UKTC Archive

RE: RE: [EXTERNAL] Problem stump

Subject: RE: RE: [EXTERNAL] Problem stump
From: Alastair Durkin
Date: May 28 2020 10:05:03
Well, yes, there has always (for our purposes) been a right to abate the 
nuisance. But that assumes that the abatement is possible under common law, 
and without court action, which won't always be the case  - so there does 
need some distinction made. But in this case, you are right, if there is a 
nuisance (by reference to the tree crossing a legal boundary), then it should 
be a relatively simple matter of abatement. 

Alastair


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Julian Morris
Sent: 28 May 2020 09:46
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: [EXTERNAL] Problem stump

Ron/Alistair, this appears to be an invention of a definition. Here's how the 
law stands based on case law and civil/common law.

An actionable nuisance is one where the party suffering the nuisance could 
raise an action to force the tree owner to abate the nuuisance. That doesn't 
mean he has to. He could suffer it, or he could abate it himself. The 
circumstances where action would be most appropriate would be where the 
nuisanced owner wishes the expense of abatement to be borne by the nuisancer, 
or where abatement is not possible without access to the nuisancer's property 
or perhaps where the nuisancer is in denial and needs to be told by a court 
that he has an obligation to abate the nuisance.  

Summary; An 'actionable nuisance' is something that's actionable in a court 
of law AND something where a person can just take the law into their own 
hands.
 

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


Sent: Tuesday, May 26, 2020 at 10:18 AM
From: "Alastair Durkin" <ADurkin@xxxxxxxxxx.gov.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: [EXTERNAL] Re: Problem stump

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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The UKTC is supported by Bosky Trees arboricultural consultancy
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