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Stuart J
Stuart J, Solicitor
Category: UK Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Whilst I was away the landlord of the adjoining property arranged

Resolved Question:

Whilst I was away the landlord of the adjoining property arranged for a row of about six dwarf/ slow-growing conifers (about 8-9 feet high) to be uprooted and removed. The trees were on my side of the boundary and had been planted by the previous owners about 20 years ago. There was no consultation or communication - they were just gone when I got home (From my father's funeral - which made it even worse). I've contacted the landlord responsible - who says that she had thought the trees were hers. She never asked, or checked. I've taken photo's after the trees were uprooted, and it's obvious the trees were planted on my side - although of course there would be some growth outwards. My small garden looks like its been vandalised. What are my options please? Thank you
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Thank you for the question. It is my pleasure to help you with this today. Please bear with me if I ask for more information.

How many trees?
What value to replace with mature trees? Approximate is near enough
Customer: replied 1 year ago.

Six trees I think.


 


No idea of how much to replace with mature trees - Can't imagine they'd be less than £50 each though - plus planting.


 

Expert:  Stuart J replied 1 year ago.


This
might be a civil matter, however, there is a large criminal element here
(criminal damage) and I would go back to
the police and if necessary speak to a more senior officer and you still get no
joy, make a formal complaint. They should deal with this for you is a criminal
prosecution. From the facts that you have given me, I would not be taking this
lying down.

It
really comes down to how obvious the boundary is as to whether these trees are
clearly on your side, or whether there could be any issue over ownership.



If
they are clearly on your side, then this is obviously criminal damage and that
whoever took them out should be prosecuted and made to compensate you.



So,
having dealt with the police issue (I am not surprised that they are taking the
line of least resistance by just saying "oh, it is a civil matter." Because
they just wanted off their desk.



We now
then come to the civil issue and you are entitled to be compensated for the
loss of the trees and in that respect, it is how much it would cost to replace
the trees getting a contract in to do it with mature trees. You need to get an
estimate for that.



Assuming
that some is then under £10,000, you take the offender to the Small Claims Court
and Sue them in negligence. If it is indeed under £10,000, then even if you
lose, for any reason (I don't see how you can on these facts, but you never
know what lies the neighbour is going to come up with all whether there is a
boundary issue), then the losing party doesn't pay the winner's costs in any
event. However, by the same token, even if you win, you will not get any
solicitor's costs back and for that reason, I would think twice before
instructing solicitors to do anything other than write an initial letter.



Of the
initial letter does not have the desired effect, then you can issue small
claims court proceedings quite easily here www.moneyclaim.gov.uk



At
this stage, I will tell you that under the nuisance tree legislation you can be
made to cut trees down which are evergreen once they are higher than 2 m. This
is enforced by the local authority but the neighbour has to pay a fee of £300
to start the wheels in motion. Nonetheless, it does not give the right to the
neighbour to do what he has done.



Here
is some more information on nuisance trees, just to give you background with
regard to what the neighbour Karen and the neighbour cannot do:





A person cannot make an adjoining
property owner cut the trees per se but please see my later comments about
trespass and nuisance.



Consent is needed to trim
deciduous trees which are protected by a Tree Preservation Order and a licence
may be needed to fell trees which are not protected by a TPO.



Evergreens cannot usually have a
TPO.



Regarding evergreens, a complaint
can be made to the council and they will deal with them under the nuisance tree
legislation but only with regard to the height. They want £300 fee to start the process and if they
find that the trees are a nuisance, they can compel a tree owner to cut them
down to 2 m high.



With regard to branches and roots
growing boundary,(evergreen or deciduous) these are nuisance and trespass. The
overhanging pieces can be chopped off as can roots growing underground but they
do not belong to anyone other than the tree owner, so the pieces should be
given back although if they are unceremoniously dumped over their hedge without
warning, it is not good for already fraught neighbour relations.



The following are links will give
you some reading with regard to high hedges and nuisance trees. Don't worry
about where the sites are geographically because the rules apply nationwide.



 



http://www.richmond.gov.uk/home/environment/planning/high_hedges/high_hedges_frequently_asked_questions.htm



 



http://www.tameside.gov.uk/planning/highhedges





 



Does
that answer the question? Can I answer any specific points for you?

Customer: replied 1 year ago.

Thank you - those are clear points. I think the police don't want to get involved, for the reasons you say.


 


Just wanted to be clear though: Can the landlord argue that she THOUGHT the trees were hers - so was entitled to remove them? (So not responsible?) She cited some chicken-wire, which was about 10" high on my side of the trees, which I put into a gap to stop small dog running through. She said she thought that was fence - although there's a fixed trellis structure and up-ended paving slabs, which clearly show this is not the case. Certainly she never asked, or checked - as she hasn't visited the property for 2 years.

Expert:  Stuart J replied 1 year ago.
If this ends in court, the matter would be decided on the balance of probabilities, which means that the judge just has to think 1% in your favour (49: 51), and you win.
So if it is more likely the trellis is the boundary than the wiremesh is the boundary, then you win.
What I think helps you is the fact that this work was carried out when you were away because it would point to them not wanting to objections from you and it would point, in my opinion, to them being of that knowledge.
Would also help you is if the neighbours or landlord had ever complained about the trees in the past, or there had been any other issue with them.
However it is what is in the deeds which is relevant, not what the landlord/neighbour thinks is the boundary.
So, if the actual boundary is indeed the trellis and not the wire fence, then the landlord is still liable in negligence for not checking where the actual boundary was!
I assume that by looking at the deeds, or at the other boundary features, it would be obvious (ignoring the wiremesh and ignoring the trellis) where the boundary was.
More?
Customer: replied 1 year ago.

No, thank you very much... that's very helpful.


 


Oops Just realised I was supposed to press the 'Rate' button. Please send a cursory reply and I shall do so now.


 


 


Thanks again

Expert:  Stuart J replied 1 year ago.

I only do meaningful replies!Laughing

 

I am glad to help you. If you need any further advice on this, this thread does remain open, does not close.

 

If you need any advice of any further issues, please put my name at the top of the question thread as well as asking for me and the other experts will tell me that you are waiting. I do hope that you get this sorted.

 

Just check the price of having mature trees planted because you may get a shock with the cost.

 

Thank you.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20875
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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