** WARNING - Wall of text **
When people appropriate branches, whether by intention or by another's mistake. The legislation within the Theft Act 1968 is cited.
The basic definition of theft: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it;(Theft Act 1968: section 1.1)
For theft you need to determine if it has been acquired dishonestly and if there is the intention of permanently depriving the true owner of it.
A person cannot steal land, or things forming part of land and severed from it by him or by his directions unless the following applies:
When he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed;
(Theft Act 1968: section 4.2b)
The land in question will be where the the tree still stands and severed tree formation will be on neighbouring property, which means if it has been severed either by the owner of the land or the owner of the neighbouring property severed tree formation is 'property' that can be stolen and moved.
As you know the item can be stolen you will then have to ascertain whether the object has been dishonestly appropriated. A persons appropriation of property belonging to another is not to be regarded as dishonest if the following applies:
If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person (Theft Act 1968: section 2.1a)
Under common law you are allowed to sever overhanging branches to your boundary line. Therefore you have not dishonestly appropriated the severed tree formation, you have used a law to 'honestly' move it. For theft to be committed, it needs to be appropriated dishonestly. If you cut beyond your own boundary, the common law will not cover you and your actions could be deemed dishonest if the owner would have objected if they knew of the appropriation or the person whom the property belonged to cannot be discovered.
The act of severing a formation of the land will render you unable to return them to its original state (ie attach it back onto the formation) and the eventual death of the formation will cause permanent loss. So your intention will be to permanently deprive them of the living formation.
Next you need to work out ownership of severed formation.There are two scenarios:
Where a person receives property from or on account of another, and is under an obligation
to the other to retain and deal with that property or its proceeds in a
particular way (Theft Act 1968: section 5.3)
Where a person gets property by another’s mistake, and is under an obligation
to make restoration (Theft Act 1968: seciton 5.3)
In the sections 5.2 & 5.3 the method of appropriation is described followed by 'and is under an obligation' Due to the use of the conditional statement 'and' both appropriation and obligation will need to be correct and present.
If the other person has declared that there is no obligation to retain and deal with that property in a particular way, you cannot satisfy the whole of section 5.2 or 5.3 of the Theft Act 1968. However, section 5.1 of the act will become satisfied as follows:
Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). (Theft Act 1968: section 5.1)
This is where I thought you have the right as the owner of the property to remove any obligations that were in place, by informing the person who is in possession of the severed formation that they are no longer obliged. Once obligations are removed, possession by acquired consent will occur and ownership will become questionable. To find the 'belonging to another', full satisfaction of a statement declared in section 5.1 to 5.5 of the Theft Act 1968 will identify the owner.
If the other declares that there is obligation to make restoration and they wish to terminate possession. An intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. But to commit theft dishonest intention to take property on the part of the offender must occur as well.
Now this is where the law falls down, because the new owner could throw it back over (by mistake of course). The original owner appropriates the severed formation by mistake and you go through the whole cycle again. Maybe it could be a new version of volley ball for the Olympics.
The legal implications of throwing it over are littering (fly tipping if large amounts of waste), trespass to chattels, criminal damage to property, assault/battery if the formations strike or place a person in fear of contact with the formation. All of which you will probably need solid evidence for, the chances of the perpetrator owning up to it will be very slim.
I thought I would provide this link for my wonderful intellectual friend trollman (aka Treeman), I have found a link from the Keep Britain Tidy group for you with the definition of fly tipping. Page 3 - What is the difference between litter and fly-tipping, may be of interest. The guideline is a single sack of rubbish, which indicates it needs to be a fair decent amount of rubbish before it is fly-tipping. I doubt a single branch in a sack would meet the requirements. Don't worry about backing up what you say, I know you won't quantify any of your statements.
http://kb.keepbritaintidy.org/flytippin ... flylaw.pdf
It is also worth noting that if you are a victim of fly tipping on private land, the local authorities tend to do nothing to help clear it up. As it is on private land, it will be your responsiblity. This is from experience with my local authority.
I am struggling to find any information for litter on private land in the Clean Neighbourhoods and Environment act 2005, so as yet can't make any comments on litter/tipping.
My interpretation of the legislation it totally open to be ripped apart, these are just my thoughts.
Member of the Trollman fan club since 2011 - I'm right you're wrong, this is the law.