Can someone cut bush bordering public land?

Collaborate
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Re: Can someone cut bush bordering public land?

Post by Collaborate » Wed Dec 27, 2017 7:37 am

I agree with ukmicky.

As for self help being a general rule, you can not apply it to all situations and may fall foul if you do.

See the family law case of Imerman v Tchenguiz http://www.familylawweek.co.uk/site.aspx?i=ed115137 (my area of practice) for an example.

Roblewis
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Re: Can someone cut bush bordering public land?

Post by Roblewis » Wed Dec 27, 2017 9:53 am

I rather suspect that the only party that can prevent self help in this situation is the LA itself on the basis that this is unauthorised work taking place on the highway. The tree/shrub owners have very little control once the plants intrude into the public space

TO
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Re: Can someone cut bush bordering public land?

Post by TO » Thu Dec 28, 2017 9:33 am

ukmicky wrote: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.
Good, we move forward.
ukmicky wrote:...however its for private nuisance. Those cases you have mentioned are cases to do with private nuisance
'Private nuisance' is a novel concept, as is 'public nuisance'. Nuisance is nuisance, but please provide your references to cases setting out the principles and differences of private and public nuisance.
ukmicky wrote: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
. But not only that.
ukmicky wrote: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 is unlawful. You have the lawful right to use all and each part of the highway. Does the hedge owners unlawful obstruction take precedence over your lawful right leaving you no option but to accept it.
ukmicky wrote:Obstruction of the highway as it is not a private nuisance .
Quite right, it's a criminal offence.
ukmicky wrote: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 Courts interpret the law, and determine guilt or otherwise. They do not make statute law, which is what the Highways Act is. And that quite clearly sets out that if you obstruct the highway you are guilty of an offence. Just because are not prosecuted does not mean the offence hasn't been committed.
ukmicky wrote:Whilst everyone has a right to use the whole of the highway the courts have ruled the de-minimis rule does apply
Then how cab you use the whole and each part of the highway if some of it can be obstructed?
ukmicky wrote: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 .
They can, and they have, and the Council and their argument of de-minimis/fractional obstruction was found wanting.
Collaborate wrote:As for self help being a general rule, you can not apply it to all situations and may fall foul if you do.
I've never said it is a general rule applicable to all situations, it's not. But to remove an unlawful obstruction, a bit of vegetation encroaching over a highway, which is creating a danger, it is a simple remedy, quickly, and cheaply undertaken allowing you to exercise your lawful rights to access the whole and each part of the highway, rather than pursuing an expensive, and long drawn out action via the Courts because the Council wouldn't act.

arborlad
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Re: Can someone cut bush bordering public land?

Post by arborlad » Thu Dec 28, 2017 12:15 pm

catmanns wrote: 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.


There are two separate issues here, the cutting and the disposal of the arisings. I have done similar many times without any feelings of guilt, the big difference is, once done, the arisings joined whatever was on the truck from that days work, and were disposed of responsibly. Placing a bag of clippings on the driveway would be considered a trespass.
arborlad

smile...it confuses people

ukmicky
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Re: Can someone cut bush bordering public land?

Post by ukmicky » Fri Dec 29, 2017 12:38 am

TO


The way this is going If I said the sky was blue you would say it was yellow.


There is no point me wasting my time trying to discuss this further with you .

The end .
Advice given is not legally qualified and you are advised to gain a professional opinion

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