Developer has cut my hedge - what are my rights?

Re: Developer has cut my hedge - what are my rights?

Postby Sudynim » Thu Sep 01, 2011 8:40 pm

despair wrote:I suggest you re read the OPs original posting

and stop accusing me of shouting

1)the OP has a boundary fence which has not been removed

2) The developers have both reduced the height of the hedge plus cut it back well beyond the boundary

This is criminal Damage ........the problem is getting the Police to act


Only if several other elements can be proven, beyond reasonable doubt. Which is very unlikely in the circumstances described.

Please stop SHOUTING this recklessly misleading advice.
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Re: Developer has cut my hedge - what are my rights?

Postby despair » Thu Sep 01, 2011 8:46 pm

What other elements ?????????????

The hedge has been cut back to the trunk which is 1 to 3inches back from the OPs own fence which remains in situ

to cut the hedge back they must have leant over the OPs fence
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Re: Developer has cut my hedge - what are my rights?

Postby arborlad » Fri Sep 02, 2011 8:31 pm

despair wrote:to cut the hedge back they must have leant over the OPs fence


There is no must about it, the weight of the branch before cutting may have carried it over the fence, when cut, it will have returned.

When the hedge was being cut, the intention was to replace the fence in front of it, creating a bit of 'elbow room' is not malicious.
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Re: Developer has cut my hedge - what are my rights?

Postby Sudynim » Sat Sep 03, 2011 12:10 am

despair wrote:What other elements ?????????????
The hedge has been cut back to the trunk which is 1 to 3inches back from the OPs own fence which remains in situ
to cut the hedge back they must have leant over the OPs fence

To make out a conviction for Criminal Damage it must be proven beyond reasonable doubt that actual damage was caused (when we are discussing an inch or two of nondescript hedging, that's far from simple - you have surely heard the phrase de minimis non curat lex). They may say that they only cut to the boundary line but the branches lifted due to the weight of foliage being removed, as A-Lad points out above. Or they cut on a wet day, or early in the morning. It must also be proven that any damage was caused intentionally or recklessly, and without lawful excuse.

In respect of lawful excuse, the contractors may raise a number of defences which would need to be refuted beyond reasonable doubt. They may say that they believed that the trimming was being done on proper authority. They may say that they believed the owner of the hedge had consented, or would have consented to the trimming if he had been present. They may say that they believed it was necessary to cut back to that line in order to protect the property rights of their employer. The important point in all of these is that the question is only their belief at the time. http://www.legislation.gov.uk/ukpga/1971/48/section/5

In practical terms, this is an infeasible mountain to climb when the damage relates to allegedly over-zealous trimming of a hedge so that a fence could be erected. What possible motive would a workman have to act dishonestly or maliciously in that situation? The foreman said "cut the hedge back and put the fence up", so they carried out his directions in good faith.
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Re: Developer has cut my hedge - what are my rights?

Postby ukmicky » Fri Sep 09, 2011 12:37 am

The important point in all of these is that the question is only their belief at the time. http://www.legislation.gov.uk/ukpga/1971/48/section/5


Hmmm

Hi Sudynim

Sorry mate , i really didn't want to do this but the above is not correct .

For a start their belief must be reasonably held , the defendants are also the ones who have to prove their belief was resonably held. However even if they can prove their belief was resonably held, reasonable belief is not all that matters no matter how honestly it is held.
Under the law you can honesly believe something to the point that you will risk your life for it and still be convicted of criminal damage. In other words don't pull down that fence simply because you resonably and honestly believe it is on your land because you can still be convicted of criminal damage if it turns out its on your neighbours.

You cannot determine what the law is by reading the act,the act is a very simplified version which does not tell the whole story and often can mean something different to how its read. which is why you or i would pay a solicitor and barrister to defend us with anything that really matters.

The words of the 1971 criminal damage act only gives a very general and somewhat basic rundown of the law and does not mention what the courts have determined the words to mean and in what situations any part that is written can be applied as a successful defence.

Since 1971 many cases have been before the courts and some of them cases have added elements which are not written in the 71 act, some have looked at the wording and decided how the wording should be interperated and some have decided what is actually required before a defence like say lawful excuse as an example can actually be used.
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Re: Developer has cut my hedge - what are my rights?

Postby Sudynim » Fri Sep 09, 2011 7:04 pm

ukmicky wrote:
The important point in all of these is that the question is only their belief at the time. http://www.legislation.gov.uk/ukpga/1971/48/section/5


Hmmm

Hi Sudynim

Sorry mate , i really didn't want to do this but the above is not correct .

For a start their belief must be reasonably held , the defendants are also the ones who have to prove their belief was resonably held. However even if they can prove their belief was resonably held, reasonable belief is not all that matters no matter how honestly it is held.
Under the law you can honesly believe something to the point that you will risk your life for it and still be convicted of criminal damage. In other words don't pull down that fence simply because you resonably and honestly believe it is on your land because you can still be convicted of criminal damage if it turns out its on your neighbours.

You cannot determine what the law is by reading the act,the act is a very simplified version which does not tell the whole story and often can mean something different to how its read. which is why you or i would pay a solicitor and barrister to defend us with anything that really matters.

The words of the 1971 criminal damage act only gives a very general and somewhat basic rundown of the law and does not mention what the courts have determined the words to mean and in what situations any part that is written can be applied as a successful defence.

Since 1971 many cases have been before the courts and some of them cases have added elements which are not written in the 71 act, some have looked at the wording and decided how the wording should be interperated and some have decided what is actually required before a defence like say lawful excuse as an example can actually be used.


If you can cite some of these amendments and extensions of the law then I would be interested to read them. Otherwise we'll have to write this one off as a difference of opinion because I am not aware of any change and I stand by my comments above. It is true that a magistrate may take a robustly sceptical approach towards dubious claims by a defendant, but the statutory defences in law have not been abolished. Chamberlain v Lindon (www.bailii.org/ew/cases/EWHC/Admin/1998/329.html) is the oft-quoted example.

Please don't read this as an abrupt rejection, I would be genuinely interested in any links or citations you can provide. Best wishes
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Re: Developer has cut my hedge - what are my rights?

Postby ukmicky » Sat Sep 10, 2011 1:01 am

Don't like writing long things like this in case i make a mistake and leave a word or two out that changes what i mean to something i don't

There are defenses that work in the right circumstances but it’s not a one way street where someone can get away with an action simple by muttering a few words. I also didn't say that the statutory defenses have been abolished and you do not need amendments to a law for the law to change from what was originally written.

Civil courts from time to time change how civil law is enforced by setting precedents. Statute law has a system not dissimilar where precedents set by higher courts have to be followed by lower courts if the facts of a case are similar to those where the precedent was set.

When someone wishes to find out what the actual law is and how it is applied in real life they have got to research the subject to see how the law has evolved from the 1st day the statute became law, there is no difference in that respect to common law , except with statute law Parliament write the Acts before the courts determine how to interpret the words.

Due to the literal approach courts in the past used to interpret the law, in old cases they followed what was written almost to the letter as the judiciary was of the opinion that courts were not meant to make new law . Courts are still not meant to make new law however these day they follow a more purposive approach and look at the purpose of the law rather than the strict written word which now allows the law to develop through decisions which create precedents and therefore new law itself. In 1993 the house of Lord even ordered the courts to follow the new purposive approach

Lawful excuse can still be used as a defense however it is down to the defendant to prove lawful excuse existed at the time that he broke the law.
The case you sited speaks for itself and there was lawful excuse as a wall was built across a ROW, there was a legally held interest in the land and therefore a defense of lawful excuse was right and proper

I’m not going to site case after case as it would go on for to long and because research these days is easy to do and anyone who come on this site should be prepared to perform their own research.

Lawful excuse does not mean an action taken was not an illegal act it simply means that there was a lawful reason for the person to break the law.

Honest belief is an important factor when pleading lawful excuse under the criminal law act and it can be determined by a simple subjectivity test. If you read the criminal damage act the wording is such that to so show lawful excuse you only had to have honestly believed you had lawful excuse, it made no difference in the past if the belief was justified or right. Basically in the past it came down to the opinion of the person who committed the crime, what was in his mind at the time that he committed the crime, did he form that honest belief.

If you read old cases you see that they came to the same conclusion which was due to the literal approach that courts used to use when interpreting the written word of the act.
Now however courts due to cases like Regina v hill have added an objectivity test to the defense of lawful excuse. This new element which has come about due to a precedent and is not written anywhere other than the interpreted words of a judge in a court case could never have come about under the old literal approach of interpreting the law and it is now not enough that the defendant honestly believed he had the right to break the law, now the courts will look to see if the action was right under the circumstances and to perform the objectivity test they will look at the facts of the case and determine if the action was actually justified.

Also just a quick one for all those people who are told that it cannot be classed as criminal damage as that tree or hedge will grow back and return to its original state.

It was the case many years ago that that was the case. The law however has determined that there still is a case for criminal damage even when any damage is temporary.And the law is now such that any alteration to the physical nature of the property concerned can amount to damage under the criminal damage act whether that damage is permanent or temporary.

The problem is getting the police to take notice of the rulings in cases like.

Samuels’s vs. Stubbs which is a good one

"Damage is sufficiently wide in its meaning to embrace injury, mischief or harm done to property and in order to constitute damage it is unnecessary to establish such definite or actual damage as renders the property useless or prevents it from serving its normal function."

But there are others like
Cox v. Riley
Hardman vs. chief constable of Avon.
R v Fiak
Morphitis v Salmon [1990]
R v Whiteley
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Re: Developer has cut my hedge - what are my rights?

Postby Sudynim » Sun Sep 11, 2011 5:45 pm

ukmicky wrote:There are defenses that work in the right circumstances but it’s not a one way street where someone can get away with an action simple by muttering a few words.


Thanks Micky -

If it appeared I was suggesting this was an easy formula defence then I'm happy to clarify. As I stated above, sentencers can and do adopt a robustly sceptical approach towards such claims by a defendant.

That is what happened in R v Hill & Hall, where the judge rightly dismissed an absurd claim that damage to the fence of a US military base was immediately necessary to avert nuclear war (Hill admitted under cross-examination that she did not believe nuclear war was actually likely in the next few days, and she could not therefore rely upon the s5(2) defence).

Best wishes
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Re: Developer has cut my hedge - what are my rights?

Postby span » Fri Sep 16, 2011 11:38 am

Eveybody else on here is happy to have every chat FOC.

:D
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Re: Developer has cut my hedge - what are my rights?

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