UKTC Archive

RE: Tree failure potential assessment study WAS Civil cases for nuisance or damage to property

Subject: RE: Tree failure potential assessment study WAS Civil cases for nuisance or damage to property
From: Alastair Durkin
Date: Jan 13 2020 12:23:27
Julian
All the guidance for England and available case law points to the need for 
the nuisance to be actionable - causing or at immediate risk of causing 
damage. Roots just being there do not constitute an exception to the TPO as 
far as the Government is concerned (albeit it is the courts that are the 
arbiters). So a condition to protect the roots (within the application site) 
of a TPO tree growing offsite is perfectly reasonable. A condition requiring 
the retention of an offsite tree is not reasonable - of course - for the 
reasons you have already given.

😊

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Julian Morris
Sent: 13 January 2020 12:07
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Tree failure potential assessment study WAS Civil cases for 
nuisance or damage to property

[Text converted from HTML]
Mike, I will pop into the national library to have a look at the new edition 
of Mynors. The Mitchell in Glasgow might have it too.

I suppose you could say that the courts in the reported cases took the matter 
seriously, so it does happen. There's always the de minimis rule, the courts 
won't consider trivialities and a lawyer probably would advise against 
trying. Also there's the test of 'actionable' for nuisance that was mentioned 
in Lemmon v Webb but has no formal meaning except perhaps that it means the 
same as not de minimis. And cost of actions, especially fear of losing and 
having the other side's costs to bear too, is a practical deterrent.

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


Sent: Monday, January 13, 2020 at 10:16 AM
From: "AV Arboriculture" <mike@xxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: Re: Tree failure potential assessment study WAS Civil cases
for nuisance or damage to property

Wayne, yes you have a point.
Michael, thanks for the references - to be honest, I just wanted a
straw poll of people who knew about any UK civil cases being taken seriously 
by the courts. Nevertheless, it's useful to know about these books. I am 
familiar with Mynors but I don't remember seeing him reference any case 
specifically?
Julian, I normally go to there National Library of Scotland in
Edinburgh to look at Charles's book.

Mike

Regards,

Mike Charkow
Principal Arboriculturist
______________________
Arbor Vitae Arboriculture Ltd

Planning surveys, Tree inspections, Bats in trees inspections,
Arboricultural consultancy, Soil de-compaction, Root Investigation, Woodland 
Management.

[ mailto:info@xxxxxxx.co.uk | info@xxxxxxx.co.uk ] [ 
https://avtree.co.uk/ | www.avtree.co.uk ]
07917XXXXXX
Company Registration Number: SC413171

----- Original Message -----
From: "Michael Richardson" <richardsontreecare@xxxxxx.com>
To: "uktc" <uktc@xxxxxx.tree-care.info>
Sent: Saturday, 11 January, 2020 23:15:06
Subject: Re: Tree failure potential assessment study WAS Civil cases
for nuisance or damage to property

There are multiple books on tree cases and the law

Trees and Law in Canada by Julian Dunster *Tree Law Cases in the USA*, 
Second Edition by Lew Bloch Understanding Tree Law: A Handbook for 
Practioners

Law of Trees, Forests and Hedges by Mynors


Michael Richardson B.Sc.F., BCMA
Ontario MTCU Qualified Arborist
Richardson Tree Care
Richardsontreecare.ca
613-475-2877
800-769-9183

<http://www.richardsontreecare.ca/images/Tree_Doc_logo_email.png>


On Sat, Jan 11, 2020 at 5:40 PM Wayne Tyson <wt750mv@xxxxxx.com> wrote:

Mike Charkow,

Somewhat tongue-in-cheek but (contrarily and seriously), I might
suggest
that the construction of the fence and slab might have caused damage
and to
the root system and compromised its integrity, possibly compromising
the
tree's well-being and shortening the tree's life, not to mention
weakening
the tree's ability to support itself constitutionally and 
physically,
as
well as the slab depriving the root system of air and water, thus
causing
the root system to favor the part of the soil profile nearest the
surface,
i.e., the slab as well as possible or probable damage to the root
system by
the digging of fencepost pits, not to mention the installation of 
underground facilities such as foundations, utility facilities, etc.

On the other hand, the planting of a large-growing tree in a 
location
close
to a property line by someone who knew or should have known that it
would
encroach upon an adjacent property might also be questioned. If the
tree
was natural, both owner and neighbor might be guilty (as if there
were any
justice for Nature's voiceless) of compromising the tree's rights to
the
quiet enjoyment of its home and sustenance, as well as expectations
of
freedom from injury.

I'll be interested to know (and get links to) any cases and
judgments. Do
tree's have standing?

Wayne



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The UKTC is supported by Bosky Trees arboricultural consultancy
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