Back fence being damaged by tree branches growing into/through it from Parkland Walk

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Permalink Reply by 1vut8bf3om5m9 on April 25, 2017 at 8:29

I sent a legal analysis regarding encroaching trees to my neighbour. I am not sure if it also applies to a public entity although I think it would because it's about your property not theirs. If you message me I can send it to you or even just reprint it here if you like.  The one thing to keep in mind is that tree preservation order scenario although it's not likely.

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Permalink Reply by Michael Anderson on April 25, 2017 at 9:20

Good tip from Knavel about tree preservation orders. You can ask Haringey if the tree or trees in question have TPOs by using the general enquiry form
https://eforms.secure.haringey.gov.uk/ufs/ufsmain?formid=CST_BCF&am...
I imagine your main problem though is going to be about the ownership of the land the trees are growing on. Anyone have any idea who the owner of Parkland Walk is? Railtrack (as it's a defunct railway line)? If any of the trees are covered by a TPO the order had to be served on the owner of the land so fingers crossed.

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Permalink Reply by 1vut8bf3om5m9 on April 25, 2017 at 9:51

As a public service, here is the legal analysis. Note in particular the section on Abatement. The Consultation aspect is the part that is being ridiculed here because it's the Council (although it could be that the landowner is different, but I can't imagine who else as the railroad is defunct.)  There are links below but it's into a paywall sorry.

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Background

Roots and branches of a tree on land A may cause private nuisance to the owner of land B if they:

• Cause physical damage to land B or to buildings or vegetation on that land; or
• Interfere unreasonably with the owner of land B's enjoyment of its land.
• Thompson-Schab v Costaki [1956] 1 WLR 335.

• Duty between neighbours

  The cases establish that the duty of the tree owner (A) is to do what is reasonable in all the circumstances to prevent or minimise the risk of interference with or damage to the property of his neighbour (B) where:
  • A knew of the encroachment of the tree roots or branches, or ought to have been aware of their encroachment; and
  • There was a reasonably foreseeable risk of damage to B's property or enjoyment of it, as a result of such encroachment.
  Delaware Mansions v Westminster City Council [2001] UKHL 55; Goldman v Hargrave 1967 1AC 645 at pp 663; Solloway v Hampshire County Council [1981] 79 LGR 449.
  A can be held liable for the nuisance caused by it to B's land or property, even if this occurred before A bought his land. An owner or an occupier of land "continues"' a nuisance if, with knowledge or presumed knowledge of its existence, the owner or occupier fails to take reasonable means to bring it to an end having had reasonable time to do so (Sedleigh-Denfield v O'Callaghan [1940] AC 880).

• Tree branches

  Overhanging branches can lead to claims by the owner of the neighbouring property for nuisance or negligence if:
  • They cause physical damage to structures on that adjoining property.
  • They fall off and cause physical damage or personal injury.
  The same principles apply as for tree roots to determine whether the tree owner is under a duty to do something about overhanging branches in order to avoid such damage.
  In addition to nuisance or negligence claims, overhanging branches may lead to claims for:
  • Trespass (into the neighbouring owner's airspace).
  • Obstruction of the neighbour's right of light to windows in his building.
  • Health and safety issues if they overhang highways, footpaths or railways.
  In practice, it may be easier and quicker for the neighbouring owner to abate the nuisance by lopping the branches (see Abatement).

Damages

The damages available to the claimant will generally be the reasonable cost of the work required to return the property to its state of repair before the damage occurred. This will include (where it is reasonable to do such work) the cost of stabilising the foundations of the property.

Abatement

This is, in effect, self help. It is the right of the owner of the neighbouring land to cut back the encroaching roots or branches back to the boundary between its property and the land on which the tree stands. the neighbouring owner does not need consent from the tree owner before exercising the right of abatement (though it may be prudent to seek this).

Abatement is more often referred to in the context of overhanging branches (Lemmon v Webb [1862] AC 1 HL), but is also available to cut back encroaching roots (McCombe v Read [1955] 2QB 429).

The right of abatement is subject to some limitations:

• The cutting back must not be so severe that it makes the tree unstable or causes it to die. This means that, except where the work is minor, it may be prudent for the neighbouring owner to seek professional advice from an arboriculturist first, on the best alternatives. There are guidelines for carrying out work to mature trees: British Standard BS 3998, Tree Work – Recommendations.
• The branches (and in theory, the roots) which are cut off must be returned to the tree owner to avoid claims of conversion or theft.

• Consultation with the tree owner

  To avoid any ill feeling or potential claims, it is prudent for a landowner who wants to exercise the remedy of abatement to consider obtaining agreement from the tree owner, or at least informing the tree owner what is planned. Such an agreement might cover whether the tree owner requires the return of the severed branches, and who is to pay the costs of any tree contractor employed to do the work. Whilst simply doing the work and leaving the severed branches on the tree owner's land will satisfy the legal obligations, it may well upset neighbourly relations, particularly if the neighbouring owner is unaware of the right to abate a nuisance.
  
  

  Checklist before pruning off overhanging branches

  • Check that there are no nesting birds to avoid impact to nesting birds and infringement of the Wildlife and Countryside Act 1981 and breaching the Birds Directive (2009/147/EC).
    The Royal Society of the Protection of Birds recommends that tree cutting is avoided between March and August as this is the main breeding season for nesting birds.
  • Check that the tree is not protected by a tree preservation order. If it is, then the work of abatement must either be authorised by the local authority Tree Officer, or fall within the parameters that are permitted by the TPO or the legislation.
  • Take care not to cut the roots or branches back beyond the landowner's boundary.

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Permalink Reply by AndrewAW1 on April 25, 2017 at 10:16

You could try contacting the Friends of Parkland Walk https://www.parkland-walk.org.uk/

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Permalink Reply by Chris Setz on April 28, 2017 at 11:39

The Council's Tree Service is responsible for all our 'public' trees. Most of the Parkland Walk is in a conservation area as shown on the Council's map of Conservation areas in Haringey. All public and private conservation area trees have Tree Protection Orders on them automatically. 

I'm pretty sure the land is now owned by the Council.

Reporting the issue should always get a response.  The 'http://www.haringey.gov.uk/contact/report-it section of their website has a menu - one item is 'tree obstruction', which leads to:

---------------- extract from website --------------------------

To report a problem or dangerous tree, you need to register or log in to My Account and then select ‘Add a Report’, then select the correct category from the drop down menu.

Report a problem with a tree through My Account

What happens once I have submitted the report?

We will inspect the problem within 10 working days.

How long should it take?

Once we have inspected the problem, we will let you know what action we will take. If work is needed on the tree, we will instruct our contractor. It could take up to 8 weeks to complete depending on the nature and urgency of the work needed.

How will I be kept up to date?

We will contact you by email to let you know the result of the inspection and again when the repair has been completed.

---------------extract ends -----------------------

I've done quite a bit of tree reporting on behalf of others (Haringey Tree Wardens) and they always get back to me, usually with a resolution and quite quickly. Although I'm a frequent critic of the Council on other matters, I take my hat off to the Aboriculturalists in our Tree Service - they know their onions.

Worth knowing if you get less-than-excellent service from them so we can put pressure on them to do what they're paid by us to do.

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