Tree down in neighbour's garden

Tree down in neighbour's garden

Postby cobaltblue » Tue Mar 11, 2014 5:33 pm

Hello,
A substantial branch fell into my neighbours gardens during the storm 14/15 Feb. It fell across two gardens, demolishing a shed and its contents on its way. After speaking to insurance companies one neighbour has had the bulk of the fallen branch removed, I have had the entire tree removed (it was healthy but too big for site). There is one 3m section now laying across the other neighbours garden. Is anyone responsible for the clearance of this? Can they throw it back over the fence? Relationship with this neighbour is poor, the kids have broken into my garden and broken garden furniture, stolen from other peoples gardens etc. We don't speak!
Many thanks!
cobaltblue
 
Posts: 2
Joined: Thu Mar 06, 2014 11:54 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Tree down in neighbour's garden

Postby MacadamB53 » Tue Mar 11, 2014 8:44 pm

Hi cobaltblue,

You don't actually say, but I assume you owned the tree.

In which case the debris is technically yours but that doesn't mean you have to shift it.

Faced with your situation I would ask the neighbour and offer to pay for its removal if that's what they wanted.

Kind regards, Mac
MacadamB53
 
Posts: 6032
Joined: Mon Dec 10, 2012 12:13 am

Re: Tree down in neighbour's garden

Postby cobaltblue » Tue Mar 11, 2014 10:37 pm

Hi Mac

Thanks for your reply, yes it is / was my tree.

Yes probably the best approach, pretty straightforward to remove.
cobaltblue
 
Posts: 2
Joined: Thu Mar 06, 2014 11:54 pm

Re: Tree down in neighbour's garden

Postby moz » Fri Jan 09, 2015 3:04 pm

Hi

I have a similar situation, so would appreciate knowing the following if you still read this board cobaltblue...my tree branch has damaged a neighbours property when it fell. Nothing catastrophic, but I was wondering if the neighbour claimed for the shed on his insurance, or you claimed on yours?, or something else?
Thanks and regards.
Moz
moz
 
Posts: 17
Joined: Thu Feb 17, 2011 1:16 am

Re: Tree down in neighbour's garden

Postby ukmicky » Fri Jan 09, 2015 11:31 pm

moz wrote:Hi

I have a similar situation, so would appreciate knowing the following if you still read this board cobaltblue...my tree branch has damaged a neighbours property when it fell. Nothing catastrophic, but I was wondering if the neighbour claimed for the shed on his insurance, or you claimed on yours?, or something else?
Thanks and regards.
Moz

You claim on yOur insurance for your property,your neighbours claim on theirs for their property. It does not matter if it was your tree as you are not liable for an act of nature.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Tree down in neighbour's garden

Postby Alan Harris » Sat Jan 10, 2015 11:54 pm

Dear All

It is not true that a tree owner is absolved by an act of nature. The owner of a tree has a duty of care to his neighbours and will be expected to take reasonable measures to look after their trees if they pose a threat to neighbours. If a tree is in obvious poor condition the owner has a duty to have it inspected and maintained. That does not mean that the tree owner has to be an expert, only that he or she must show care as an ordinary person so that obvious defects are investigated and corrected safely. Large fungal bodies, dying branches or unseasonal leaf fall and split branches are indicators of obvious safety risk. We are in a health and safety society now and it is less likely that courts will accept that tree owners can allow damage to be caused to neighbours or others as a consequence of a tree owner aledging that he or she did not relise that the nature may be likely to cause the tree to fail.

When damage occurs to neighbouring property the neighbour's insurers will be liable for the neighbour's losses but they will examine the circumstance to find out whether the damage was caused by nature (eg gale force winds) or whether the tree owner contributed in some way by negligence. If there is negligence then the neighbours insurers will almost certainly seek recovery of their losses from the tree owner's insurers. The tree owner may also then be liable to their insurers if they did not comply with the terms of the policy to keep insurers informed of facts relevant to the insured risks. At the very least a tree owner's insurer should be informed of any events injuring neighbouring property as failure to do so may invalidate their policy for a future event.

Tree owners should in all events act with care and responsibility for damage which may be caused by their trees. If there is any doubt at all about the risk of damage being caused by a tree call in a consulting arboriculturist to examine the tree and then follow his or her recommendations.

best regards


Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
Alan Harris
Expert
 
Posts: 495
Joined: Fri Feb 25, 2005 12:46 am
Location: Hayes, Kent

Re: Tree down in neighbour's garden

Postby ukmicky » Sun Jan 11, 2015 12:27 am

Hi Alan

Nice to see your about still.

To some degree what you are saying is correct but as you say we are not expected to have the knowledge of an expert and as we are also not expected to have our trees inspected unless we are aware that something is wrong any claimant will normally have a major battle showing that the tree owner knew or ought to have known that the tree limb was in danger of dropping.

My Lord I didn't see the crack in the limb even though I occasionally look at the tree, maybe It was concealed by the bark or I just didn't see it due to its position in amongst the other branches .

My Lord yes counsel are correct the leaves did drop early this year but that occasionally happens to trees , I've read a dry summer causes it.



We are also not expected to pencil in anytime solely to visually inspect the tree or every major limb and there is case law which says the occasional glance up at the tree as the defendant passed by was enough to fulfil his duty of care.

Once the limb has dropped proving he knew or ought to have known the tree was a danger becomes even harder especially if it is a localised defect.

Its can be very hard to prove liability.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Tree down in neighbour's garden

Postby Alan Harris » Sun Jan 11, 2015 12:44 pm

Hello again

I agree with your points generally but my main intention is to point out that the mystical failure of trees is becoming less mystical because of new techniques which are available for determining whether or not trees are unstable (or likely to cause subsidence or heave). We used to blame events on an "act of god" and whilst we cannot prevent gale force winds affecting poorly rooted trees we can find out whether the trees which we own are a risk to neighbours or our own families or visitors. It is reliably estimated that 100million trees form the urban forrest where people live ever closer to each other and our trees. Gone are the times when we could ignore the risks caused by our trees.

Trees appear to grow slowly but time passes quickly so the change in height of a leylandii by 8m to 10m in a decade is a massive change. Even slower growers often would become 5m to 6m higher in the same period.

I have had many clients with very large trees and who have not seen them as a liability nor have they noticed size change during their ownership. A former neighbour planted a eucalyptus in about 2003 and it is now taller than an adjacent street sycamore tree which is probably 50 years old!! Fast growing eucalyptus trees are particularly susceptible to high winds.

So anyone who owns large trees should be safe rather than sorry and get some good advice from a competant arboriculturist. You don't have to be an expert but a quick look once every decade or so is not enough.

best regards


Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
Alan Harris
Expert
 
Posts: 495
Joined: Fri Feb 25, 2005 12:46 am
Location: Hayes, Kent

Re: Tree down in neighbour's garden

Postby jdfi » Sun Jan 11, 2015 11:29 pm

The comments of Alan and Micky are backed up in the recent case of South West Trains v Hind & Steel:

http://www.bailii.org/ew/cases/EWHC/TCC/2014/1891.html
jdfi
 
Posts: 444
Joined: Wed Jun 06, 2012 10:39 pm

Re: Tree down in neighbour's garden

Postby moz » Mon Jan 12, 2015 3:36 pm

jdfi wrote:The comments of Alan and Micky are backed up in the recent case of South West Trains v Hind & Steel:

http://www.bailii.org/ew/cases/EWHC/TCC/2014/1891.html


A fascinating case, and, for someone like myself who owns several other trees near/over neighbours houses, very interesting reading. Despite the outcome of this case I'm just about to ring one of the Arboricultural Association Registered Consultants to ask them if they will come around and inspect those specific trees with a view to them not dropping any more branches on my neighbours. Or at least taking all reasonable steps to prevent this sort of case developing.....

Moz
moz
 
Posts: 17
Joined: Thu Feb 17, 2011 1:16 am

Re: Tree down in neighbour's garden

Postby Alan Harris » Tue Jan 13, 2015 11:31 am

Dear All

The link to Stagecoach v Hind is very interesting. It appears that owners who have a good understanding of trees can carry out regular inspections of their trees without using a professional unless there are clear signs of distress in the trees. An owner with a poor or average understanding of trees must use a professional to inspect the trees simply because of their own lack of understanding.

The case is about a 2009 event and technology is moving forward quickly. I would not be at all surprised if cheap non-destructive methods of diagnosing tree defects become commonplace. If so tree owners will be increasingly expected to employ professionals to carry out such tests on a more regular basis - so watch this space!

regards


Alan Harris
Alan is a consulting engineer specialising in subsidence, tree roots, soils and party wall surveying.
Alan Harris
Expert
 
Posts: 495
Joined: Fri Feb 25, 2005 12:46 am
Location: Hayes, Kent

Re: Tree down in neighbour's garden

Postby ParallelLines » Tue Jan 13, 2015 9:31 pm

A most interesting and helpful thread :D.

Ofcourse another reason to check is trees can kill. I recently had a 60yr old Sycamore taken down which had simply grown too big for a domestic garden and was blocking a lot of light. The guys cut it into liftable segments and about three of them had a hole in the middle the size of a football. The tree was right at the end of the garden on one side too.

So I would say it's worth going the extra mile in order to have a clear conscience.
ParallelLines
 
Posts: 144
Joined: Sun Jun 29, 2014 3:41 pm

Re: Tree down in neighbour's garden

Postby ukmicky » Wed Jan 14, 2015 2:12 am

Alan Harris wrote:Dear All

The link to Stagecoach v Hind is very interesting. It appears that owners who have a good understanding of trees can carry out regular inspections of their trees without using a professional unless there are clear signs of distress in the trees. An owner with a poor or average understanding of trees must use a professional to inspect the trees simply because of their own lack of understanding.

The case is about a 2009 event and technology is moving forward quickly. I would not be at all surprised if cheap non-destructive methods of diagnosing tree defects become commonplace. If so tree owners will be increasingly expected to employ professionals to carry out such tests on a more regular basis - so watch this space!

regards


Alan Harris



The below quotes from the case say something different to me.


The question the judge ask himself

Is an ordinary landowner obliged as a matter of course to instruct an expert arboriculturalist i) Issue 1: Is an ordinary landowner obliged as a matter of course to instruct an expert arboriculturalist to carry out regular inspections of the trees on his or her land?to carry out regular inspections of the trees on his or her land?


His answer


The omission is telling. I can see no basis in the authorities for the proposition that a reasonable and prudent landowner is obliged, as a matter of course and without any trigger or warning sign, to pay for an arboriculturalist to carry out periodic inspections of the trees on his or her land. In my view, that is coming far to close to making the landowner an insurer of nature. It is contrary to the principles of law that I have summarised above. It is contrary to the approach of the Court of Appeal in Micklewright (and the first instance cases referred to in paragraph 66 above, and the note in Charlesworth and Percy), which all proceed on the basis that a closer inspection by an expert was only required where something was revealed by the informal or preliminary inspection which gave rise to a cause for concern.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Tree down in neighbour's garden

Postby Treeman » Wed Jan 14, 2015 8:33 am

Just to muddy these "clear waters" a little

The courts notwithstanding if the owner of the land is a company, the Health and safety executive have a say. They hold corporate bodies to a pretty high standard, there have been drum banging's of corporate manslaughter where negligence is involved.
Treeman
 
Posts: 3993
Joined: Fri Feb 25, 2005 8:02 am

Re: Tree down in neighbour's garden

Postby Roblewis » Wed Jan 14, 2015 12:38 pm

Treeman

When the HSE are involved though the tests look far more towards competency, negligence and incompetence of the owner. They are after all looking to secure a criminal conviction and NOT make any judgement on civil liability. In the case of tree owners they have looked very much towards the assumed competency of the owner concerned such that large landowners and other organisations who own trees are presumed to have greater knowledge of the issues than the ordinary man in the street. If it was in your own garden though you personally may be at greater risk :D :D :( :( .

The decided cases are messy in their outcome but like many civil courts judges do seek to ensure somehow that an insured party is left with the bill.!!!!!! If there had been injury or fatality however then the police and the HSE will be looking for potential criminal offences. The problem with HSE offences though is that the ACCUSED has to demonstrate he has done all that is reasonably practicable that a person in his position could reasonably have done.
Roblewis
 
Posts: 1764
Joined: Mon Jan 24, 2011 12:41 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Trees

Who is online

Users browsing this forum: No registered users and 4 guests