Neighbour's tree just destroyed our boundary wall....

Neighbour's tree just destroyed our boundary wall....

Postby Trailerman » Sat Feb 08, 2014 4:44 pm

Our neighbours' large silver birch tree has just pushed the boundary wall over into our garden. Luckily no pets or children were hurt!

Just wondered what recourse we have. We live in a conservation area. Neighbour has been informed multiple times that his tree was pushing the wall over, but refused to fell it for sentimental reasons. He begrudgingly offered to get an odd-job man to rebuild a few bricks so that wall accomodated the tree, but it was going to be a fudge, so we suggested it wasn't a proper resolution to the issue. We were due to submit an application to fell this week, but the elements have beaten us to the punch.

I'm more than happy to pay the cost of felling, but my understanding is that because we're in a conservation area, the council can slap a TPO on the tree which then means it can not be removed. Our hope was that we'd get the application to fell in before the wall came down, and the the potential cost of taking on responsibility for any damage the tree might do would deter the council from protecting it. Now, I'm not too sure what the situation is.

Any advice would be enourmously gratefully received. The tree is still merrily standing and leaning over our garden. The wall can no longer be rebuilt along the actual boundary because the tree has encroached across it and is gradually expanding onto our property. I have no idea what liability my neighbour has. It's all a little unclear, but I now need to try and find a resolution fairly urgently.

Many many thanks in advance.

Jules

PS. Tried to upload a photo, but I get a message saying: Sorry, the board attachment quota has been reached.
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Trailerman » Sat Feb 08, 2014 4:48 pm

Here's a photo. Plenty more available:

https://www.dropbox.com/s/ltxun9kdyi5v3 ... 9Small.jpg
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Re: Neighbour's tree just destroyed our boundary wall....

Postby FrTed » Sat Feb 08, 2014 6:37 pm

Is the wall yours, your neighbours or joint responsibility?

Looking at the photo - what sort of state of repair was the wall in prior to its collapse, and what was growing against it from your side?

Im just playing devils advocate here as if you try to claim against his house insurance company these are the things they will ask and probably point out.
"No Dougal, these cows are SMALL, those cows are FAR AWAY"
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Re: Neighbour's tree just destroyed our boundary wall....

Postby despair » Sat Feb 08, 2014 6:54 pm

If theres absolutely no doubt its the tree thats caused the wall to collapse and you have clearly informed the neighbour of your concerns in writing several times and kept copies then he will be liable for all damage that occured after the first letter

however as others have pointed out its not a cut and dried issue
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Re: Neighbour's tree just destroyed our boundary wall....

Postby MacadamB53 » Sat Feb 08, 2014 9:24 pm

despair wrote:If theres absolutely no doubt its the tree thats caused the wall to collapse and you have clearly informed the neighbour of your concerns in writing several times and kept copies then he will be liable for all damage that occured after the first letter

however as others have pointed out its not a cut and dried issue

It doesn't matter how many times the OP has written to the neighbour if there's no record of the damage to compliment each letter or any proof that the tree caused the damage at those times.

Not that any of this matters because if it is agreed the tree caused the wall to collapse then it must surely boil down to which came first. If the wall was built with the tree already there then the neighbour cannot be held responsible. I'm guessing the wall came first though, so the neighbour should pay up.

As for felling the tree - could the OP please elaborate as to why they consider this necessary.

All just my non-expert, unqualified opinion.

Kind regards, Mac
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Treeman » Sat Feb 08, 2014 10:02 pm

MacadamB53 wrote:
despair wrote:If theres absolutely no doubt its the tree thats caused the wall to collapse and you have clearly informed the neighbour of your concerns in writing several times and kept copies then he will be liable for all damage that occured after the first letter

however as others have pointed out its not a cut and dried issue

It doesn't matter how many times the OP has written to the neighbour if there's no record of the damage to compliment each letter or any proof that the tree caused the damage at those times.

Not that any of this matters because if it is agreed the tree caused the wall to collapse then it must surely boil down to which came first. If the wall was built with the tree already there then the neighbour cannot be held responsible. I'm guessing the wall came first though, so the neighbour should pay up.

As for felling the tree - could the OP please elaborate as to why they consider this necessary.

All just my non-expert, unqualified opinion.

Kind regards, Mac


Nope
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Re: Neighbour's tree just destroyed our boundary wall....

Postby MacadamB53 » Sat Feb 08, 2014 10:10 pm

Treeman wrote:
MacadamB53 wrote:
despair wrote:If theres absolutely no doubt its the tree thats caused the wall to collapse and you have clearly informed the neighbour of your concerns in writing several times and kept copies then he will be liable for all damage that occured after the first letter

however as others have pointed out its not a cut and dried issue

It doesn't matter how many times the OP has written to the neighbour if there's no record of the damage to compliment each letter or any proof that the tree caused the damage at those times.

Not that any of this matters because if it is agreed the tree caused the wall to collapse then it must surely boil down to which came first. If the wall was built with the tree already there then the neighbour cannot be held responsible. I'm guessing the wall came first though, so the neighbour should pay up.

As for felling the tree - could the OP please elaborate as to why they consider this necessary.

All just my non-expert, unqualified opinion.

Kind regards, Mac


Nope

Hi Treeman,

Please explain so I can gain a proper understanding.

Kind regards, Mac
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Treeman » Sat Feb 08, 2014 11:18 pm

The legal expression is "the tree takes its victim as it finds it". It makes no difference if the structure you are claiming subsidence on is a piece of jerry built rubbish or its the western end of the great wall of china its all the same and it makes no odds who was there first.
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Re: Neighbour's tree just destroyed our boundary wall....

Postby arborlad » Sat Feb 08, 2014 11:24 pm

MacadamB53 wrote: I'm guessing the wall came first though,



.............by a long way - probably same age as house.
arborlad

smile...it confuses people
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Re: Neighbour's tree just destroyed our boundary wall....

Postby MacadamB53 » Sat Feb 08, 2014 11:40 pm

Treeman wrote:The legal expression is "the tree takes its victim as it finds it". It makes no difference if the structure you are claiming subsidence on is a piece of jerry built rubbish or its the western end of the great wall of china its all the same and it makes no odds who was there first.

Hi Treeman,

You've lost me.

Can I plant a tree close to a structure and not later be held liable for the damage it causes?
Can I build a wall in close proximity to a tree and later hold the tree owner liable for damage to the wall?

Kind regards, Mac
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Treeman » Sun Feb 09, 2014 10:09 am

MacadamB53 wrote:Can I plant a tree close to a structure and not later be held liable for the damage it causes?

Yes for a while at least, once your have been presented with evidence that the tree is causing damage you are open to an action for any on going damage until you rectify the situation.

MacadamB53 wrote:Can I build a wall in close proximity to a tree and later hold the tree owner liable for damage to the wall?

Yes
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Re: Neighbour's tree just destroyed our boundary wall....

Postby MacadamB53 » Sun Feb 09, 2014 10:59 am

Hi Treeman,

Thanks for the explanation.

What if the evidence of damage is a collapsed wall?

How can I hold my neighbour liable if I built my wall near his tree? surely he shouldn't have to pay for something which was doomed from the start?

Kind regards, Mac
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Treeman » Sun Feb 09, 2014 11:16 am

Staying with this example

Each party is entitled to use their land as they see fit (within the bounds of law)

If I build a wall on my boundary that's a perfectly lawful and acceptable thing to do. If your skanky tree interferes with my lovely wall which is good and lawful you have to stop that or I have redress in law.

To coin a phrase...........Get ooooorf moi land............
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Trailerman » Sun Feb 09, 2014 12:10 pm

Hi

Many thanks for all the helpful responses.

Just to clarify a few aspects of this situation:

1. Yes, I have written to my neighbour and raised the threat to the wall the tree poses, on a number of ocassions. I have copies of that correspondence.

2. I have photographs showing damage to the wall which date back 5 years and beyond. I have also had the local tree officer inspect the tree for the purpose of pruning applications, and the correspondence with the local council also makes reference to the damage being caused by the tree. There is no doubt that a) the tree has caused the damage and b) the potential threat of damage has been known about by all concerned for a number of years, and this can (in my opinion) be easily proven.

3. The wall predates the tree by (one estimates) about 60 years. The garden wall is understood to have been built at the same time as our house, which was constructed in or around 1895.

4. Ownership of the wall is not entirely clear, as both our deeds and our neighbours deeds do not make explcitic reference to it. As a result, we have assumed, and I believe the law would assume, that we are jointly responsible for it.

My understanding from the responses above, is that legal responsibility for damage caused by the tree lies with the owner of the tree, and that therefore my neighbour is responsible for the cost of reinstating the wall and making good any damage caused by its collapse. (please correct me if I've not understood this correctly).

If the tree had fallen down whilst it was collapsing the wall, this would leave us with a fairly straight forward situation to resolve - the wall would just need to be rebuilt, and the cost borne by the owner of the tree. Unfortunately, that's not the situation. The tree is still standing and poses a continuing threat to any wall built where the original wall was built, or where the boundary is located. This being the case I really need some guidance on the following more complicated issues:

1. The tree has now encroached across the boundary and into our garden. If I look at the original line of the boundary wall, the tree has transgressed across that line and is growing partly in our garden, even at root level. It may only be an inch or so, but it is no longer exclusively in my neighbour's garden. It's for this reason that the wall has fallen over - it was already bowing becasue fo the direction of grwoth, and it didn't need much movement in the recent stroms to collapse. Above the roots, it leans into our garden, such that 80-90% of the tree is actually located in/above our garden. As a result, it is not possible to rebuild the wall along the line of the boundary, and I have no intention of forfeiting part of my garden to allow the wall to be moved. What is the legal position here, as far as both my right to fell the tree, the neighbours right to refuse to allow the tree to be felled and the need to reinstate a boundary in keeping with the original 100+ year old wall (located within a conservation area) are concerned?

2. My desire is to fell the tree. My neighbour's desire is not to fell the tree. Our respective motives are I believe not relevant to the issue in hand, but for the record, I was until recently the owner of a woodland dedicated to charitable activities for the impaired and disabled. I grew up in the countryside and love trees, if that doesn't sound facile. That said, the specimen in question has outgrown the small suburban garden it is located in, has a large conifer growing some 5 feet away, with which it competes for light and water, and by way of significantly less important considerations, deprives our garden of the same basic amenities. That's not to mention the damage it has already caused and could potentially cause in the future. This being the case, what are my options and rights in regard to the tree and it's felling? I understand I can submit an application to fell, and that the council can either approve it, or protect the tree with a TPO, thereby ensuring it cannot be felled or pruned without consent (I already need consent to prune it, and last time I applied, I was given permission for a 10% crown reduction which amounted to little omore than a haircut). What considerations will the council have in deciding whether or not to permit felling, and is there anything else I should be considering or taking account of in deciding how to proceed?

3. If the council were to protect the tree, and we were to rebuild the wall as close to the tree as is possible, am I right in thinking that the council will then be responsible for the protected tree and any damage it causes, and would therefore have to take responsibity for and bear the cost of subsequent damage to the wall, were it to be damaged again? Would the council also be responsible for damage to my house, if the tree were to fall on it?

In short, the cost of the replacement wall is an issue, but not the main one in my mind. The bigger issues relate to how and whether the wall can and be rebuilt at all, such that it follows the boundary line, and if so how and with what allowances for the tree. Further, given the current situation with regard to the location of the tree, it's transgression across the boundary, and the now collapsed wall, our ability to fell the tree prior to rebuilding the wall is also a major consideration, and I would be extremely grateful for any advice on these specific areas.

Thanks again for all the help.

Jules
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Re: Neighbour's tree just destroyed our boundary wall....

Postby Treeman » Sun Feb 09, 2014 12:31 pm

Trailerman wrote:Hi

Many thanks for all the helpful responses.

Just to clarify a few aspects of this situation:

1. Yes, I have written to my neighbour and raised the threat to the wall the tree poses, on a number of ocassions. I have copies of that correspondence.

2. I have photographs showing damage to the wall which date back 5 years and beyond. I have also had the local tree officer inspect the tree for the purpose of pruning applications, and the correspondence with the local council also makes reference to the damage being caused by the tree. There is no doubt that a) the tree has caused the damage and b) the potential threat of damage has been known about by all concerned for a number of years, and this can (in my opinion) be easily proven.

3. The wall predates the tree by (one estimates) about 60 years. The garden wall is understood to have been built at the same time as our house, which was constructed in or around 1895.

4. Ownership of the wall is not entirely clear, as both our deeds and our neighbours deeds do not make explcitic reference to it. As a result, we have assumed, and I believe the law would assume, that we are jointly responsible for it.

My understanding from the responses above, is that legal responsibility for damage caused by the tree lies with the owner of the tree, and that therefore my neighbour is responsible for the cost of reinstating the wall and making good any damage caused by its collapse. (please correct me if I've not understood this correctly).

If the tree had fallen down whilst it was collapsing the wall, this would leave us with a fairly straight forward situation to resolve - the wall would just need to be rebuilt, and the cost borne by the owner of the tree. Unfortunately, that's not the situation. The tree is still standing and poses a continuing threat to any wall built where the original wall was built, or where the boundary is located. This being the case I really need some guidance on the following more complicated issues:

1. The tree has now encroached across the boundary and into our garden. If I look at the original line of the boundary wall, the tree has transgressed across that line and is growing partly in our garden, even at root level. It may only be an inch or so, but it is no longer exclusively in my neighbour's garden. It's for this reason that the wall has fallen over - it was already bowing becasue fo the direction of grwoth, and it didn't need much movement in the recent stroms to collapse. Above the roots, it leans into our garden, such that 80-90% of the tree is actually located in/above our garden. As a result, it is not possible to rebuild the wall along the line of the boundary, and I have no intention of forfeiting part of my garden to allow the wall to be moved. What is the legal position here, as far as both my right to fell the tree, the neighbours right to refuse to allow the tree to be felled and the need to reinstate a boundary in keeping with the original 100+ year old wall (located within a conservation area) are concerned?

2. My desire is to fell the tree. My neighbour's desire is not to fell the tree. Our respective motives are I believe not relevant to the issue in hand, but for the record, I was until recently the owner of a woodland dedicated to charitable activities for the impaired and disabled. I grew up in the countryside and love trees, if that doesn't sound facile. That said, the specimen in question has outgrown the small suburban garden it is located in, has a large conifer growing some 5 feet away, with which it competes for light and water, and by way of significantly less important considerations, deprives our garden of the same basic amenities. That's not to mention the damage it has already caused and could potentially cause in the future. This being the case, what are my options and rights in regard to the tree and it's felling? I understand I can submit an application to fell, and that the council can either approve it, or protect the tree with a TPO, thereby ensuring it cannot be felled or pruned without consent (I already need consent to prune it, and last time I applied, I was given permission for a 10% crown reduction which amounted to little omore than a haircut). What considerations will the council have in deciding whether or not to permit felling, and is there anything else I should be considering or taking account of in deciding how to proceed?

3. If the council were to protect the tree, and we were to rebuild the wall as close to the tree as is possible, am I right in thinking that the council will then be responsible for the protected tree and any damage it causes, and would therefore have to take responsibity for and bear the cost of subsequent damage to the wall, were it to be damaged again? Would the council also be responsible for damage to my house, if the tree were to fall on it?


In short, the cost of the replacement wall is an issue, but not the main one in my mind. The bigger issues relate to how and whether the wall can and be rebuilt at all, such that it follows the boundary line, and if so how and with what allowances for the tree. Further, given the current situation with regard to the location of the tree, it's transgression across the boundary, and the now collapsed wall, our ability to fell the tree prior to rebuilding the wall is also a major consideration, and I would be extremely grateful for any advice on these specific areas.

Thanks again for all the help.

Jules

4. Now there is your main problem, unless you can establish that you have an interest in the wall this goes no further than clearing it and a few squashed plants. The court wont assume anything, they expect you to demonstrate

3.Answer NO and No

You mention applications in earlier posts which implies the tree is protected by TPO, then in this post you say
If the council were to protect the tree
So is it protected or not?
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