Removal of Beech Hedging

Re: Removal of Beech Hedging

Postby Roblewis » Wed Jan 09, 2013 1:24 pm

Custom and Practice - If the deed plan is not specific then the courts will look at what has been generally agreed between owners over the preceeding years and any other information. If there is nothing to really contradict the presumption of sharing then that is the way the courts will go. In the end they willhave the complicated task of proving it is not shared.
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Re: Removal of Beech Hedging

Postby Adviceseeker » Thu Jan 10, 2013 9:35 am

Many thanks for that info. roblewis, that falls in line with what the previous owner conveyed. As for the deeds we have, and the Land Registry hold, (as per the q from cloudeyes), they show the boundary marker around the houses in the street on an A4 sheet of paper, and just state that there is a boundary on all 4 sides of the house but nothing more speciific that that, ie no measuerments or who they belong to.
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Re: Removal of Beech Hedging

Postby Adviceseeker » Sun Dec 21, 2014 10:08 am

Update on this case and a warning as to where it can end up.

After months of asking what right the neighbours had to take the hedge away without prior discussion and asking for the evidence to back things up, we eventually received an email from the son of the neighbours suggesting we appoint a boundary surveyor to determine where the boundary was, a bit late after the event. After our reply to him it all went quiet again, and we told them if we didn’t get answers we would issue proceedings, and after telling them in 2 further letters that we wanted the hedge re-instated and what it would cost, and giving a chance to reply, over a 3 month period, we issued proceeding in the small claims court, as litigators in person, i.e. did it ourselves, in March 2013. 3 days after this we received a letter, stating that the son had been to see 2 solicitors and they had advised them if they wanted to sell the property, they would probably have to re-instate the hedge.

After issuing the claim, Plexus Law, a firm of solicitors contacted us to say they were representing the neighbours, as it turned out, they are a firm, owned by the insurance companies, and concentrate on work provided mainly by the insurance companies.

In reply to our claim they claimed they had the right to do what they had to alleviate the subsidence, and provided us with a copy of the arborcultural report stating why they had arrived at their conclusions and copy of the neighbour’s deeds. The report had the following main points

1. The hedge was 1 metre from the wall
2. The boreholes were indicated to have been undertaken adjacent to the property.
3. The tests found 1 beech root, and 6 other similar in one bore hole to the front and Lawson cypress roots in the other at the rear, the latter we weren’t bothered about as they were 40 ft high and in their garden anyway.
4. The side wall that had subsidence had foundations of 75mm at the front, and 150mm to the rear in clay soil.
5. They would undertake monitoring.

Errors and items not mentioned were.

1. The actual distance to the hedge is approx 1.5m
2. The foundations extended 600mm from the wall, therefore by their own inaccurate statement the boreholes had to be taken nearer the hedge than the wall
3. The workmen undertaking the borehole test were seen to keep moving the auger nearer to the hedge, because they kept hitting obstacles, one of which we know is a collapsed soak away pipe, until it was less than 300mm away, from the hedge i.e. approx 1.2m away from the wall.
4. No mentioned was made of the collapsed soak away pipe and the effect that could have had on the subsidence.
5. No mention was made of the drought conditions that had occurred when they undertook the survey in may / June 2011, (March 2012 was when they were planning on restricting water supplies because reservoirs were emptying)

The deeds to the neighbours property stated that the first owners will plant a hedge of beech privet or similar on the North, South and West boundaries, and thereafter maintain it in a sound and trim state, and were claiming they owned the hedge.

As the neighbours claimed it was their hedge, we basically offered them the hedge to settle the dispute on the basis that they maintain all of the hedge in the future, including our side, and draw documentation up with the deeds etc., to state that, and that they compensate us and the previous owner as we had maintained the hedge for 23 years between us (up to 2012), and they would also have to do that for the 2 properties that backed on to them on the Northern boundary. We also pointed out the consequences, when it came to selling their property. Copies of this went to the courts and Plexus, (May 2012), we heard nothing back from the Defendants

A case management conference was arranged for 17th September 2012.
The settlement we offered at that we were willing to give the neighbours the hedge, was rejected by the Defendants barrister, on 2 occasions. Firstly prior to the case management meeting, we broached the offer we’d made with the barrister, and stated” we don’t know why we are here, because we’ve offered the Defendants everything they’ve asked for”, (meaning we claimed the hedge was shared, and they disagreed with that, as they stated it was theirs and we offered them the hedge and pointed out the consequences), the barrister refused the offer, on the Defendants behalf stating “the neighbours don’t want the hedge”. We then asked the barrister, ‘if they don’t want the hedge, what do they want, in order to resolve the matter? The barrister replied “he didn’t know, but they definitely don’t want the responsibility of the hedge”.

In the case management meeting with the Judge, we again raised the issue stating it wasn’t an issue regarding the boundary but an issue regarding the ownership of, and right to remove the beech hedge, and stated to the Judge we’d offered the Defendant’s the beech hedge, and again, the barrister stated that his clients didn’t want it, at which point the Judge dismissed this argument, and ordered a boundary surveyor to be appointed to determine where the boundary was between the two properties.
The boundary surveyors came and did the survey and produced a report in Jan 2014, giving the showing the hedge to be within the boundary on the neighbour’s side. However when we asked the surveyor to indicate measurements from the properties to the boundary, the figures match what was on the ground, when pointed this out the surveyor returned, discovered the error they had made and issued a corrected survey and report, stating the hedge was shared

In the meantime Plexus Law had dashed a request on receiving the first report to the courts asking for the case to be closed and requesting expenses against us, because of this, the Courts re-arranged the next case management conference.

At this point we thought things were becoming too complex for us and saw a solicitor, who agreed to represent us on a no win no fee basis.

He attended, the next case management on our behalf thinking it would be straight forward. The judge at this meeting basically said to the Defendants barrister, I suppose you want another boundary surveyor, it too complicated for me to deal with we’ll send it to Leeds Chancery Court.
The second boundary surveyor attended site in April 2014, the first words t us were I’m on a jolly today, I’m not claiming expenses, he later stated he took couple of measurements, but we didn’t see him take any, did a lot of talking, about insurance companies and judges and what damage they do because they’re stuck behind desks with their heads up their a***s, and went on about how he prefers mediation as opposed to surveying, and saying put the hedge back it’s your property, insurance companies can’t tell you what to put on your property, and basically a couple of more hours of ranting along the same lines.

A couple of weeks later the report comes back stating because of the fact that there can be discrepancy of + or – 0.5M when scaling up OS maps, he cannot define the boundary, but on the basis of the property next door, having being built prior to our property, then the ownership of the hedge belongs to neighbours, a boundary surveyor, stating he cannot define a boundary, and then making his conclusions based on legal assumption a field he is not an expert in.

The next case management in the Leeds Chancery Courts with a District Judge, begins with the DJ asking the barrister, if they had removed the hedge without speaking to us, the barristers reply was “yes, but we did leave the stumps”. The DJ was taken aback by the reply, but then stated, you had not right to do that there’s a covenant protecting the hedge, the subsidence and the covenant are 2 separate issues” a hedge will go back, you can put a barrier in to protect the property”, he also stated this should not have gotten this far, get round a table and sort it out, it stops here.

The Defendants ignored the views put forward by the DJ, and make an application to the court to bring in an expert arborculturist, to try and justify why they had removed the beech in the first place, and why it couldn’t go back. This was allowed.

On two occasions our solicitor requested the Defendant’s solicitors, to get round the table and use ADR, alternate dispute resolution, as both parties had signed up to it initially, again they turned down those requests, and low and behold it ended up at trial on 11/12/14.

The case apparently revolved around 2 or 3 issues, first if the hedge could be removed because of the covenant, this went against us as it was deemed to be a positive covenant and therefore only enforceable between the builder and the first occupier, (if it had been a negative covenant the hedge would not have been able to be removed, i.e. if it had stated you will plant a hedge and it cannot be removed).

The second point was if it was a jointly owned hedge or belonged to one or other properties, again the decision went against us the judge stating that he could grasp the concept of a hedge ever being shared, and can only belong to one property, which confused most of the people in the court, as most people look at a shared hedge as being trunks that are contained within the hedge being dispersed either side of the boundary.

The third point followed on from the second in the opinion of the judge as if a hedge cannot be shared then it has to belong to one of the 2 properties, and as the neighbour’s property was built / registered first, the judge inferred it belonged to the neighbours.

At this point our barrister informed us that we weren’t going to win the case, and had to try and reach a settlement, the contents of which are, the neighbours are to pay for a contractor who will come and cut their hedge from our property twice a year, we are prevented from planting a hedge were the original one was removed, and they will after the boundary has been marked erect a fence along the line for the distance of the removed hedge.

After the settlement was reached the judge did criticise the defendants, (the insurance company), for letting it get this far and not settling sooner, and stated their costs were out of all proportion, to the dispute.

The settlement was effectively what had been offered to the Defendant’s in May 2013 / September 2013, why hadn’t they accepted it then. To this question we know the answer, as there are 2 defendants in this case, the neighbours who didn’t want the hedge once the implications had been pointed out, and the insurance company who were bankrolling the situation, and wanted the neighbours to have the hedge so it would justify what they did in removing it, they are not now bothered that the neighbours will have difficulty selling their property if the ever want to move, we look at it as gaining a free gardener.

As regards the judges, we are at a loss to see how one judge can advise t a party to do one thing and then another can do exactly the opposite. The only explanation we’ve been offered is that depending on the background of the judge, if he is from a barrister he takes things on a purely point of law basis, whilst a judge from a solicitors background, who has contact with “everyday Joe”, will try and find a compromise situation to both parties.

Never ever rely on experts being right, as lay people we’ve had been able to understand

• An arborcultural engineer’s report, and determined at one end of the scale the report had so many assumptions and errors, and at the other end deliberately mis-leading and professionally incompetent.
• A boundary surveyor who got one measurement wrong, that then required a second boundary surveyor
• The second surveyor who decided he couldn’t define a boundary, and gave his opinion on every other area of expertise other than one he was supposes to be reporting to the courts on.
• An arbortultural experts report trying to back up the initial flawed report, which was done as a desk report and only when we asked questions of the expert did the expert visit site.

So be careful before you take up a dispute, as like us you think you can control it, but once it’s in the court system you are totally in the hands of other people and it is certainly not user friendly and accessible, and you can’t jump in and out of it as you like.

Is this a precedent that has been set, there are no shared hedges?
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Re: Removal of Beech Hedging

Postby MacadamB53 » Sun Dec 21, 2014 11:50 am

Hi Adviceseeker,

Is this a precedent that has been set, there are no shared hedges?

was the judge as black and white as that?

Kind regards, Mac
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Re: Removal of Beech Hedging

Postby Roblewis » Sun Dec 21, 2014 12:16 pm

It is very unusual for a District Court Judgement to become case law for a very simple reason that they are rarely reported - If this had gone to the High Court then yes it was a potential precedent as these are widely reported. Remember also the judges at Leeds are more experienced in these complex cases - although it should not have been so complex. :( :( :(
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Re: Removal of Beech Hedging

Postby arborlad » Sun Dec 21, 2014 1:20 pm

Adviceseeker wrote:Is this a precedent that has been set, there are no shared hedges?



Absolutely not, and a visit to Hampstead Garden Suburb would confirm that fact, all boundary hedges (except those abutting a highway) are shared, there are covenants to protect them and any that die, there is an approved list to re-plant from.


Adviceseeker wrote:As the neighbours claimed it was their hedge, we basically offered them the hedge to settle the dispute on the basis that they maintain all of the hedge in the future, including our side, and draw documentation up with the deeds etc., to state that,..............



I would be very surprised if something like this could be implemented and imposed on the current owners and enforced on future owners, have a read of this thread to see mine and others thoughts on a similar situation: viewtopic.php?f=7&t=19765
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Re: Removal of Beech Hedging

Postby mr sheen » Sun Dec 21, 2014 2:51 pm

OMG!!! Can not for the life of me understand why you pursued this in the first place!
Insurers had experts indicating there was subsidence on your neighbours property, experts indicating trees/hedge contributed to said subsidence...etc ...most people would have been supportive of neighbours if they were suffering subsidence...it was just an 8-10ft of hedge!
And for your side.....you had say so of previous owners that they thought it was a 'shared' hedge....no expert reports etc and you had to have the opposing side suggest you needed a surveyors report...should have been first action.

Unbelievable....yes this needs to be a warning to all! Be neighbourly and keep things in perspective...
And a warning it should also be to contributors here....all the info is unknown. Beware offering any advice that encourages people to take legal action as oppose to keeping a perspective on such issues.
The first posting indicated that this should never have gone any further and some posters indicated that.

Keeping their hedge trimmed on neighbours side is unlikely to be enforceable.

Thanks for sharing outcome.....a useful lesson for all.
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Re: Removal of Beech Hedging

Postby ukmicky » Sun Dec 21, 2014 7:11 pm

Is this a precedent that has been set, there are no shared hedges?


No

Keeping their hedge trimmed on neighbours side is unlikely to be enforceable.


Would also be dangerous as it would imply an easement benefiting the hedge owner.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Removal of Beech Hedging

Postby Adviceseeker » Mon Dec 22, 2014 10:21 am

Hi,

Thanks for all your comments,

I'll try and answer as best I can.

Mac - The first boundary surveyor, stated the hedge was shared, the judge contemplated this and came out with the comment " I can't think of any situation were a hedge can ever be shared", as I stated previously the only reason I can think for this is that the trunks etc are scattered around the boundary / form 2 separate rows along the boundary, and therefore belong to the individual properties.

Rob Lewis - I agree it should not have been so complicated, but the insurance company effectively protracted it and dragged it out never wanting to come to the table, the reason being is the neighbour's didn't want this outcome having responsibility of the hedge, but the insurance company wanted the hedge to justify being able to remove it without first speaking to us.

Arbolad - Please check the deeds of the properties, if it's a negative covenant i.e. you cannot do something, you are fine, if it's a positive one, then you're in the hands of the owners, if they want to remove the hedge they can and there's nothing you can do about it, as a positive covenant can only be enforced between the builder (1st owner) and the second owner, after that it's open season. See comment above re shared hedge & judges opinion, and check on the deeds if it states the hedges are shared.


Mr Sheen - The only time we knew about the neighbour's problems were on the morning when the chainsaw gang turned up, if we'd have been out that day we would have comeback and it would have been removed without any communication with us, they'd known about their problems for 10 months and not shared it with any neighbours despite there being a comment in the arborcultural report that neighbour's should ascertain their own third party assessment as to whether they also have subsidence. It's hard to be supportive of neighbour's who act unilaterally and can't communicate.

As regards the arborcultuist's report one of the boreholes, was done within 6" (30cm) of the beech hedge some 1.2m away from the neighbour's wall, no wonder they found one beech root.

I'm not offering advice on whether or not to take legal action just forewarning people of our experience and some of the information we have uncovered, and which would have been helpful if we'd have known some of this.
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Re: Removal of Beech Hedging

Postby arborlad » Mon Dec 22, 2014 12:21 pm

Adviceseeker wrote: The third point followed on from the second in the opinion of the judge as if a hedge cannot be shared then it has to belong to one of the 2 properties, and as the neighbour’s property was built / registered first, the judge inferred it belonged to the neighbours.



When was the neighbours house built?

When was yours built?

What was your land used for before being built on?

When was the hedge planted?
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Re: Removal of Beech Hedging

Postby Adviceseeker » Tue Dec 23, 2014 10:15 am

Our house was built after the neighbour's house around 1961, the houses were built on open field on the edge of the village and the hedge was not planted until both houses were built and the original owners had moved in.
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Re: Removal of Beech Hedging

Postby Adviceseeker » Wed Jul 20, 2016 10:40 am

Latest Update

The settlement was as follows

The 2 surveyors plotted the boundary on 6/1/15, (as per the boundary line on the plan, and both parties agreed to where the boundary had been plotted.

Our Boundary Surveyor (BS1) confirmed the following when we had asked.

1. That it looked like the hedge was on our side of the boundary.
2. They had come onto our property and removed our hedge.
3. That a report would be made to the court to confirm the plotting of the boundary,
4. He also stated that we could extend the boundary the full length by just extending the line of the plotted boundary

• When asked for a copy of the report at a later date, BS1 confirmed that no report had been submitted as it was only necessary if either party disagreed.
• We asked BS1 in emails to confirm various matters so we could log a plan with the Land Registry, incorporate the information in our deeds. (see email)
• He replied with the following.

1. The boundary had been plotted and both parties had agreed to where it had been plotted.
2. Even though some of the hedge was located on our side of the boundary, the hedge belonged to the Defendants because Judge E had stated that.

• We asked BS1 & BS2 to report back to the court, clarifying the ownership of the hedge on our side of the boundary, both ignored our request.
• We asked our MP, to contact Churchill, to ask what they were going to do to correct this er-roneous act.
• Letters received from Plexus in August & September, stating the boundary had not been plotted in accordance with the Tomlin Order as the plan showed the hedge within the neighbour’s boundary.

• Application to the Courts by us to unstay the Tomlin Order.
• Application to the courts by the boundary surveyors at the request of the Defendants, for the clarification of where the boundary line should be plotted.

• The following are notes on the Judge G’s observations at the hearing on 13/11/15, (in no particular order)
1. We stated that we wanted to get the Tomlin unstayed because of the costs, (as well as the arguments re the ownership of the hedge in our submissions), Judge G stated the Tomlin Order could not be unstayed as it had been entered into willingly by both parties, and we had signed and agreed to it.
2. Judge G queried, why the boundary surveyors were making an application as both parties had agreed on 6/1/15, so why are we here, are they (the boundary surveyors), not the experts?
3. The judge stated the boundary has been plotted and both parties had agreed where it was plotted, we agreed, the Defendants barrister said obviously not.
4. Judge E was not pleased with BS1 for stating that “Judge E had stated the hedge belonged to 47”, Judge G stated that Judge E had never stated that, and asked were BS1 got that information from, we also stated to the Judge we’ve also asked the same question.
5. Judge G stated BS1 statement was absolutely ludicrous that a hedge on one side of the boundary, could belong to the neighbour, and you already know that the deendant’s barrister, you may want the hedge to belong to the neighbours, but that will never be the case, anything on one side of the boundary belongs to that property, if that was not the case why would we need boundary surveyors, (at that point we observed the
defendant’s barrister turning ashen),
6. Judge G stated we could erect a sign on our side of the boundary, and “say anything we like about the neighbours”, he Defendant’s barrister stated, “within reason”, and the Judge replied “of course”.
7. Judge G stated that the Claimants had a case against the Surveyors, who were, “a joke”, and the Defendant’s barrister agreed.
8. We stated that we had mentioned to our barrister that it was the wrong plan at-tached with the Tomlin Order, and we had mentioned that to our barrister who had agreed with the Defendant’s barrister the plan was for reference purposes, the defendant’s barrister stated that was not the case.
9. Judge G queried why we had agreed to pay the Defendants costs.
10. Judge G stated we had been let down by our legal representatives.
11. Judge G stated we should contact our legal representatives, as the situation could all be resolved, and everything put back.

The outcome of the hearing was an order was issued plot the boundary line, as per the plan on the Tomlin Order.

Churchill applied and were successful in obtaining an injunction to allow the surveyors back onto our property, 19/7/16, to plot the boundary in the incorrect position enclosing the hedge within the neighbour’s property.

The judge allowed our application to remain stayed until December 2017, so we could have time to make an application to the courts with the correct plans and evidence to set aside the Tomlin Or-der, and get the boundary plotted in the correct position, and the hedge re-instated.

Our neighbour has moved out whilst structural & remedial work is being carried out on the property, and in the meantime, Churchill / Plexus Law have left their clients, who are getting the house ready to sell, unable to do so because of the application that is open until December 2017.

All this has been done to justify Churchill removing the hedge in the first place, thus avoiding the re-instatement of the hedge and paying us damages.
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Re: Removal of Beech Hedging

Postby mr sheen » Wed Jul 20, 2016 7:22 pm

Find a wall.....vigorously bang head against it...feel better?so your loss...a hedge....the neighbour a house...and you're still going at it like a dog with a bone.
Involving an MP!!! In a civil boundary case! Tying up more court time....
meethinks someone has too much time on their hands and not enough real worries in life.
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Re: Removal of Beech Hedging

Postby COGGY » Wed Jul 20, 2016 10:02 pm

Mr Sheen you do sometimes really make me laugh. :D
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Re: Removal of Beech Hedging

Postby Adviceseeker » Thu Jul 21, 2016 11:36 am

Hi Mr Sheen,

So your saying that's it's OK for any one or any company to do what they like, and you'd just sit back and accept it. Would you allow anyone to come onto your property and move the boundary to suit the neighbour and take whatever land etc, and do nothing about it. We would rather none of this had taken place, but it has and we've got to deal with it.

We've a quote to re-instate our hedge from the front to the back of our property at a cost of £22,000, a hedge that was removed whilst we were away from our property one day, taking away our security & privacy.

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