Tree in Private Road damaging property

Tree in Private Road damaging property

Postby Buca1uk » Thu Jun 29, 2017 9:20 am

Myself and my Neighbour have a large tree at the back of our Garden which is situated on a Private Cul da Sac Road. This tree has started to lose it's limbs and Damage our Property, a large branch has fallen on my Daughters wendy house and my neighbour now has a whole in his Gargae as a Branch has grown through it. I'm worried that more limbs will fall off and could potential danger our Children who use the Garden quite alot.

As this Tree is on a private road the Local Authorities have no Responsibility for the care and upkeep of trees or bushes. The houses on the private road used to have an Association but it appears this has been disbanded for a number of years and the residents don't have any funds (as a collective). We have informed our Parish Council who have written to the residents to make them aware, the next step would be for me to contact my local MP ? I'm not too sure how best to approach this, Whilst I don't want to upset my neighbours, as far as I understand they have an obligation to investigate and resolve if needed.

Any advice (legal) would be appreciated. We have had a Tree Surgeon come and visit the tree and he deems it Dangerous. This Tree was cut back in the summer about 6 years ago but mainly on one side (the private road side), since then the other side of the tree has grown and has more branches, which is where our Garden is.

Hope someone can assist.
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Re: Tree in Private Road damaging property

Postby MacadamB53 » Thu Jun 29, 2017 11:50 am

Hi Bucauk1,

if your property abuts the private road then the law presumes (considers as fact) that your property includes the coextensive section of the road of to the centre of the road.

here's how HMLR put it in their guidance:

There are two presumptions relating to the ownership of the soil of a roadway (where a road or path is a highway maintainable at the public expense, the surface vests in the highway authority: section 263 of the Highways Act 1980).

The first is that the owner of land abutting on a road is also the owner of the adjoining section of the road up to the middle line (ad medium filum).

The second is that where a conveyance or transfer of land abutting on a road is made by someone owning land on one side of it only, then if they can be proved or are presumed, to own also the road up to the middle line, this half of the roadway is included in the conveyance or transfer.

Both of these presumptions may readily be rebutted.


that last bit I've emboldened means that, whilst the law considers it a fact a section of the road is part of your property, the law cannot ignore evidence to the contrary and any such evidence will override the presumption - if there is evidence the section of road cannot be part of your property then it is no longer presumed to be.

if the presumption stands and this would mean you or the other affected neighbour owns the tree I would take action as the owner.

this "association" you mention - does it own the road or eg oversee maintenance on behalf of interested parties?

Kind regards, Mac
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Re: Tree in Private Road damaging property

Postby Buca1uk » Thu Jun 29, 2017 12:06 pm

Hi,

Thanks for your Response. Yes the Association (or what there is of it) should oversee the maintenance on their road and they did until a few years ago, my understanding was that one person was responsible for collecting the money and carry out any work (cutting the communal Grass etc etc) but since he moved no one has taken ownership or responsibilities of these duties.

As I have been advised that the tree is dangerous I was thinking of paying to have the whole tree cut back and then claiming my money back via the courts from the association, I mean if any more branches were to fall and injure lives it would be the association that is liable ?

This tree is on the side of their road about 1/2 a Metre from my Fence so I believe (to the best of my knowledge) the road is not Part of my property.

Simon
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Re: Tree in Private Road damaging property

Postby MacadamB53 » Thu Jun 29, 2017 2:59 pm

Hi Simon,

if, after climbing over your fence at the back I land on either the road or a verge beside the road then the law presumes (considers as fact) that your property includes all the coextensive land between your back fence and the centre of the road.

meaning, if the tree stands on this land, it's your tree.

from the details you've provide this seems to be the situation.

if it is not - because the tree doesn't grow on that portion of land or you're aware of evidence which rebuts the presumption (which you have not yet mentioned on here) - then it is the landowner who may be found liable and you need to ascertain who that is because the "association" may not be the landowner.

Kind regards, Mac
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Re: Tree in Private Road damaging property

Postby TO » Thu Jun 29, 2017 5:47 pm

Hi Simon

You need to ascertain the tree ownership. You will then be in a position to decide what action you can, or cannot, take. Mac has spelt it out for you.

If it's your tree, you can do what you want.

If it's your neighbours tree then you can cut the tree back to the boundary, offer the arisings back to the tree owner, and if they decline your offer you can dispose of the branches in a responsible manner. Anything else will require the agreement of the tree owner.

You will of course have to check for statutory protection, and if it is protected, agree the works with the council via the appropriate procedure.

The tree surgeon will of course say the tree is dangerous and needs removing, it's their next big pay day, at your expense. Get some proper advice from an arboriculturist if you want to know if the tree is safe.

If the Association, Parish Council, or your MP don't own the tree it's difficult to see what they can do, apart from maybe liaise withe the owner.

How are the Association, or whoever the owner is, liable for your costs in exercising your right to cut to the boundary. Liability for any harm will be apportioned after the event by the Courts on the evidence before them, including ownership.

Don't presume, find the owner, and then it will be clearer what you can, or cannot do, and who you have to liaise with to get more done if you are not the owner.

TO
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Re: Tree in Private Road damaging property

Postby Buca1uk » Fri Jun 30, 2017 10:06 am

Hi,

Thanks for your comments and feedback. The tree is owned by the Association of Houses that live in the Private road, 6 years ago they collectively Paid to have the Tree cut back. Myself and my Neighbour do not have ownership of this tree. The problem we face is that we need them to act on the advise we have been given (and from the Damage to our Properties). The road is a private un-adopted road which the local authorities have no responsibilities for, so the council will not assist. Any costs or claims are the responsibilities of the owners of the road.

I had the parish Councillor come out along with a High Agency person who agreed with what I mentioned above.

So I need to get the association to act.
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Re: Tree in Private Road damaging property

Postby MacadamB53 » Fri Jun 30, 2017 11:11 am

Hi Buca1uk,

The tree is owned by the Association of Houses that live in the Private road, 6 years ago they collectively Paid to have the Tree cut back

are you assuming the first part of that sentence on the second part? or have you actually seen the name of the Association of Houses on the title register entries / paper deeds?

I'm only asking because there's many a private road in E & W that remain of unknown ownership (unregistered) and whose users form an association to oversee maintenance but who do not own the land.

Kind regards, Mac
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Re: Tree in Private Road damaging property

Postby TO » Sun Jul 02, 2017 7:19 pm

Buca1uk wrote:The tree is owned by the Association of Houses that live in the Private road, 6 years ago they collectively Paid to have the Tree cut back. Myself and my Neighbour do not have ownership of this tree. The problem we face is that we need them to act on the advise we have been given (and from the Damage to our Properties). The road is a private un-adopted road which the local authorities have no responsibilities for, so the council will not assist. Any costs or claims are the responsibilities of the owners of the road.

I had the parish Councillor come out along with a High Agency person who agreed with what I mentioned above.

So I need to get the association to act.
Someone owns the land and you need to find out who that is rather than guessing ownership. Check the title plan with your deeds. You could also find the owner via the Land Registry website. It's usual in the circumstances you describe that the householders own up to the center of the road. Imagine your boundaries, and those of all your neighbours, extending to the center of the road. That's how it works. Unadopted does not mean ownerless.

It's not unusual for residents to form an association to share the costs of repairs/management, along the length of the road, but that does not confer ownership. It just spreads the cost of maintenance, which benefits all the residents, equally. It's also not unusual to find some residents won't contribute to the association, preferring instead to have the benefits, but not bear any of the costs.

It's a private, un-adopted road, the Parish Council have no responsibility, neither to the borough/district/metropolitan council or Highways Agency. So they would agree with you that the owner is responsible, they are. You need a definitive answer as to who that is, so check your title, and check via the Land Registry to get a definitive answer.
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Re: Tree in Private Road damaging property

Postby arborlad » Mon Jul 03, 2017 9:35 am

Buca1uk wrote:Hi,

Thanks for your comments and feedback. The tree is owned by the Association of Houses that live in the Private road, 6 years ago they collectively Paid to have the Tree cut back. Myself and my Neighbour do not have ownership of this tree. The problem we face is that we need them to act on the advise we have been given (and from the Damage to our Properties). The road is a private un-adopted road which the local authorities have no responsibilities for, so the council will not assist. Any costs or claims are the responsibilities of the owners of the road.

I had the parish Councillor come out along with a High Agency person who agreed with what I mentioned above.

So I need to get the association to act.




Think you mean Authority, they deal with all things local, Agency deals with motorways and some trunk roads.

Given what you have posted, the likelihood of you owning land beyond your boundary feature seems remote - not sure why it was mentioned. Land ownership can be checked here: https://www.gov.uk/search-property-info ... d-registry Something you can do yourself very quickly is the history of the two lots of properties, yours and the cul-de-sac, if yours are considerably older and there used to be fields behind you - it's even more unlikely that you have any interest in the tree.

Has your Tree Officer seen the tree, they would be best placed to know the condition of the tree and how dangerous it might be. The council do have the Miscellaneous Provisions Act, these are wide ranging but discretionary powers to enter private land, carry out work and charge the landowner, the tree would have to present a real danger to life or property.

What is the possibility that you, your neighbour and the association can jointly fund the removal of the tree?........this would achieve the swiftest resolution of the problem.
arborlad

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Re: Tree in Private Road damaging property

Postby Buca1uk » Mon Jul 03, 2017 11:43 am

Hi,

I checked the Land registry and I do not own the Land that the Tree resides on. As far as I understand our properties are a lot older then those within the cul-da-sac.

I've contacted the council to see if there is a TPO order on it, I assume, as we don't live within a conservation area, that there won't be, but I would rather check first.

How do I get hold of my "Tree Officer" ? Is this done via the Council ?

Myself and My neighbour have agreed to contribute to the cost of the work (in principle) but we have no way of contacting the Association within the cul-da-sac as it seems no-one has taken ownership of it ? It maybe something I may need to project manage myself to get there heads together, the councilor did put letters through there houses but my guess is they have thrown them in the bin!

Really appreciate your responses on here.
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Re: Tree in Private Road damaging property

Postby MacadamB53 » Mon Jul 03, 2017 11:57 am

Hi arborlad,

Given what you have posted, the likelihood of you owning land beyond your boundary feature seems remote - not sure why it was mentioned.

the only thing posted by the OP which suggests the 'ad medium filum' legal presumption is not relevant is their assertion the tree is owned by the "Association of Houses".

if this assertion is ill-founded - and we've had no mention yet from the OP about how they've come to this conclusion - the legal presumption is relevant.

the legal presumption is that they own the land beyond the fence to the mid-point of the road - which can be rebutted by contrary evidence (typically, eg the land included in the freehold title owned by OP has not previously been a part of the same title as the land included in the freehold title for the road OR the creation of the freehold title owned by the OP pre-dates the creation of the road).

Kind regards, Mac
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Re: Tree in Private Road damaging property

Postby MacadamB53 » Mon Jul 03, 2017 12:10 pm

Buca1uk wrote:Hi,

I checked the Land registry and I do not own the Land that the Tree resides on. As far as I understand our properties are a lot older then those within the cul-da-sac.

I've contacted the council to see if there is a TPO order on it, I assume, as we don't live within a conservation area, that there won't be, but I would rather check first.

How do I get hold of my "Tree Officer" ? Is this done via the Council ?

Myself and My neighbour have agreed to contribute to the cost of the work (in principle) but we have no way of contacting the Association within the cul-da-sac as it seems no-one has taken ownership of it ? It maybe something I may need to project manage myself to get there heads together, the councilor did put letters through there houses but my guess is they have thrown them in the bin!

Really appreciate your responses on here.

Hi Buca1uk,

the title plan for the property you own will not show that the land beyond your fence is part of your property - just as all the many, many, many other properties have a title plan which doesn't show that they include to the mid-point of the roads they front onto.

most of the roads are owned - section by section - by the properties with frontage (be that front, side or rear frontage).

does someone else own the freehold title to the land over which the road runs?
if "yes" then the legal presumption is rebutted
if "no" then the legal presumption stands
was the land you own and the land over which the road runs ever part of the same title?
if "no" then the legal presumption is rebutted
if "yes" then the legal presumption stands
was the land you own separated from the larger parcel before the road was laid?
if "yes" then the legal presumption is rebutted
if "no" then the legal presumption stands

only if you are given or are aware of evidence which rebuts the legal presumption then the legal presumption stands - as mad or as unbelievable as you think that is.

Kind regards, Mac
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Re: Tree in Private Road damaging property

Postby arborlad » Mon Jul 03, 2017 12:11 pm

Buca1uk wrote:I've contacted the council to see if there is a TPO order on it,

How do I get hold of my "Tree Officer" ? Is this done via the Council ?




Yes, it is the TO that issues TPOs so it is the Council who is your point of contact on both points.
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Re: Tree in Private Road damaging property

Postby Buca1uk » Mon Jul 03, 2017 3:14 pm

Hi,

The council have confirmed that the tree does Not have a TPO against it. As for who owns the land that the tree resides on, I have requested a "SIM" (Search of Index) from the land Registry to see if that will shed any light.
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Re: Tree in Private Road damaging property

Postby arborlad » Mon Jul 03, 2017 4:34 pm

Buca1uk wrote:Hi,

The council have confirmed that the tree does Not have a TPO against it. As for who owns the land that the tree resides on, I have requested a "SIM" (Search of Index) from the land Registry to see if that will shed any light.




Should be able to do this online at a cost of £3, except in the unlikely event that the land remains unregistered.
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