Hedge Cutting, who is responsible?

Postby Conveyancer » Mon Apr 24, 2006 3:19 pm

aixlad wrote: I think my question to the Council should be something like this; "......as you've issued me with a requirement to maintain my trees on my neighbours side of their boundary, does your Remedial Action Notice implicitly agree permission to enter my neighbour's land in order to satisfy the requirements of the Notice?"


I think that is exactly the question you need to ask, although I would say "confer" rather than "agree".

I am not aware of any rule of law that allows anyone to trespass onto his neighbour's land to maintain vegetation, harvest crops or even to recover goods that belong to him.
Last edited by Conveyancer on Mon Apr 24, 2006 11:09 pm, edited 1 time in total.
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Postby aixlad » Mon Apr 24, 2006 11:04 pm

Thanks for that Conveyancer. :lol: I agree with your opinion regarding trespass.
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Postby TO » Tue Apr 25, 2006 5:04 pm

Hi

I think we all agree that overhanging branches fruit etc are the property of the tree owner.

This still applies where "it has fallen from being ripe, or been blown off in the wind, or severed by an act of man" Mills v Brooker [1919] 1 K.B. 555, per Lush J at p.558

If fruit falls onto adjoining land the owner is entitled to enter onto that land to recover it. Mitten v Faudrye (1625) Poph. 161 and Patrick v Colerick (1838) 3 M. & W. 483 at p.485

If anyone finds on their land fruit or branches that are from their neighbours tree there is no obligation to keep it safe. however, if the finder removes destroys, I assume mowing over it would come under this description, sells, eats or gives it away that amounts to conversion. This can be subject to a civil action. It is also theft which is a criminal offence.

The Access to neighbouring Land Act 1992 may be relevant.
You would have to apply to the County court for an order to enter the land.
The County Court would make an order if it was satisfied that;

The work was necessary. (You'll be committing a criminal offence if you don't comply with the remedial notice)

The work cannot be carried out, or would be substantially more difficult to carry out, without access to the neighbouring land. (So you tell us)

And the owner of the neighbouring land would not suffer a dispoportionate degree of hardship or inconvienience. (I doubt the loss of privacy which will have been addressed at the complaint stage and informed to a degree the decision will count as disproportionate hardship or incinvienience)

So there you have it. Relevant case law included.

Apples and a right of access to get them, and a way by which to enter onto your neighbours land to abate the nuisance that is your hedge without committing tresspass.
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Postby aixlad » Tue Apr 25, 2006 11:06 pm

Some very good points there from TO, thanks for the clarification and obvious effort you've taken to bring these points to my attention. I've looked at the Access to Neighbouring Land Act 1992, and note that -

(4) Where the court is satisfied on an application under this section that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of this Act to be reasonably necessary for the preservation of the land; and in this subsection "basic preservation works" means any of the following, that is to say—

(a) the maintenance, repair or renewal of any part of a building or other structure comprised in, or situate on, the dominant land;

(b) the clearance, repair or renewal of any drain, sewer, pipe or cable so comprised or situate;

(c) the treatment, cutting back, felling, removal or replacement of any hedge, tree, shrub or other growing thing which is so comprised and which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead;

(d) the filling in, or clearance, of any ditch so comprised;


The conditions appear to refer to building maintenance, underground infrastructure, and damaged, diseased, dangerous, insecurely rooted or dead trees and hedges. My trees, technically, are none of these; they all appear to be related to some aspect of safety. Would it still apply? I'm not saying for a moment that I need to pursue the desired access through the courts but this is something that must be considered as the neighbouring property may change hands several times over the next few years. Beyond this, access could be made more difficult if the neighbour decided to situate a shed or small building against the boundary. So the access issue I feel still remains a problem for further consideration as the neighbour is not obliged to ensure the area on his land remains accessible for the purpose of satisfying the requirements of the Remedial Action Notice. :shock:
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Postby Beech » Wed Apr 26, 2006 8:55 am

I think the point here is that you have been ordered by your council to follow a course of action. You can only carry out that course of action by accessing your neighbour's property. Your neighbour would appear to have refused you access, even though they are aware you have been ordered to reduce the height of the hedge.

Under these circumstances I cannot imagine any court would refuse to grant you access to your neighbour's property to reduce the height of the hedge. (Reducing the width of the hedge is likely to kill off that side of the hedge.) If you tell your neighbour you will go through the courts to gain access, using the Access to Neighbouring Land Act, and then seek costs, they may capitulate.

It is not up to the council to rule over civil access, they see you as the owner of the 'offending' hedge because you own the roots.

I expect the notice from the council also mentioned that you should not carry out the work at a time when it may disturb nesting birds.
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Postby TO » Wed Apr 26, 2006 7:06 pm

Hi

I think we've tried to be to clever here and missed the poin. By that I mean why are we not looking at Part 8 of the Antisocial behaviour act 2003 when this is the relevant bit of law.

Part 8 of the Antisocial behaviour act 2003 Section 76 Power to require occupier to permit action to be taken by owner

Section 289 of the Public Health Act 1936 (c. 49) (power of court to require occupier to permit work to be done by owner) shall apply with any necessary modifications for the purpose of giving an owner of land to which a remedial notice relates the right, as against all other persons interested in the land, to comply with the notice.

Now does this settle it?
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Postby Conveyancer » Wed Apr 26, 2006 9:54 pm

TO wrote:Now does this settle it?


Afraid not!

This refers to the situation where the owner needs to get on his own land occupied by another to comply with a remedial notice. It will be noted that in any event a court order is required if the occupier refuses access.

I think it follows from this that if an owner needs a court order to get on his own land (when it is occupied by another who does not consent) then he surely has no right to go on the land of a neighbour.

Now does this settle it!
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Postby Batty » Fri Apr 28, 2006 2:42 am

Why not just take the whole hedge out and put a 2m fence up?

Problem solved and less maintenance in the future.
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Re: Hedge Cutting, who is responsible?

Postby aixlad » Tue Mar 01, 2011 1:03 am

For anyone who is still following this topic!

The Council issued 5 remedial notices over a 3 year period, most of these were found to be defective and subsequently withdrawn a few months later only to be replaced by another one equally defective. Eventually the Council took me to court, I engaged a solicitor, they then withdrew their charges and reimbursed my £4000 legal fees, and also paid their own fees which amounted to another £4000. So, all these years later, the hedge still stands, and an irresponsible Council has squandered £8000 in legal costs, plus the costs of their own internal administration which theoretically could be another £5000. During the course of this process I wrote 50+ letters to the Council including several to their Chief Executive who did respond but failed to address the issues, if he had of done, the Council would have saved at least £8000. My advice is to put everything in writing, no emails, no meetings, and no telephone conversations, log absolutely everything you do in a diary, log how long it takes the Council to respond to your correspondence (a proper response, not just the acknowledgement postcard!), always raise a complaint with the Council if you are not satisfied, and don't ever give up or show any signs of weakness. As a typical working person, I'm definitely not in a position to sustain costs such as these however, continually and consistently chipping away at the authority when I disagreed with their assessment eventually paid off. Good Luck to anyone else faced with something similar.
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Re: Hedge Cutting, who is responsible?

Postby Sudynim » Tue Mar 01, 2011 10:57 am

aixlad wrote:The Council issued 5 remedial notices over a 3 year period, most of these were found to be defective and subsequently withdrawn a few months later only to be replaced by another one equally defective..... So, all these years later, the hedge still stands, and an irresponsible Council has squandered £8000 in legal costs, plus the costs of their own internal administration which theoretically could be another £5000.


Good grief, that's utterly indefensible (for the interests of all parties). Someone at the council should be disciplined for incompetence of this magnitude
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Re: Hedge Cutting, who is responsible?

Postby mr sheen » Tue Mar 01, 2011 1:39 pm

What an appalling story!
Leylandii planters are now forcing our Councils to squander our hard-earned taxes on these scurges of neighbourhoods. Outrageous!
Hope you feel happy with your self aixlad, the root cause of this was of course you, who planted this hedge inappropriately in the first place.
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Re: Hedge Cutting, who is responsible?

Postby Sudynim » Tue Mar 01, 2011 8:10 pm

mr sheen wrote:What an appalling story!
Leylandii planters are now forcing our Councils to squander our hard-earned taxes on these scurges of neighbourhoods. Outrageous!
Hope you feel happy with your self aixlad, the root cause of this was of course you, who planted this hedge inappropriately in the first place.


I don't think it's fair to say that, Mr S - unless you are a close neighbour and directly familiar with the situation? Like any property owner, aixlad is entitled to enjoy his land as he wishes, subject to any regulations or orders. The fault here lies squarely with the council's bungling officials.
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Re: Hedge Cutting, who is responsible?

Postby Keepitlegal » Wed Mar 02, 2011 12:50 pm

despair
your advice is

If he requests that you cut it and you refuse he could if he wished call in tree surgeons and sue you for the costs of cutting back to the boundary

Exactly what qualifications do you have regarding the law as the advice you have given is exactly opposite to the advice you gave me!
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Re: Hedge Cutting, who is responsible?

Postby Sudynim » Wed Mar 02, 2011 1:29 pm

Keepitlegal wrote:despair
your advice is

If he requests that you cut it and you refuse he could if he wished call in tree surgeons and sue you for the costs of cutting back to the boundary

Exactly what qualifications do you have regarding the law as the advice you have given is exactly opposite to the advice you gave me!


That advice is correct, in it's narrowest sense, because anyone can call in any contractor they wish and then sue any other person to recover the costs. But it would be exceptionally unlikely that such a claim would be successful when dealing with removal of overhanging foliage between neighbouring gardens.
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Re: Hedge Cutting, who is responsible?

Postby despair » Wed Mar 02, 2011 5:32 pm

do not misquote me

You can only hope to reclaim the costs of cutting back overhanging vegetation IF ITS SEVERE

There have been successful cases in the SCC but only when the overhanf was severe
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