Can someone cut bush bordering public land?

Can someone cut bush bordering public land?

Postby catmanns » Mon Dec 18, 2017 5:57 pm

I was wondering if anyone can help.

This is to do with a neighbour dispute.

Neighbour A has a bush in their front garden that has overgrown onto the pavement (owned by the local Council/ Highways). It was not a massive overhang.

Neighbour B lives next door to neighbour A. Neighbour B is elderly and struggled to get out of her driveway and past the overhanging bush. It was the part that overhung onto the pavement that causes her problems when walking out of her address and onto the pavement.

Neighbour B has a private gardener and asked him to trim back the bush so that she could get past. He has done so, put the clippings in the bag, and then placed the bag of clippings on the driveway of neighbour A.

Neighbour A has made formal complaint with the authorities that the gardener should never have cut the bush. She acknowledges that if her bush had overhung her neighbour's garden they would have had the right to cut it back to the boundary line. The query is whether they had a lawful right to do so, with the part of the bush overhanging the public pavement?

I am aware that in effect neighbour A has potentially been saved money as the Council could have requested that neighbour A have to cut it back themselves if it was causing an obstruction.

Please can someone help. Did neighbour B lawfully have the right to trim back the bush? If so does anyone know what piece of law covers this?

Thank you.
catmanns
 
Posts: 1
Joined: Wed Dec 13, 2017 7:32 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Can someone cut bush bordering public land?

Postby MacadamB53 » Mon Dec 18, 2017 6:36 pm

Hi catmanns,

Did neighbour B lawfully have the right to trim back the bush?

yes - because she had the lawful right to use the pavement.

kind regards, Mac
MacadamB53
 
Posts: 6154
Joined: Mon Dec 10, 2012 12:13 am

Re: Can someone cut bush bordering public land?

Postby ukmicky » Wed Dec 20, 2017 12:42 am

MacadamB53 wrote:Hi catmanns,

Did neighbour B lawfully have the right to trim back the bush?

yes - because she had the lawful right to use the pavement.

kind regards, Mac

Mac

Does that provide the right to actually cut it back though.

Under the highways Act only a competent authority has the right under notice to the owner.

Under common law my head tells me you must be right because it’s one of those things that seems like it should be right but thinking about it I haven’t personally seen anything which I could point to that would provide someone with the authority to actually do it.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Can someone cut bush bordering public land?

Postby TO » Thu Dec 21, 2017 10:29 am

ukmicky wrote:
MacadamB53 wrote:Hi catmanns,

Did neighbour B lawfully have the right to trim back the bush?

yes - because she had the lawful right to use the pavement.

kind regards, Mac

Mac

Does that provide the right to actually cut it back though.

Under the highways Act only a competent authority has the right under notice to the owner.

Under common law my head tells me you must be right because it’s one of those things that seems like it should be right but thinking about it I haven’t personally seen anything which I could point to that would provide someone with the authority to actually do it.


Neighbour B has a right to self-help. As long as they don't exceed what is reasonable then they are quite entitled to clear the highway of an obstruction so they can use it safely, and they have the right to use the whole of the highway.

s154 Highways Act 1980, which I presume is being alluded to, gives a competent authority the powers to force the tree/hedge owner to cut back the encroaching vegetation, and if they don't, do it themselves and charge the landowner. It doesn't preclude self-help by someone using the highway.

So, yes they were quite within their rights to trim back the encroaching vegetation. Maybe the authorities might mention to neighbour A that obstructing the highway is a criminal offence and that neighbour B's gardner did them a favour and saved them being served with a Notice under s154 to clear the obstruction.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby ukmicky » Sat Dec 23, 2017 1:47 am

TO wrote:
ukmicky wrote:
MacadamB53 wrote:Hi catmanns,

Did neighbour B lawfully have the right to trim back the bush?

yes - because she had the lawful right to use the pavement.

kind regards, Mac

Mac

Does that provide the right to actually cut it back though.

Under the highways Act only a competent authority has the right under notice to the owner.

Under common law my head tells me you must be right because it’s one of those things that seems like it should be right but thinking about it I haven’t personally seen anything which I could point to that would provide someone with the authority to actually do it.


Neighbour B has a right to self-help. As long as they don't exceed what is reasonable then they are quite entitled to clear the highway of an obstruction so they can use it safely, and they have the right to use the whole of the highway.

s154 Highways Act 1980, which I presume is being alluded to, gives a competent authority the powers to force the tree/hedge owner to cut back the encroaching vegetation, and if they don't, do it themselves and charge the landowner. It doesn't preclude self-help by someone using the highway.

So, yes they were quite within their rights to trim back the encroaching vegetation. Maybe the authorities might mention to neighbour A that obstructing the highway is a criminal offence and that neighbour B's gardner did them a favour and saved them being served with a Notice under s154 to clear the obstruction.
Hmmm.


The public have right of passage but that does not afford them the right to use all the highway all of the time and is similar to that of a private easement. They have a right to reasonable use only, which is why you can park your car on the highway and even though it causes an obstruction, providing there is reasonable access past it the member of the public cant use self help to remove it. Under the highway act the council can take action if the obstruction is significant but the public have no powers of self help under the highways act.

For a member of the public to cut back my vegetation overhanging the highway there needs to be a common law right. Common law rights come about through cases that have gone before the courts. The only case law I have read that gave the public the right to self help over a highway and physically remove an obstruction that in normal circumstances could have lead them to being sued by the owner of the property was when the member of the public suffered sufficient injury to their rights to the degree that they could have sued for damages.

Now I'm still not saying they do not have a right because I honestly do not know and there maybe some right that has come about through common law but as of yet I have not found anything. Do you know of anything.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Can someone cut bush bordering public land?

Postby TO » Sat Dec 23, 2017 3:53 pm

ukmicky wrote:The public have right of passage but that does not afford them the right to use all the highway all of the time and is similar to that of a private easement.
But it's not a private easement, its the Queens highway. Your assertion that the public do not have a right to use the whole highway flies in the face of what the Courts have said. The court in Hale v Hants & Dorset Motor Services Ltd and Another [1947] categorically stated that the bus driver was entitled to use the whole of the highway unless there is some special reason to prevent him from doing so. This was a case about a bus hitting a branch, but the point is the bus driver, as any other highway user would be, was entitled to use the whole of the highway. I'm sure there will be umpteen other cases dating back centuries about the same thing.

ukmicky wrote:They have a right to reasonable use only, which is why you can park your car on the highway and even though it causes an obstruction, providing there is reasonable access past it the member of the public cant use self help to remove it.
You're clutching at straws a bit here. Parking your car on the road is just part and parcel of the normal use of the highway. Then you seem to be in agreement with me, that where an obstruction exists you can exercise self-help, where it is reasonable to do so.

ukmicky wrote:For a member of the public to cut back my vegetation overhanging the highway there needs to be a common law right.
A common law right to what, remove an obstruction from the highway over which you have a right to pass and re-pass, use the whole of the highway, and which by allowing the encroachment the tree/shrub owner is committing a criminal offence. Removing obstructions from the highway has been going on for years. And on occasions between illustrious neighbours.

Lets not forget that;
1. The obstruction was causing problems.
2. The obstruction was a criminal offence.
3. You have every right to use the whole of the highway.
4. The idea of self-help is well enshrined in the legal system.
5. Encroachment that obstructs passage is considered a nuisance, and using self-help to abate that nuisance is not unreasonable.

Not being able to abate the nuisance would be to allow the criminal offence to continue, and deny the highway users of their rights.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby ukmicky » Sat Dec 23, 2017 8:40 pm

Your assertion that the public do not have a right to use the whole highway flies in the face of what the Courts have said. The court in Hale v Hants & Dorset Motor Services Ltd and Another [1947] categorically stated that the bus driver was entitled to use the whole of the highway unless there is some special reason to prevent him from doing so. This was a case about a bus hitting a branch, but the point is the bus driver, as any other highway user would be, was entitled to use the whole of the highway. I'm sure there will be umpteen other cases dating back centuries about the same thing
A branch overhanging a highway which buses etc are moving over is totally different to a bush over hanging a pavement . The danger of someone being harmed would provide an element of danger that would cause it to be a significant obstruction . This is also nothing to do with the public having a right to self help. Even the council do not have a right to abate a nuisance unless they follow the law or there is a significant danger that must be dealt with straight away. .

You're clutching at straws a bit here. Parking your car on the road is just part and parcel of the normal use of the highway. Then you seem to be in agreement with me, that where an obstruction exists you can exercise self-help, where it is reasonable to do so.
Sorry that was badly worded by me. So I will try again . A car parked on the highway unless in a designated box is always an obstruction but normally does not cause a significant obstruction . If it does cause a significant obstruction only the council and police have the authority to move it.

A common law right to what, remove an obstruction from the highway over which you have a right to pass and re-pass, use the whole of the highway, and which by allowing the encroachment the tree/shrub owner is committing a criminal offence. Removing obstructions from the highway has been going on for years. And on occasions between illustrious neighbours. .
Yes self help or abatement is a common law right and to use a common law right, the right must have been granted through a judgement in court. People doing something for years does not make it legal unless there is a law that says it does . Moving something to the side is also different to cutting it and causing damage to someone’s property .
1. The obstruction was causing problems.

Which is an option based on personal views .
2. The obstruction was a criminal offence.
That has not been determined because only the courts have the authority to determine that one.
3. You have every right to use the whole of the highway.


Yes you do but not all of the time. There are may things blocking our paths along a highway some are legitimate and some are not. The courts have said for it to be a criminal offence it needs to be significant obstruction but as this is in regards to public rights only the courts have the authority to determine if something on the highway impeding someone's right to pass and repass is a criminal offence.

4. The idea of self-help is well enshrined in the legal system.
Yes through common law but it doesn't cover every scenario and only covers those circumstances which are covered under a previous judgement that set the precedent. Moving someone’s plants to the side would probably be deemed as de minimis ,cutting someone plants can be deemed to be Criminal damage unless you can provide a legal authority to do it. If you were to stand up in court you could not just say the Idea of self help is enshrined into our legal system. The court would expect you to provide some legal authority that allowed you to perform your actions . You and I cant determine the plants presence to be a criminal offence so forget that one which leaves you with the common law right of abatement . However in your defense you would be expected to provide the specific reference to a case that provided the precedent which said you can cut back and potentially destroy someones elses property because it was interfering with your right of passage over the highway .

5. Encroachment that obstructs passage is considered a nuisance, and using self-help to abate that nuisance is not unreasonable.
Your opinion which will not provide a defense for someone in a court of law


Not being able to abate the nuisance would be to allow the criminal offence to continue, and deny the highway users of their rights.
Abatement of a criminal offence is not something you and I should be doing . Firstly the courts have to determine it to be a criminal offence after looking at the facts of the case. It is then left to the people who this country employs who are provided with the specific powers allowing them to take the actions required.



Even after all that I'm still not saying there is no right to do it. I believe there maybe a legal defense open to someone if they did but I cant find it.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Can someone cut bush bordering public land?

Postby TO » Sun Dec 24, 2017 11:29 am

ukmicky wrote:A branch overhanging a highway which buses etc are moving over is totally different to a bush over hanging a pavement
You're missing the point. One defence put forward was that the bus driver could have driven around the obstruction. That was dismissed by the Court as the bus driver had the right to use the whole of the highway. Whether it's a bus or a pedestrian it has long been established, and remains the case, that you have the right to use the whole of the highway.

ukmicky wrote:A car parked on the highway unless in a designated box is always an obstruction but normally does not cause a significant obstruction . If it does cause a significant obstruction only the council and police have the authority to move it.
Trying to extrapolate something to the Nth degree isn't a viable argument. Walking down a footpath, driving down the road, waiting for a bus, stopping to chat to your friend are all obstruction? No. They're all the lawful use of the highway, as is parking your car, which you will drive off in on your return. The overhanging hedge does not, and never will, move, it's an obstruction. The Highways Act makes that quite clear Where a hedge, tree or shrub overhangs a highway or any other road or footpath to which the public has access so as to endanger or obstruct the passage of vehicles or pedestrians,. There are no qualifying words such as 'unreasonably' before obstruct. The Courts view is small obstructions are obstructions, no matter how small.

The hedge was causing problems.
catmanns wrote:It was the part that overhung onto the pavement that causes her problems when walking out of her address and onto the pavement.
ukmicky wrote:Which is an option (sic) based on personal views .
It's what the thread is about, but in reality is of little importance. The hedge is causing an obstruction and it shouldn't be, the hedge owner has no right to obstruct the highway no matter by how little.

ukmicky wrote:2. The obstruction was a criminal offence.
That has not been determined because only the courts have the authority to determine that one.
No. Parliament makes the law, in this instance The Highways Act 1980. If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence

Regards self-help.
ukmicky wrote:... it doesn't cover every scenario and only covers those circumstances which are covered under a previous judgement that set the precedent.
Really?
ukmicky wrote:Moving someone’s plants to the side would probably be deemed as de minimis ,cutting someone plants can be deemed to be Criminal damage unless you can provide a legal authority to do it. If you were to stand up in court you could not just say the Idea of self help is enshrined into our legal system.
But it is.
ukmicky wrote:The court would expect you to provide some legal authority that allowed you to perform your actions .
self-help
ukmicky wrote:You and I cant determine the plants presence to be a criminal offence so forget that one
Yes we can, see above Ref Highways Act.
ukmicky wrote:which leaves you with the common law right of abatement . However in your defense you would be expected to provide the specific reference to a case that provided the precedent which said you can cut back and potentially destroy someones elses property because it was interfering with your right of passage over the highway.
How can a precedent come into being if you have to cite the specific case. What case did they cite demonstrating the precedent existed during the case that enshrined the precedent in common law. It's a bit chicken and egg that one.

The right to self-help is a well understood and established principle in its own right. Whether in exercising self-help you did so in a reasonable manner is what the Courts have to determine.

To conclude, the Courts have determined that; members of the public are in general entitled to unrestricted access to the whole and each part of a highway; any encroachment upon the highway which prevents members of the public from the enjoyment of access and amenity rights is an unlawful obstruction; and the law ignores de minimis, or fractional obstructions, in other words an obstruction is an obstruction no matter how small so it follows that any obstruction is an unlawful obstruction, and self-help is a well enshrined principle in our legal system, so long as you're reasonable when exercising your right to self-help, therefore, neighbour B was perfectly entitled to clear the obstruction.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby ukmicky » Sun Dec 24, 2017 5:05 pm

Innocent until proved guilty.

We will have to agree to disagree on this one.

Merry Christmas everyone, I hope you all have wonderful time.


Ps , don’t eat to much ☃️
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Can someone cut bush bordering public land?

Postby TO » Sun Dec 24, 2017 7:37 pm

ukmicky wrote:Innocent until proved guilty.

We will have to agree to disagree on this one
No you will have to disagree. Whilst you're resting off the Christmas dinner have a peruse of Herrick v Kidner, and all that it entails.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby ukmicky » Sun Dec 24, 2017 7:56 pm

Read it before and if I remember correctly it was regarding gates placed on a highway which totally different to plants naturally growing over a highway.

It also does not provide any authority in regards to their being a right for the public to take the law into there own hands and remove the obstruction.


I will read it again however in case I’m thinking of the wrong case
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Can someone cut bush bordering public land?

Postby TO » Mon Dec 25, 2017 7:36 pm

ukmicky wrote:Read it before...
Reading is one thing. Understanding is another. It's not about what is causing the obstruction, it's about obstruction. And that applies whether the obstruction is a gate and gate posts, or vegetation. Obstruction is obstruction and an offence no matter how small. The Court made that clear. That sets the precedence for the next case, and the answer to the original question.

Self-help is, as I've previously said, a well enshrined PRINCIPLE of English law. And one things for sure, there's nothing new under the sun, or in the Courts. Ok that's two things. But who's counting.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby Collaborate » Tue Dec 26, 2017 9:29 pm

Whilst the Highways Act can enable the LA to take action, there is no similar provision to enable a member of the public to take action.

A neighbour suffering from overhang has a right to cut back due to their ownership of the neighbouring land.

Until someone furnishes me with statutory authority for a member of the public to cut back, or case law containing clear law to that effect, it is safest for the member of the public to contact their LA. "Self help" may lead to a charge of criminal damage. It isn't enshrined in law.
Collaborate
 
Posts: 1232
Joined: Mon Feb 23, 2015 10:17 am

Re: Can someone cut bush bordering public land?

Postby TO » Tue Dec 26, 2017 10:28 pm

Collaborate wrote:"Self help" may lead to a charge of criminal damage.
It may do, but that would be for the Courts to rule on.
Collaborate wrote:It, [self help], isn't enshrined in law.
But it is,and has been for centuries.

Self-help, in the sense of a legal doctrine, refers to individuals' implementation of their rights without resorting to legal writ or consultation of higher authority, e.g. to simply abate nuisances.

Going back few years. In Moffett v Brewer (1848) Iowa 1 Greene 348, 350. Greene J said: 'This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy, and authorised only in cases of particular emergency, requiring a more speedy remedy than can be had by the ordinary proceedings at law."

More recently. In Burton v Winters [1993] 1 WLR 1077. Lloyd LJ said this about the relevant principles: "Ever since the assize of nuisance became available, the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Thus, it was Bracton's view that where there is resort to self-redress, the remedy should be taken without delay." and "Self redress is a summary remedy, which is justified only in clear and simple cases, or in an emergency."

From Blackstone's Commentaries on the Laws of England, Book III, chapter 1: 'And the reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.', and;

Salmond and Heuston on Torts, 20th ed. (1992) p. 485; Clerk & Lindsell on Torts, 16th ed. (1989) p. 36; Fleming, The Law of Torts, 7th ed. (1987), p. 415 and Prosser and Keeton, The Law of Torts, 4th ed. (1971), p.641 all follow a similar line.

In Prosser and Keeton: 'Consequently the privilege [of abatement] must be exercised within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate; if there has been sufficient delay to allow resort to legal process, the reason for the privilege fails, and the privilege with it.'

For something not enshrined in law there's an awful written about it in the law books, and a lot of legal cases revolving around it, and there have been for centuries.

Edit:
Collaborate wrote:It, [self help] isn't enshrined in law.
I've just Googled Principle of self-help in law. 25.8 million results came back. One of them might convince you that the principle of self-help is enshrined in law. Happy reading.
TO
 
Posts: 654
Joined: Wed Dec 28, 2005 2:05 pm

Re: Can someone cut bush bordering public land?

Postby ukmicky » Wed Dec 27, 2017 2:03 am

TO


I think I understand why we have been at loggerheads over this one.

Yes I totally agree self-help is enshrined through common law into our legal system and yes there is heaps of case Law for the right of self help , however its for private nuisance. Those cases you have mentioned are cases to do with private nuisance and to help I have listed below the circumstances the courts have said when someone can utilize the right of self help .


(a) it is required in an emergency to safeguard life or property and then only
(b) if its a simple case
(c) when there has been no delay in action since the nuisance first occurred .
(d) When the cost of the landowner going to court is such that it outweighs the Act of abatement.
(e)Where a court has not previously ruled on the case.


For someone to commence an action for private nuisance or to utilize the right of self help /abatement under private nuisance the claimant must have a legal interest in the land[/b]. You or I may by law have a legal interest in the land in regards to the subsoil of the highway outside our houses but we have no legal interest in the land over the surface the public have a right to use.



Obstruction of the highway as it is not a private nuisance is dealt with two ways .

1) Public nuisance laws . Public nuisance can be a tort or criminal. So you can sue someone for damages for public nuisance but to do so you need to show you have be harmed to a higher degree than the rest of the general public or it can be dealt with under criminal law by the police.

2) The Highways Act where the council can instigate an action.

In this country no one is considered guilty of any criminal Act unless found so by court of Law. Due to that no one is legally guilty of the offence of obstruction the highway until a court rules so . The plants in this case overhanging a highway may be an obstruction causing a public nuisance but until that has been determined by a court , as this countries legal system is based on the principle that you are innocent until proven guilty it is not.

Whilst everyone has a right to use the whole of the highway the courts have ruled the de-minimis rule does apply. A council also has a right determine if an obstruction is regarded as de-minimis . If a member of the public disagree with the councils decision the highways act has a process to allow then to legally appeal the councils decision .
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4613
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Trees

Who is online

Users browsing this forum: Bing [Bot] and 1 guest