Returning/not returning trimmings to neighbour

Re: Returning/not returning trimmings to neighbour

Postby Conveyancer » Tue Sep 03, 2013 10:06 am

Alan Harris wrote:The facts of our case are not really relevant to how the neighbour should look after her tree but I still neeed to find an example of a court case which is similar to our situation.


I might find one in a decent law library, though I have a feeling I would not. I certainly have not been able to find one by Googling. The best that can be done is as I have done and that is to argue the point from the law of trespass as it applies generally.

Alan Harris wrote:The apples should not be our problem!


The law says that it is because apples falling off trees is what apples do. When it comes to gardens the law more or less says that nature must be allowed to take its course.
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Re: Returning/not returning trimmings to neighbour

Postby gander » Tue Sep 24, 2013 1:09 pm

Neighbours can cut over hanging branches what the must not do is dump them back on your land but offer them to you! if you do not want them they should get rid of them!! dumping them can be classed as flytipping and the neighbour can be prosecuted.
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Re: Returning/not returning trimmings to neighbour

Postby gander » Tue Sep 24, 2013 1:12 pm

Originally it was the fruit that should be passed back as it would be stealing if you kept it! somehow it has turned into branches as well!
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Re: Returning/not returning trimmings to neighbour

Postby Alan Harris » Tue Sep 24, 2013 1:51 pm

Dear Gander

Thank you for that. Very interesting but still no-one has referred to a court case which supports any opinion which has been offered. You have indicated that the principle which applied to fruit has extended to include branches and the rules which apply to offering the materials back to the neighbour. How this is good law remains a total mystery! Please can you or someone find a case with similar facts. If none is available then ownership must remain with the tree owner and their branches and fruit are a nuisance to the neighbour. If it were toys or balls etc coming into the garden and the receiving property owner would normally return them. What is different in the case of fruit and branches. It would be brave of a tree owner to take an action in trespass without a legal precedent to rely on.

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Alan Harris
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Re: Returning/not returning trimmings to neighbour

Postby gander » Tue Sep 24, 2013 2:18 pm

I think a ball or toy isn't like maybe lots and lots of tree trimmings!if you have a hedge which is shared you would not expect each owner to dump rubbish on each others garden!!! a tree is a tree it will grow and you cannot expect the tree owner to have to remove the branches at the wims and fancies of the neighbour, that sounds mean I know but if they want to cut the over hanging branches to their hearts delight thats up to them,.but why should the tree owner have to jump all the time!!at the end of the day anyone can represent themselves in court, the only cost would be serving the notice on your neighbour! you can have what they call a mackenzie friend who will help but cannot speak for you!!!
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Re: Returning/not returning trimmings to neighbour

Postby ukmicky » Tue Sep 24, 2013 9:36 pm

Alan Harris wrote:My own view is that the owners of trees with overhanging branches have a responsibility for nuisance caused by their trees (messy apples over ones lawn) and should not even leave it to the neighbour to remove the overhang. Strictly under the trespass tort the tree branches are no less tresspass to air than an overhanging crane!


Overhanging branches LEGALLY do not cause a trespass a crane can
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Re: Returning/not returning trimmings to neighbour

Postby Alan Harris » Wed Sep 25, 2013 3:22 pm

Dear ukmicky

You assert that branches do not constitute a legal tresspass and differ from the case of a crane or any other overhang. How do you arrive at this conclusion. Please refer me to any case where the judgement supports your conjecture.

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Re: Returning/not returning trimmings to neighbour

Postby arborlad » Wed Sep 25, 2013 8:10 pm

On the basis of 'everything which is not forbidden is allowed', I don't think you're going to progress this any further.
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Re: Returning/not returning trimmings to neighbour

Postby ukmicky » Wed Sep 25, 2013 9:29 pm

Alan Harris wrote:Dear ukmicky

You assert that branches do not constitute a legal tresspass and differ from the case of a crane or any other overhang. How do you arrive at this conclusion. Please refer me to any case where the judgement supports your conjecture.

best regards



Alan Harris





Lemmon -v- Webb; CA 1894
.

Lindley LJ said: “But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case.”

Kay LJ: “The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so
.”


Im sure you know of this case, maybe you havent just read through it. It is a case which is still good law and is often used and refered to in cases today

If it were a trespass you could force your neighbour to cut back overhanging branches ,which you cant as its a non actionable nuisance. Things that grow naturally are treated differently to something that is unnaturally placed on or over someones land.
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Re: Returning/not returning trimmings to neighbour

Postby Alan Harris » Thu Sep 26, 2013 10:31 am

Dear ukmicky

Thank you for that.

The judgement from Lindley LJ in Lemmon v Webb affirms that encroachment of branches is not a trespass, but that it is a nuisance which the affected neighbour is entitled to abate if the tree owner fails to adequately prune/maintain the tree. He confirmed that as any action would be in nuisance, the damages would be based on actual damage caused by the nuisance. Which in the case of falling branches could cause injury and in the case of roots the damage could be, for instance, subsidence. Kay LJ in the same judgement affirmed that ownership of the branches remains with the tree owner and, by extrapolation, the fruits also are owned by the tree owner. The Lemmon v Webb case does not deal with the question of whether the neighbour has to offer the return of branches or whether they can be simply returned. The practice of having to offer the return of branches seems to have been added to the interpretation subsequently by someone else (another case or simply polite interpretation of neighbourliness) unless you know differently.

Kay LJ also stated that the removal on branches by the affected neighbour should follow notice to the tree owner to maintain their tree and removal should follow the neighbour's failure to do so. This also implies that in 1894 the judge considered that there was a duty for the tree owner to maintain their tree so as to abate the nuisance caused by it. It may be that in 2013 in the more crowded urban environment with ever less pace for individual's gardens (we have nearly doubled our population since 1900) there may be a greater duty for property owners to keep the contents of their gardens under proper management in order to avoid impinging on neighbours and creating a nuisance.

In so far as apples are concerned I would say that return of the fruit owned by the tree owner cannot be tresspass, but, it could perhaps be a nuisance. If action was to be taken against the apple returner then it is unclear as to what damages could be claimed by the tree owner. Indeed as long as the returner of apples avoids throwing the apples at the tree owner causing injury then I cannot envisage any basis for claiming damages at all.

best regards


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Re: Returning/not returning trimmings to neighbour

Postby Conveyancer » Sun Sep 29, 2013 1:55 pm

I think we are getting a bit sidetracked here. The question is not whether overhanging branches are a trespass or a nuisance nor precisely what action the affected landowner can take, but rather, once having taken action, what he can and must do in respect of the arisings.

What he must do is to offer the arisings. I am not sure it is the case that the principle first arose in respect of fruit and then extended to branches, but rather that the case (whose name I cannot recall and cannot for the moment seem to find) just happened to be about branches with fruit on them. In any event, it is the case that arisings must be offered. I think though that a common sense approach can be taken. If carrying out routine tasks such as trimming a hedge I cannot see there is any need to offer the clippings. If the neighbour has indicated he wants them for a mulch or for his compost heap that may be different. When it comes to branches it is a case of assessing whether the arisings have any economic value. The safest way to proceed in all cases is to ask the neighbour.

What he can do if the neighbour has declined to accept the arisings is to dispose of them. What he cannot do without the neighbour's consent, however carefully he does it, is to leave or throw the arisings on the neighbour's land. If the neighbour has declined to accept the arisings consent must necessarily be absent. I do not think consent can be assumed if you do not ask, not least because you must ask, but also because it is not reasonable to assume that the neighbour wants the arisings. A ball finding its way into your garden is quite different. In that case it is entirely reasonable to assume it is wanted and that it can be returned without seeking permission.

It is no good keep asking for cases because there simply do not seem to be any. In the absence of any ruling to clarify the issue the best that can be done is to consider law of trespass. I have set out my views above and have nothing to add to them except to suggest that a court is likely to take a dim view of anyone who thinks it is acceptable to scatter hedge clippings over or heave large branches onto his neighbour's garden.
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Re: Returning/not returning trimmings to neighbour

Postby Alan Harris » Mon Sep 30, 2013 10:24 am

Dear Conveyancer

Your comments are on the face of it perfectly reasonable but the point I make is that in a world of decreasing available land space there is a need to consider more carefully the trouble which one neighbour can cause another by cultivating but not properly maintaining trees in their gardens. Councils are obliged under the Highways Act 1980 (section 96) to not to allow highway trees which are a nuicance to continue to grow and if you own a hedge and fail to trim it causing a nuisance on the footway the council is not slow in requiring that you trim it. For more elderly and less able house owners to have to clean up the neighbours arisings becomes increasingly onerous as the years pass. In the absence of legal precedent in this matter of return of fruit I believe that there is good reason to construe that in the future the courts may see that there is a duty on the ordinary tree owner to properly maintain their own trees so as to abate any nuisance, including keeping the canopy size within their own ownership. Severe pruning of street trees is regularly undertaken by Highway Authorities so why should tree owners not expect to have to prune their own trees as necessary to prevent nuisance. I would certainly keep my own planting within the land which I own so that I do not intend toput out my neighbours to trouble.

The high hedges legislation already recognises the impinging effect of overshadowing caused by dense evergreen hedges and I see no reason for the law not moving towards a situation where the adverse effects of trees are entirely the liability of the tree owner. Clearly trees which have environmental or landscaping importance in a preservation area the personal interests of land owners will remain subservient to the public good, but trees in gardens planted for the benefit or pleasure of individual owners are a completely different case and should be the liability of the owner. Large and long lived trees can be planted specifically where the do not have adverse effects such as parks and common spaces or large gardens or else the planted trees can be predicably of limited size or age so that they are a welcome addition to the local scene rather than a feared and troublesome addition to a crowded environment.

Other issues come to mind such as sub surface spreading of brambles, Japanesse knotweed and foreseeable damaging root encroachment. I consider that an owner should be liable when they do not reasonably control the plants in their own land so as to avoid damage to a neighbour. A century ago when many of the cases defining liability arose there was much less specialist information available and less concern as to the potential adverse effects of plant growth. Indeed the current knowledge and concern over tree root effects was only first seriously investigated in the 1940's and only reached a significand pace in the late 1970's after the effect of the summer of 1976 was seen to cost insurers £300million in one year as a consequence of the "subsidence and/or heave clause" in the buildings policy which was only introduced in 1972. We can now more easily predict the nuisance effects of plants such that gardens can be planned/designed to avoid one neighbour adversely affecting another.

Law is not a fixed set of rules which remains unchanged in perpetuity. New precedents and legislation emerge to enable the population have regard to the public good as the needs of society evolve. Time for some more changes :!:

best regards


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Re: Returning/not returning trimmings to neighbour

Postby Morgan Sweet » Mon Nov 16, 2015 10:32 pm

I recently posted this under the Hedges section but perhaps it may help regarding nuisance tress as well.

I recently came across this research briefing from the House of Commons regarding Nuisance Hedges that may be helpful.

http://researchbriefings.files.parliame ... N02999.pdf

I notice there is no mention that I can find about having to offer the hedge/branch trimmings back to the tree owner.
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Re: Returning/not returning trimmings to neighbour

Postby TO » Tue Nov 17, 2015 5:13 pm

You still haven't explained what your point is. I would suggest you start at the start of this thread and see what a tangled can of worms the issue of returning/not returning is. The basis/starting point for returning the stuff you cut off back to the tree owner is, it is their stuff.
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Re: Returning/not returning trimmings to neighbour

Postby Morgan Sweet » Tue Nov 17, 2015 7:58 pm

TO wrote:You still haven't explained what your point is. I would suggest you start at the start of this thread and see what a tangled can of worms the issue of returning/not returning is. The basis/starting point for returning the stuff you cut off back to the tree owner is, it is their stuff.


My point is, clearly there is nothing in law that says that you have to offer cuttings back. If you can find something legal to the contrary I would appreciate seeing it to correct my understanding. Anything growing over one's property that needs cutting is causing a nuisance and therefore can legally be cut. I've been cutting hedges and trees for over 47 years and never offered anything back, unless someone asked for the logs etc.. I have never been asked for hedge/tree trimmings, they are worthless If someone was to ask me for the trimmings then I of course would give the cuttings to them. I've worked as a contractor for several highways authorities, electricity boards and BT and have never been told in any contract to give tree/hedge cuttings back. Do you honestly think when a telephone linesman goes out to trim some overhanging trees rubbing telephone plant wires they seek out the owners and offer the cuttings back? Furthermore when the highways have cut my overhanging hedges and trees they certainly have not offered me the cuttings back. I have never read any contract or seen anything official (other than a point of view from council web sites) to say that you should offer cuttings back, if the owner of the hedge/tree thinks the cuttings have value then let the hedge owner sue for them. As (commercially) most hedges are flail cut now how could you offer the trimmings back? It is just a ridiculous urban myth that has no practical application in law.

No doubt people will disagree with my experience and views; all I can say is please then contradict me with the legal evidence that you have. If so, although long retired myself I will inform my sons (who cut hedges as agricultural contractors for local councils and private individuals) that they should gather up all the pieces and seek the owners to give them back the cuttings; it just does not happen. Should we also be sweeping up the leaves from our lawns that came from neighbours trees and offering them back?
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