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Some more thoughts:
Similar laws in the States. The neighbor has the right to protect his
property, but cannot reasonably harm the tree in doing so. As was already
pointed out, a sycamore would likely survive the loss of part of the
trunk. The size of the crown does not pose any imminent risk of failure
in the near future.
Were this my case (as a consultant, not as a TO or involved in planning),
I would suggest that the whole stump be removed at the developer's
expense, and that another tree be planted for the adjacent owner as an
olive branch (but not necessarily an olive branch). It is not worth
holding up a project for this.
---
Russ Carlson, RCA, BCMA
ASCA Registered Consulting Arborist #354
ISA Board Certified Master Arborist PD-0008B
ISA Tree Risk Assessment Qualification
Tree Tech Consulting
114 Grand Canyon Court
Bear, DE 19701
302.832.1911 phone
thearborist@xxxx.com
www.tree-tech.com
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On 5/27/20 5:19 AM, Alastair Durkin wrote:
Hi Bill
This isn't something the planning officer would get into in any way. The
boundary of ownership is a matter of fact (presumably), and the applicant has
to sign the certificate on the application form to that effect. Just because
planning permission is granted (or not) does not mean any common law
considerations are overridden. The planning officer wouldn't even discuss it
I wouldn't have thought.
Alastair
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Bill Anderson
Sent: 27 May 2020 10:00
To: UK Tree Care <uktc@xxxxxx.tree-care.info> Subject: Re: [EXTERNAL]
Re: Problem stump
While I share the sentiments Ron (and Alastair) implies here, who actually
"took the law into their own hands?" Was it the party who allowed the tree to
grow over the property boundary? Or is it going to be the party that
exercises the right to self-abatement of nuisance? Or could we look upon the
Highway Engineer who demanded that an access be a minimum width as being the
party that turned a "minor inconvenience" into an "actionable nuisance?"
On the odd occasion I've been called upon to advise in cases where
neighbours are objecting to an adjacent development, I've advised that the
nuisance that is definitely not actionable, that is shade cast by a tree
rather than potential damage to roots or pruning branches back to a boundary,
is a more powerful reason, as there's no right of self abatement of shade
nuisance. The argument of "if you let that building go up, the occupants are
going to be permanently complaining that my tree, which makes a great
contribution to the neighbourhood's landscape and biodiversity, is making
their property unliveable," seems more pertinent than nuisance from roots or
overhanging branches.
If I was a Planning Officer I'd try and leave Trevor's case to his client
and neighbour to sort out between themselves.
Bill.
On Tue, 26 May 2020 at 10:19, Alastair Durkin <ADurkin@xxxxxxxxxx.gov.uk>
wrote:
Hear hear!
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Howe, Ron
Sent: 26 May 2020 09:40
To: UK Tree Care <uktc@xxxxxx.tree-care.info> Subject: RE:
[EXTERNAL] Re: Problem stump
An 'actionable nuisance' is something that's actionable in a court of
law and not something where a person can just take the law into their own
hands.
Ron.
-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info
<uktc-request@xxxxxx.tree-care.info> On Behalf Of Trevor Heaps
Sent: 22 May 2020 14:16
To: UK Tree Care <uktc@xxxxxx.tree-care.info> Subject: [EXTERNAL]
Re: Problem stump
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________________________________
Thanks Julian,
Guessing the other part-tree owner (who will no longer cooperate and
agree to the stump’s removal) should be pre-warned about the potential
future failure of the tree.
Cheers
Trevor Heaps
Chartered Arboriculturist
BSc(Hons), MICFor, M.Arbor.A
07957XXXXXX
trevor@xxxxxxxxxxxx.co.uk http://www.trevorheaps.co.uk
On 22 May 2020, at 08:01, Julian Morris <jamorris@xxxxx.com>
wrote:
Seems clear cut (no pun intended) to me. IF the tree is not your
client's and no argeement is in place or could be asserted by the
neighbour that it is managed mutually AND IF he MUST widen the road,
then the tree is creating an actionable nuisance by encroaching on his
land in a way that prevents the reasonabe use of the land AND IF there
is no other solution, he can remove pat of it regardless of the
consequences for the tree or the neighbour.
Julian A. Morris - Professional Tree Services jamtrees.co.uk and
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX
Sent: Thursday, May 21, 2020 at 6:41 PM
From: "\theapsy@xxxxxx.com\ (theapsy@xxxxxx.com)"
<uktc@xxxxxx.tree-care.info> To: "UK Tree Care"
<uktc@xxxxxx.tree-care.info> Subject: Problem stump
Hi all,
As part of a redevelopment, my client needs to widen very slightly a
small access road. On the side of this road, there is an old, decaying
(but
re-sprouting) Sycamore stump (see photo).
Ownership is unclear, but client thinks the centre of the stump
would be
slightly further into the neighbouring property than his access road
(so not the client's tree).
No TPO, no Con Area and no Planning Permission granted.
Not very good practice I know, but he wants to exercise his common
law
right and cut a wedge out of the tree stump in order to provide room
for the widened road (Highways have insisted it needs to be a certain
width).
I've never come across this scenario, so wondered if he would be
within
his rights to cut away the offending part of the tree stump? It'll
leave a big wound, but tree is knackered anyway...
Any thoughts?
Cheers
Trevor
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