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Trees and the law

Overhanging trees

British Road Services Ltd. v. Slater and Another (1964), Estates Gazette, 30 May 1964

A branch of an old oak, which grew beside a public highway, projected about two feet over the roadway, at a height of approximately 16 feet. The plaintiff’s lorry was carrying a load of packing cases which reached to a height of 16ft 4in above ground level. When pulling into the side of the road to allow another lorry to pass, a packing case on the top of the load hit the projecting branch, fell into the road and caused another lorry to take such avoiding action that it left the road and was damaged.

It was held that the branch constituted a nuisance because it interfered with the use of the highway. However, the defendants were not liable for such nuisance because the occupier of land is not able to remedy a nuisance if he is not aware of it or with reasonable care, should have become aware of it. It could be presumed that the defendants had no such knowledge of the nuisance which could render them liable for failing to remedy it.


Damage by tree roots

Acrecrest Ltd. v. W. S. Hattrell & Partners and Another (1979), Estates Gazette, 15 December 1979

Cracks appeared in the structure of flats belonging to the plaintiff, who sued the architects and Harrow Borough Council for damages. Before the flats were built, a number of elms, poplars and fruit trees were growing on the site, which was on London clay. The removal of trees in the course of the building work had resulted in an accumulation of water which would otherwise have been absorbed by the trees. Furthermore, this water had caused the subsoil to swell or "heave", which produced cracks in the building. This is an unusual case, since the damage was held to have been caused by the removal of trees growing on the site.

Attfield v. Wilson (1949), Estates Gazette, June 1949

The defendant occupied his house and garden in October 1946. In November, the plaintiff pointed out to him cracks which had appeared in his concrete path and yard and suggested that these were caused by the roots of three poplars which were growing in the defendant’s garden near the boundary between the two properties. The defendant agreed to have the trees felled but no action was taken. In May 1947, the plaintiff showed the defendant a poplar shoot near his garage but no action was taken. During the summer, considerable damage occurred to the premises and since the plaintiff was unable to see the defendant, he wrote to the defendant’s father, who owned the property. The trees were then felled.

The defendant maintained that much of the damage occurred before he occupied the premises and further that the plaintiff had failed to take reasonable steps to mitigate his loss. However, it was held that the plaintiff could not have done much more than he did and judgment was given for the plaintiff.


Poisonous trees

Cheater v. Cater (1918), 1 K.B.247, C.A.

The plaintiff was the tenant of the defendant and a field which was occupied by the defendant was separated from a field which he had let to the plaintiff by a yew hedge. The hedge overhung the plaintiff’s land by about three feet and a horse which belonged to the plaintiff ate some of the yew hedge and consequently died. It was held that the defendant, who was the landlord, was not liable.

Crowhurst v. Amersham Burial Ground (1878), 4 Ex.D.5

The defendants planted a yew tree on their own land and about four feet from the boundary fence. In the course of time as the tree grew, some of the branches projected through and over the boundary fence. Parts of the tree consequently became accessible to the plaintiff’s horse, which was grazing in the adjoining field.

As a result of this, the horse died from yew poisoning and the plaintiff brought an action for damages. It was held that the defendants had allowed the tree to grow over the boundary and that they were consequently responsible. This follows the ruling given in Rylands and Fletcher (1863), 3 H.L.330, namely that if a person brings on to his or her land something which is dangerous or harmful and he allows it to escape, he will be held liable for any injury which may result.


Dangerous trees

Brown v. Harrison (1947), 177 L.T.281 and (1947) E.G.158

As the plaintiff was passing along a road, a horse chestnut which was standing some 18 feet from the highway fell on him. It was an old tree, the top branches of which were dead and although there was a high wind blowing at the time, it could not be considered exceptional.

The defendant was held to be responsible by the County Court and his subsequent appeal was dismissed, since the condition of the tree was such that it was evident that it was dangerous.

Bruce v. Caulfield (1918), 34 T.L.R.204, C.A.

The top of a poplar was blown onto the plaintiff’s stables during a very severe gale and caused considerable damage. The plaintiff claimed damages on the grounds of trespass, nuisance and negligence and was awarded them by the county court judge.

On appeal, however, it was held that there was no evidence of negligence, that the question of nuisance had no bearing on the case and that there was no evidence to show that the defendant had caused the tree to fall. The appeal was therefore allowed.


Tree Preservation Orders

Attorney General v. Melville Construction Co. Ltd (1968), The Times, 21 August 1968

This case dealt with the granting of an injunction, until the trial of the action or further order, restraining the defendant from cutting down or wilfully destroying any trees protected by a tree preservation order. The defendant was developing some land which was the subject of the order concerned and in the course of the work some trees had been damaged and two destroyed. Once a tree had been destroyed it could not be replaced and it would not be right that the defendant should be free to injure or fell trees during the time when it was being prosecuted for breach of the tree preservation order. An injunction was therefore granted.

Barnet London Borough Council v. Eastern Electricity Board and Others (1973), Estates Gazette, 21 April 1973

This was an appeal by the Borough of Barnet against an order made by the Highgate justices, who had dismissed information brought in by the council against the Eastern Electricity Board and its contractors. It arose over the re-laying of cables which were close to six horse chestnut trees, the subject of a tree preservation order. In carrying out the work, the roots were cut or damaged and it was alleged that the lives of the trees had been shortened and that they were unstable and possible dangerous. Subsequently four were felled by the council and two were lopped.

It was maintained by the appellants that the severing of the roots constituted "wilful destruction" of the trees, contrary to the tree preservation order. This view, which was opposed by the respondents, had been upheld by the magistrates who decided that the Board had not contravened the preservation order. However, the appeal court was of the opinion that a tree covered by such an order was destroyed when something was done to it which made it no longer an amenity or worth preserving. The case was sent back to the magistrates so that further evidence could be called.


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