Neighbours tree & my car !x! a legal question

Wig

markelock wrote: »

assuming you park on your land, and the tree sap comes from the landlords land onto your car, I'd say it's his responsibility to look after it. law of tort, see rylands v fletcher maybe?

Rylands v Fletcher was a non-natural use of the land. Tree sap and honey-dew(aphids) are considered to be natural, as are leaves, seeds and falling small branches.
http://www.aie.org.uk/resources/case_law/aie_case_lime.html

It could be different if there was a car parking area close to the boundary, and the neighbour subsequently deliberately brought in an planted a tree likely to cause honey-dew or sap - close to the boundary/car park area.

cyclonebri1

Wig wrote: »

The tree is an evergreen. Doesn't that suggest conifer? In which case it might be sap.

It does, but laurel, and many other non-conifer evergreens do exist. Whether it's expoling sap mites or whatever the issue comes from the tree.

Ring barking as mentioned in my earlier post always works, bit like cutting the trees jugular.:eek: . Absent landlord =:T

markelock

although the case quoted dealt with a tree that had a preservation order.

surely the owner of a tree that causes damage is liable, even if it's through his insurance?

Mojisola

ozvaldinho wrote: »

It's not actually tree sap causing the problem, it's exploding aphids. I don't know the exact technical details, but apparently certain trees attract or host billions of certain aphids at this time of year. These aphids gorge themselves on tree sap and a proportion of them explode after over-indulging, this 'sap' is actually aphid guts.

I don't think the aphids explode - it's just natural processes. They suck the tree sap, use some of the nutrients and the rest makes its way out the other end. It's called honeydew which is a rather nice name for what it actually is!

If this is a problem that goes on right through the winter, it's unlikely to be honeydew. Aphids don't usually cause problems even in our recent milder winters.

vaio

markelock wrote: »

although the case quoted dealt with a tree that had a preservation order

surely the owner of a tree that causes damage is liable, even if it's through his insurance?

and more importantly the tree was owned by the people that wanted to cut it down so the case was essentially about ways of getting round the TPO.

In the OPs case I’d say that R&F or similar does apply in that the tree has been brought onto the land and is causing damage on the neighbours land.

martindow

vaio wrote: »

In the OPs case I’d say that R&F or similar does apply in that the tree has been brought onto the land and is causing damage on the neighbours land.

From the wikipedia article on this case

"Rylands appealed to the House of Lords which dismissed the appeal and agreed with the determination for Fletcher, in 1868 (L.R. 3 H.L. 330). Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate."

The tree sap or aphids are not non- natural, unusual or inappropriate so I don't think it would apply. In addition nothing has been introduced onto neighbouring land as presumably the tree was in place when the OP moved in.

I'm not a lawyer but it makes interesting reading!

vaio

martindow wrote: »

From the wikipedia article on this case

"Rylands appealed to the House of Lords which dismissed the appeal and agreed with the determination for Fletcher, in 1868 (L.R. 3 H.L. 330). Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate."

The tree sap or aphids are not non- natural, unusual or inappropriate so I don't think it would apply. In addition nothing has been introduced onto neighbouring land as presumably the tree was in place when the OP moved in.

I'm not a lawyer but it makes interesting reading!

Yep, it’s fascinating

I think the “natural state” has been further defined as “rocks and thistles” i.e. things that are just there naturally. If you bring something on to your land which escapes and does damage then R&F liability applies no matter how careful you have been and it’s strict liability so the damage or escape can be completely unforeseeable

If there is a stream then that’s natural, if there is a stream and you divert it or dam it and it floods and causes damage then you are liable.

If this tree has always been there and grew wild like from a wind blown seed then it could possibly be argued that it was natural. If the tree was planted or cultivated in any way then it is not natural and R&F applies.

Wig

I think the TPO is not relevant in the decesion process. What the judge would have been considering was whether there was a nuisance. It is reported the council found there to be no nuisance - the judge agreed. Without further information this could mean two things

1. The council determined that there was no fungus or that if there was fungus the honey dew was not held to be its cause.


2. That the honey dew being natural, could not be classed as a nuisance because it is natural.


IMHO both could be the reason why the case failed but I actually suspect it was the first one.

Tree debris is a natural process, and the damage caused can be said to be minimal or non existant.

The excerpt below is from Cheshire council, it would seem that the OP will have to attempt to make new case law. The OP should write to the landlord so he is at least informed of the nuisance, so that he cannot claim to have had no knowledge. OP could also threaten legal action, and maybe bluff the landlord into submission, perhaps OP and the tenant could agree to split the cost of tree removal and offer to pay for it to be done. Landlords generally refuse to do things to save money rather than for emotional reasons.

In considering any case a judge would have to consider that a ruling in the OPs favour would leave councils across the country liable for millions of motorists claims for car cleaning. It just would never happen.

General Nuisance from Leaf-fall, Fruiting Bodies, Sap, Bird Fouling and Pollen
Being living, growing organisms some trees have certain characteristics that are not always compatible with the expectations of some residents. In particular, the Council does receive sporadic complaints on tree related problems such as leaf-fall, fruiting bodies, sap and bird fouling.
Most of these phenomena are natural and seasonal processes and there is little the Council can, or indeed would wish to do to alleviate them. The Council does not accept liability for damage as a result of such natural deposits from trees and there is no decided case law holding that these phenomena are a legal nuisance.

Debt_Free_Chick

Wig wrote: »

I think the TPO is not relevant in the decesion process. What the judge would have been considering was whether there was a nuisance.

I'm inclined to agree with my learned friend

TPOs do not mean that a protected tree can never be cut down - just that the circumstances that lead to its removal are carefully controlled and need the agreement of the Tree Officer at the Local Authority.