
From: Bill Anderson
Date: Dec 31 2016 14:09:32
When explaining matters such as these to non-Arbs it's sometimes useful to
think of hedges rather than trees. Thus you can have conversations along
the lines of "if your neighbour plants a hedge inside the boundary line,
then it's his hedge and responsibility for managing it (at your side) is
his." It sometimes seems that people find it easier to visualise management
when it's something as commonplace as hedge cutting. And obviously if you
were planting a hedge it seems reasonable to actually have the conversation
about where it is (either side of the boundary) before you start.

And while we're on the topic and probably not helping Julian (Dunster) at
all, one of the most telling things that Charles Mynors wrote in his books
is that if people routinely went around disfiguring their neighbour's trees
by cutting them back to the boundary, new Laws would be drawn-up pretty
quickly. He was making the point that most neighbours bumble along and put
up with the minor inconveniences posed by overhanging trees, nobody wants
to see cities full of trees pruned to be flat-sided, even if that's what
the Law might allow.

And oh yes, the second edition of Mynors seems to go into quite a bit more
detail on this topic than the first Julian.

Bill.





On 30 December 2016 at 15:53, Julian Morris <jamorris@xxxxx.com> wrote:

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@lists.
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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