Legislation / case law re overhanging branches?

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pondswimmer
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Legislation / case law re overhanging branches?

Post by pondswimmer » Sun Sep 30, 2018 7:37 pm

My neighbour is complaining that some branches from my tree 'encroach' into her garden, basically they are tangled with some of her branches that she wants to get cut back. She has advised she will get quote for the work for chopping my branches and send me the bill. I have read in various places it is not tree owners responsibility? She is a solicitor so is likely to go to small claims court. Do I have a case to refuse? Is there any clear case law or legislation about these matters? help appreciated.

ukmicky
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Re: Legislation / case law re overhanging branches?

Post by ukmicky » Sun Sep 30, 2018 8:35 pm

She has a right of abatement that's all because legally the natural growth of branches like with roots it is classed as a nuisance or simple encroachment , not a trespass

Lemmon v Webb (1894) "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."
There has never been a case where such an action for the cost of removal has won , where there is no damage element.

Unlike with trespass where you only have to prove that the land was accessed and without permission of the owner.. For a nuisance to be actionable in court where she can sue you for the cost of removing the branches any interference must be substantial and with trees for it to become substantial they must be causing damage which is reasonably foreseeable .

Therefore you can refuse to pay because its a non actionable nuisance as your branches are not causing damage. Think about it this way, under most land will be roots from multiple trees , some from trees 50 plus meters away. A root is no different to a branch even though its under the ground . Now imagine what would happen if we could all sue our neighbours for removal of those roots even though they were causing no damage.

She must by law offer you the cuttings back. Also somewhere in the Mills vs Brooker judgement I was told that the judge said you do not have to accept them back and if you refuse to take them they have to dispose of them there self. I have never been able to get hold of the full transcript of the case due to it age but I believe its true even though without the transcript I cant prove that is the case.



don't be surprise if she still threatens and thinks she can win because that's what solicitor do . No solicitor knows all the law ,most only know about the field they specialise in .
Any information provided is not legal advice and you are advised to gain a professional opinion

Morph
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Re: Legislation / case law re overhanging branches?

Post by Morph » Wed Oct 31, 2018 10:37 am

I'm responding late to this and may be the issue is being sorted out. When I read this it reminded me of a dispute I had, though on a different matter, where the neighbour was a solicitor, and that did change my perspective at the time of how I managed the issue.

But reading the post, could I ask whether your tree/branches are arguably growing too high/growing close to buildings etc/blocking light of neighbours or adding privacy etc? In other words, even if you think your neighbour may be being heavy handed - do they have a point in wanting your tree on their side cut back? I ask openly because if you think your tree does need maintaining/pollarding etc may be use the chance to positively work with the neighbour to sort their tree and your tree out at the same time. It is clear from the forum that your neighbour can cut back any over-hangs that are on their side of the boundary at their cost.

With respect to the neighbour being a solicitor, as ukmicky says, they may not be solicitor dealing with property/conveyancing. But they will probably know the dispute process better and their use of language can sound daunting , but don't be put off. But basically any correspondence can pretty much say anything until you reach a Letter Before Action (though the civil process states parties to a dispute remain reasonable). What could happen is they get quotes and do the work and write and ask for shared payment stating "as we discussed before the work was done" etc, trying to put pressure on you.

My view would be:
I) if your tree needs maintaining etc use this as an opportunity to get it done on a reasonable basis;
ii) if you don't agree with the neighbour let them know either verbally and politely that you don't agree to their position, that they can cut to your boundary at their own cost. Or say you want to see and agree any quote and work done before you accept. But document the discussion, and if not too late take lots of pics. or write a letter stating the same. This will help resist their claim you agreed anything. And of course if you can use this as a basis to resolve offer any alternatives ie offer to go around to see from their point of view and what could be done. As a solicitor they will probably hate you taking the higher ground!


Good luck.

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