TREES OLDER TAN THE HOUSES.

celt
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TREES OLDER TAN THE HOUSES.

Post by celt » Tue Feb 13, 2007 12:51 pm

Can anyone assist.

I have Poplar trees at the bottom of my garden, which I have been informed by elderly neighbours, were mature when the house was built in 1921 and formed part of the field boundary. The ground is haevy Middlesex clay.

In the 1930's more houses were built in the fields and have 1950's single skin, asbestos cement roofs.

Recently a neighbour in one of the 1930's complained that the ground movement has caused cracks in the floor of their garage. They are saying that the poplars are drying out the soil and have caused the ground movement. They are insisting that the trees are cut down.

My argument is that the ground is clay and the trees were there before the houses and garages and therefore the construction should have taken all this into account. These are not the only trees in the vicinity, but they the largest.

How do I stand in this, will the law insist that the trees are felled?

Arbtech
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Post by Arbtech » Tue Feb 13, 2007 3:00 pm

Sir

Your arguement is regrettably flawed.

If your neighbour can prove beyond reasonable doubt that your tree(s) have caused damage to their property, you are potentially liable for a claim for damages plus injunction (& costs) owing to your tree(s) being an actionable nuisance. If your neighbour has insurance, their underwriters will cover the costs of repair, etc. It will be the Insurer that attempts to recover the loss in the courts (not your neighbour), and their legal teams don't mess about.

I would advise that you give serious consideration to this matter before proceeding further. Post up some more info., if you have any, and we can try to advise you further.

Sorry to be the bearer of bad news.

Robert
Arbtech Consulting Ltd.
Tree and ecology consultancy
www.arbtech.co.uk

carpinus
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Post by carpinus » Tue Feb 13, 2007 3:17 pm

celt, do not be alarmed by Roberts advice, which though technically correct, may tempt you into premature action.
Cracks in a (70 year old?) garage floor are not a major issue. Domestic garages are not generally built to the same standard as houses.
If the neighbours or their insurers want to pursue the issue with you, then first they must prove beyond doubt that your trees are responsible.
The neighbours cannot insist that you cut down your trees. You should ask them for proof that your trees are responsible.

Kaz
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Post by Kaz » Wed Feb 14, 2007 7:10 am

Ask yourself...If the trees come down and kill someone, how will you feel then. Can't you accept that your area has changed and the height of these trees is unacceptable in a built up area.

obscured by clouds
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Post by obscured by clouds » Wed Feb 14, 2007 9:01 am

the question is'nt about height, it's about roots and possile shrinkage of a clay soil and subsequent subsidence. Tall trees are'nt neccessarily dangerous, just tall, and if the root to height ratios are right for the species and ground conditions then there is no reason to expect any tree to arbitarily fall over.

This sort of comment is frankly alarmist and should'nt be considered without all the facts.

carpinus
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Post by carpinus » Wed Feb 14, 2007 9:11 am

Kaz wrote:
If the trees come down and kill someone, how will you feel then
Of course, celt would feel dreadfully sorry for the unfortunate. But, there is no suggestion that these trees are unhealthy & they are after all, on a garden boundary & not against a busy pedestrian way or road.
As is discussed in another topic, the idea that healthy trees should be felled just because something untoward 'might happen', is clearly ridiculous.
celt may choose to have the trees inspected & consider action based on the professional advice received.

danensis
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Post by danensis » Fri Feb 16, 2007 1:01 pm

Arbtech is wrong on this. THe law is quite clear. If you build a house within the root span of existing trees than it is your responsibility to ensure the construction is such that it will stand up to dessication of the subsoil.

Treeman
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Post by Treeman » Fri Feb 16, 2007 1:15 pm

Hmmm

I am with Arbtech on this one.

Which particular statute/common are you referring to when you say “The law”

When they pick up on a situation (which isn’t all the time) building regulations specify deeper foundations but this is not law by a long chalk.

These properties date from the 1330’s so building control and British standards as we know them are moot.

Treeman

andrew54
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Post by andrew54 » Fri Feb 16, 2007 1:54 pm

Treeman wrote: These properties date from the 1330’s so building control and British standards as we know them are moot.
Oh I like the typo treeman :lol: :lol: :lol:

Building control in the fourteenth century :lol:

Treeman
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Post by Treeman » Fri Feb 16, 2007 6:11 pm

No it’s better than that. Look at the time it was posted. (13:15) Just a bit head of my time

Treeman

danensis
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Post by danensis » Fri Feb 16, 2007 8:37 pm

The law in this country is a mixture of statue and case law. Whenever a case has come to court where a property owner is complaining of tree root damage, the question has been "which was ther first, the tree or the building". and if the answer is "the tree" then the ruling has been that the builder of the property shouldn't have built there.

Treeman
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Post by Treeman » Fri Feb 16, 2007 11:08 pm

Thank you for the lesson on UK law. I was actually aware of those points.

Unfortunately the rest of your posting is not good enough to convince any court in this land.

Can you cite statute or president cases please?

Treeman

Whomping Willow
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Post by Whomping Willow » Sun Feb 18, 2007 12:50 pm

Arbtech wrote:If your neighbour can prove beyond reasonable doubt that your tree(s) have caused damage to their property, you are potentially liable for a claim for damages plus injunction (& costs) owing to your tree(s) being an actionable nuisance. If your neighbour has insurance, their underwriters will cover the costs of repair, etc. It will be the Insurer that attempts to recover the loss in the courts (not your neighbour), and their legal teams don't mess about.
This statement confuses two issues:

If the trees still stand and further damage is imminent, a judge may (and only may) grant an injunction for a tree or trees to be removed. This is not common, and may only work at certain times of the year ie immediately before a hot summer when the tree owner has had many months if not years to act, and there is plenty of evidence to show ongoing damage. The injunction route is the only way the courts can force you to remove the trees.

To get to that stage however a single letter from your neighbour will not be sufficient. Evidence is required - soil type (already answered) + its condition under the garage (soil moisture), presence of roots at the very least. Further evidence would be useful but is unlikely to be collected by an insurance company for just a garge.

The second issue is that of damages as a result of the trees. Was it foreseeable to you, as owner of the trees, that damage to your neighbours building was likely? Until now, probably not. Now you are aware of the problem the situation changes. You need to do something but that may not involve removing the trees. If there is space root pruning or a root barrier may be possible. If one tree is nearer than the others, removal of one tree may be an adequate first response.

Doing nothing may lead to a liability but only for what happens from the time of the first letter, not what happened before that. Distinguishing between the two is not easy!

The issue of the state of the building is something of an irrelevance, but clearly an old garage is not worth very much. Knowing the costs of tree surgeons to remove large poplars, you may find it cheaper to offer your neighbour a new instant garage than to pay tree surgeons to remove the trees! However piled foundations may be necessary, which will dramatically increase costs.

If an insurance company is involved the situation becomes more complex. I would talk to your neighbour and see if you can come to an amicable solution, having found out how much it will cost to remove the trees (or some of them)

Arbtech
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Post by Arbtech » Sun Feb 18, 2007 3:12 pm

Arbtech is wrong on this. The [sic] law is quite clear. If you build a house within the root span of existing trees than it is your responsibility to ensure the construction is such that it will stand up to dessication [sic] of the subsoil.
No, I'm not. I'm afraid you've been grossly misinformed.
The law in this country is a mixture of statue and case law. Whenever a case has come to court where a property owner is complaining of tree root damage, the question has been "which was ther [sic] first, the tree or the building". and if the answer is "the tree" then the ruling has been that the builder of the property shouldn't have built there.
I'd be interested to know which cases you're referring to, here. Also, how would you explain the ruling in Delaware v. City of Westminster (pertaining to a known nuisance not affecting a new owner’s right to claim for damages) and its implications on your statement?
This statement confuses two issues:
It made two points (below) and frankly, confuses nothing.

1. If your trees can be proved to cause damage to another property, you may wind up being liable for damages, and/or an injunction, and/or costs in a UK court.
2. Your neighbour won’t sue you, their Insurers will.
2. (a) Insurance company legal eagles don't mess about. Ever.

That's it. 100pc factually correct and neither an elaboration nor edit of my previous statement.
If the trees still stand and further damage is imminent, a judge may (and only may) grant an injunction for a tree or trees to be removed. This is not common, and may only work at certain times of the year ie [sic] immediately before a hot summer when the tree owner has had many months if not years to act, and there is plenty of evidence to show ongoing damage. The injunction route is the only way the courts can force you to remove the trees.


To get to that stage however a single letter from your neighbour will not be sufficient. Evidence is required - soil type (already answered) + its condition under the garage (soil moisture), presence of roots at the very least.
Agreed. However, that is not in any way in contrast to my original statement. You'll note the words 'if' and 'potentially'.
Further evidence would be useful but is unlikely to be collected by an insurance company for just a garge [sic].
Not in my experience. And that is, in any case, almost entirely dependent on the monetary value of the garage (and/or any replacement).

Robert
Arbtech Consulting Ltd.
Tree and ecology consultancy
www.arbtech.co.uk

Whomping Willow
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Post by Whomping Willow » Sun Feb 18, 2007 3:52 pm

Sorry it does confuse:

"May"......yes but improbable if the owner of the trees is a domestic householder with no professional knowledge of the relationship between trees and buildings, AND if that owner acts in a reasonable fashion....that is if they seek professional advice, communicate with insurers and move things along with reasonable haste. If they comply with the requested tree removal it is virtually unknown; if they do some tree work (ie the significant stuff) but not others they will probably be put on notice.

The vast majority of subsidence cases don't go anywhere near lawyers, and most that do involve local authority trees or other professional tree owners. So there is potential liability for which a tree owner should be aware...they can't bury their head in the sand and assume it will go away. But the potential liability for damages for most people acting reasonably and reading gardenlaw is negligible.

As for an injunction....can you tell me how many injunctions to remove trees causing subsidence you have personally seen? I would be surprised if there was more than a small handful per year in the UK (if that). It is not the preferred route of insurers and their lawyers and is most unlikely to happen.

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