UKTC Archive

Re: Boundary root pruning.

Subject: Re: Boundary root pruning.
From: Wayne Tyson
Date: Oct 11 2018 04:01:19
 Henry VI, Part 2 <https://www.owleyes.org/text/henry-6-part-2>
Act IV - Act IV, Scene 2

*Cade:*
I thank you, good people—there shall be no money; all shall eat
and drink on my score, and I will apparel them all in one livery,
that they may agree like brothers, and worship me their lord.

*Dick:*
The first thing we do, let's kill all the lawyers.

On Tue, Oct 9, 2018 at 9:42 AM Julian Morris <jamorris@xxxxx.com> wrote:

Here's it anyway, the original and best 1894 vintage decision.

Agreed there's nothing definite on ranking, but I think 'warning' bridges
the gap. The cases cited 1848 - 1851 suppirt that. No further comment
requested, the search continues in 'the other world'.

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


Sent: Tuesday, October 09, 2018 at 4:29 PM
From: "Jim Quaife" <jq@xxxxxxxxxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: Boundary root pruning.

Roots were added to v W much later than 1894 - I stand to be corrected
but I seem to recall dimly that it was 1951 (being told that is!).
The question that a test case would answer (possibly!) is the "ranking"
of L v W and causing damage to private property. There are no actual
definitive comparators.
Jim

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info [mailto:
uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian Morris
Sent: 09 October 2018 12:50
To: UK Tree Care
Subject: Re: RE: Boundary root pruning.

We seem to have two or maybe 3 diverging debates here - right to abate
under exception on TPO trees and liability for abtaing at common law.

Alastair has quoted the relevant English guidance on the latter, and the
exception is clear, you may do tree work necessary to prevent or abate a
nuisance, and Perrin exhausts the 'necessary' debate. Maybe I am brave, but
I have no problem taking the Act wording literally without legal advice.
Besides, I re-read Perrin at least once a quarter whether I need to or not.

On the former, and setting aside my Dr Mynors-derived view that the
exception for TPOs is tantamount to a statutory equivalent of common law
rights, I note that the Network Rail decision considered L&W to be obiter
on the question of whether nuisance had to cause damage, but more
fundamentally L&W was about one thing only, and that was whether the tree
owner was entitled to notice of abatement. All the other stuff about right
to pruning was stated as not under dispute, on the way to considerinng the
right to notice.

What I have never been able to find is a narrative about why Lemmon took
that question so far. Why did he want notice? Had the lack of notice caused
a failure and loss. Or was Lemmon just miffed? Does the decision say that
no notice is required so there would be no liability for foreseeable
failure after un-notified abatement? Or is that matter still open becasue
it wasn't pertinent to L&W?


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


Sent: Tuesday, October 09, 2018 at 11:53 AM
From: "Jim Quaife" <jq@xxxxxxxxxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Boundary root pruning.

The Network Rail Jap Knotweed decision found against NR just because
the presence of JK in two neighbouring gardens compromised the lawful
enjoyment of their property, even though there was no damage.
Apropos L v W, as I mentioned before there has been no test case in a
high court, but from my experience I would GUESS that if the exercise of L
v W cased the failure of a tree with consequent material loss, the element
of foreseeability would be a major criterion.
I also made the pint which Jin echoes, that none of us is a lawyer!
Jim

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Jon Heuch
Sent: 09 October 2018 11:27
To: UK Tree Care
Subject: Re: Boundary root pruning.

I take Alistair's point on board - that we are fishing in legal waters
without any licence.



However, I believe the government guidance just quoted is wrong or at
least doesn't tell the full picture.



You need to read paras 29, 59(3) & 66 of the Court of Appeal decision
of Perrin v Northampton...I have spent at least 3 train journeys going
through both the original decision, the appeal and the Barney-Smith appeal
decision in order to write something meaningful on what "necessary" means
with regards to exceptions to TPOs. The word appears a mere 122 times in
the appeal judgment - how laboured can it get!



The original judge for the case stated that a nuisance had to be
actionable.
The appeal court questioned this and left it open. There is at least
one legal commentary that suggested the legal door is now ajar for someone
to press open fully but for me to explain requires knowledge of what is
termed "obiter"...



Don't go cutting off encroaching branches of protected trees just yet
without permission but someone somewhere might be able to convince a judge
that you can.



Jon Heuch  BSc(For.), PhD, MICFor, MArborA





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