UKTC Archive

RE: Problem stump

Subject: RE: Problem stump
From: Jim Quaife
Date: May 28 2020 11:52:52
The "High Hedge Act" only applies to hedge height relating to the 
interruption of light, and the hedge has to be evergreen with 2 or more trees 
having touching crowns above 2 metres in height.  Obviously this has no 
application to the problem stump.
What may be more pertinent to the stump in question is Lemmon v Webb.  If any 
action in exercise of this caused the demise of a tree I am advised that a 
court would in all likelihood examine whether the action was reasonable and 
whether the outcome was foreseeable.
If one cut off all the roots of a tree next to a boundary it would, I 
suspect, not qualify for either of those considerations!
If the problem stump can be solved by relatively minor cutting, and of course 
all such matters are a question of degree, then it falls to a matter of 
opinion.
If the situation escalated into abatement of nuisance, that would involve a 
different, and possibly more demanding proof of evidence.
Let's not plunge into the OLA!
Jim  

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian Morris
Sent: 28 May 2020 12:23
To: UK Tree Care
Subject: Re: RE: [EXTERNAL] Problem stump

[Text converted from HTML]
Your recollection's correct, but remember we are discussing actionable
nuisance rather than trivial encroachment, which is a special non-routine
case.

Also worth mentioning, high hedge legislation created a statutory right
of light and other enjoyment AND a remedy for nuisance. The E&W and NI
Acts are a joy compared to the complete hames made of it by Scottish
Parliament (following recent Court of Session decision I'll be doing an
article on it in next Arb Mag if anyone gets it).

If society demands a Mug Tree Act, I can't see it getting far. Unlike HH
legislation it would be removing the right to use your property as your
own, giving a neighbour a statutory right of nuisance and encroachment.
If on the other hand it said that encroachments had to be subject to some
tests about quality of work, warning neighbours of likely
destabilisation, only abating actionable nuisance etc... well we already
have those laws, express and implied.

A statutory right of nuisance? No thanks.

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


Sent: Thursday, May 28, 2020 at 11:57 AM
From: "Bill Anderson" <anderson.arb.original@xxxxxx.com>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: Re: RE: [EXTERNAL] Problem stump

Saint Charles points out somewhere in his books, I can't actually find
it
ATM, that if people routinely went around disfiguring trees to abate
nuisance, new Laws would be demanded. Some might say this is unlikely,
but
we (the public at large) demanded Laws about Leyland Cypress hedges and
we
got em. I'm not saying they're very good Laws, I might even go so far
as to
say that they're completely unsatisfactory, but nonetheless the public
wanted something and Tony Blair (who might have been a Lawyer once,
IIRC)
gave us something.
If a new Law, to prevent disfigurement, turned out to be as
not-very-good
as the high hedges Laws, then I think I might prefer the existing
situation, where I can at least tell people not to get into daft
arguments
about trifling matters. Warning people about the costs of Lawyers is
always
a good discouragement.
Bill.

On Thu, 28 May 2020 at 11:05, Alastair Durkin
<ADurkin@xxxxxxxxxx.gov.uk>
wrote:

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



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