UKTC Archive

Re: RE: RE: Problem stump

Subject: Re: RE: RE: Problem stump
From: Julian Morris
Date: May 28 2020 15:37:22
Jim, roots are specifically excluded from the Antisocial Behaviour Act. But 
the roots are an encroachment an an abateable nuisance. That's probably why 
they don't need to be covered by the Act.

Wayne, Scotland and England have separate legal systems, the former derived 
from Roman civil law and the latter from medieval common law, but they reach 
approximately the same position, that of neighbourliness. Neither rely on 
God. If you unbalance your neighbour's tree, don't warn your neighbour and 
should ahve foreseen it would harm your neighbour, a Scottish court will have 
you the same way an English court will. As will an Irish court. See Lagan 
Navigation v Lambeg Bleaching "where there are two ways of abating a 
nuisance, the less mischievous is to be followed".

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


Sent: Thursday, May 28, 2020 at 3:57 PM
From: "Jim Quaife" <jq@xxxxxxxxxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: RE: Problem stump

Julian,
The English Anti-social Behaviour Act 2003 only deals with shading and no 
other effect of that shading or the hedge itself.  It is not unusual for 
the soil-parching effect of a cypress hedge to adversely affect a 
complainant's plants/lawn in the immediate vicinity, but that is not a 
material consideration.

Wayne,
Abating a nuisance caused by a neighbour's tree in the UK requires the dual 
considerations of reasonableness and foreseeability.  God doesn't come into 
it.  If the illustratively melodramatic outcome you posed occurred, those 
two criteria would be the focus of an English court.

Jim


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Wayne Tyson
Sent: 28 May 2020 15:27
To: UK Tree Care
Subject: Re: RE: Problem stump

The Yank here . . .

If'n y'all abate a nuisance, say, like tree limbs overhanging your
property, and said action unbalances the canopy such that the tree falls on
your neighbor, destroys her/his house and his/her family, what kind of
pickle would would you be in--or would the court conclude that it was
"God's fault?"

Wayne

On Thu, May 28, 2020 at 6:37 AM Julian Morris <jamorris@xxxxx.com> wrote:

[Text converted from HTML]
What I was getting at, Jim, was the context of statutory interference
that Bill raised. I was trying to illustrate that the High Hedges
(Scotland) Act (no inverted commas required) and its various UK
Antisocial Behaviour Act cousins creates a right of (mainly) light, nad a
remedy for 'nuisance' caused by its deprivation where none previously
existed. In effect, the state tells the tree owner is told what to do
with his trees. An Act that constrains the right of abatement would
remove the principle of ownership a caelo usque ad centrum, the principle
that manifests itself in Lemmon v Webb and replace it witha servitude
(you'd call it an easement) right of encroachment and nuisance. In other
words the state tells the neighbour to suffer the actions of the tree
owner.

Please note in Scotland the HH Act is not restricted to evergreen. Yes it
has no application to the problem stump, but it does have application to
the burning issue of whether the poor suffering neighbour has to put up
with the nuisance created by a tree owner. In the case of high hedges the
answer is no because of statutory intervention, in the case of stumps
it's already no and do we really need or want statutory intervention that
changes that to a 'yes' or a 'yes, but' and which would have far-reaching
implications that challenge the very concept of ownership?

The right to abate a nuisance is absolute, it has to be that way, as it
has been in written law for at least 3 millennia. The law modifies the
absoluteness of (as it has for millennia) that only by requiring this be
done in the least mischevious way.

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


Sent: Thursday, May 28, 2020 at 1:02 PM
From: "Jim Quaife" <jq@xxxxxxxxxxxxxxxxx.co.uk>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: RE: Problem stump

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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To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info

The UKTC is supported by Bosky Trees arboricultural consultancy
http://www.boskytrees.co.uk/