Neighbours tree to have roots severed by construction.

[rangitata]

My clients neighbour has a large Eucalyptus sp. ( DBH 650mm, Height 18-20m) just over the property boundary line. My client wants to build a retaining wall on his side of the boundary line which will involve lowering the grade below the tree by approx 1.5m to within approx 2.0m of the root flare. All surface roots on my clients side would be severed during construction.

My client is trying to obtain permisson from the neighbour to have the tree removed at my clients expense. My client intends to complete the retaining wall construction regardless.

questions are (mainly for aussie arborists but all answers appreciated).
1) Any overhanging lateral limbs can be pruned back to the boundary line legally. Does this also include the root system?
2) Does my client have any liabilty if the tree dies or/and fails after the roots are severed? And has this ever been tested in courts here in Australia or elsewhere?

My recommendation was to halt all works until permisson is obtained for complete tree removal.

Thoughts please.

Cheers Mike

 

[treeseer]

"1) Any overhanging lateral limbs can be pruned back to the boundary line legally."

And this is according to what legal reference? In the US we own the earth below and the sky above our land, but NOT unconditionally. If our actions can damage our neighbor's property and threaten their lives, then we are bound legally and morally not to do those actions.


2) Does my client have any liabilty if the tree dies or/and fails after the roots are severed?"

Obviously.

'And has this ever been tested in courts here in Australia or elsewhere?"

Liability demonstrated in US many times. Any prudent person knows your client is threatening his neighbor's life and property. Landowner is entitled to reasonable use of land but is the wall as presently planned reasonable? Are there other ways your client can enjoy the use of his land without undermining this tree?

'My recommendation was to halt all works until permisson is obtained for complete tree removal." Smart to halt killing this tree.

'Thoughts please." Confer with your client to look at alternate plans. O, and refer him to some moral counseling, where he will learn the golden rule. How would he like it if his neighbor tried to do that to him?

Let's see if Ekka's tutors are of any use here.

 

[Ekka]

questions are (mainly for aussie arborists but all answers appreciated).
1) Any overhanging lateral limbs can be pruned back to the boundary line legally. Does this also include the root system?
2) Does my client have any liabilty if the tree dies or/and fails after the roots are severed? And has this ever been tested in courts here in Australia or elsewhere?

Both limbs and roots tresspassing a property boundary line may be cut back to that boundary line, the parts removed are not to be dumped or thrown back over the fence unless if that's what the owner wants.

Your client does have liability for the remaining tree. If it can be proved, which in this case wouldn't be hard, that the work undertaken caused a hazard or killed the tree then it would be legally persuable. We are all bound to laws greater than that of a local council, such as duty of care, malicious damage, nuisance laws.

These cases are not common knowledge or publicised. There is a current case at Wynnum where a council tree failed and damaged a house. The householders insurance and the BCC are in court now fighting it out, it appears that council will lose as the tree was identified and reported as a risk yet no action was taken.

I've heard cases in USA mentioned where the fence line pruning of trees has left the tree deformed looking, the owners placed a value on the tree, a lesser value on the sale price of their home and sued for damages.

I'm not a lawyer but I would suggest your client engage one prior to the works, if the removal of roots etc is on the windward side of the tree it would be a higher risk of blow down.

If as a consulting arborist I reported the death or blow down as consequential damage from in-appropriate tree work, especially if it was outside of normal standards then yes, your client would be liable.

 

[treeseer]

Both limbs and roots tresspassing a property boundary line may be cut back to that boundary line, the parts removed are not to be dumped or thrown back over the fence unless if that's what the owner wants.

So Australian case law allow you to kill your neighbor's tree, but prevents you from dumping the dead parts on their land? How very considerate! :angel:
Ekka, if there are laws regarding duty of care and malicious damage, how can you still say everything can be cut back to the line no matter what?

I would research the case law myself as an arborist first, before referring to an attorney. Not to give legal advice of course, merely to do some of the legwork. Attorneys may know less about this than you do.

 

[Ekka]

Believe me, there's plenty of lawyers who know and it's precidential law so hard to research if your not in the loop.

This very contradictive situation was brought up in front of lawyers, yes you can remove roots and limbs back to the fence line but it better not kill the tree or cause a hazard as you may be liable.

It's a civil case, no authorities are going to get involved, there's going to be opinions etc sure ... but believe me, as an arborist with some severe fence line quotes on trees I know wont take it ... walk away.

I once had a guy who wanted a back to fence-line on a Norfolk pine, the trunk of the pine was against the fence, customer said he didn't care what the neighbour thought and wanted the sun back in his yard. The tree was atleast 100' and about 3'dbh .... I walked away.

I have a current quote where if we go back to fence line we will be cutting a gum, about the size mentioned here, right in half. The trunk is about 1' away from the fence-line. I approached the owner, gave a quote for removal, provided a $ amount that the neib would be paying as half the tree was over her yard and walked away. It's up to the 2 neighbours to sort it out not me. That was a month ago and they're still arguing .... fence line work is always the pits.

 

[treeseer]

Believe me, there's plenty of lawyers who know and it's precidential law so hard to research if your not in the loop.

Ekka, it sounds like law over there is similar to law over here. Precedents are public record and can be researched by anyone. All it takes to get into that loop is to find the way in.

What do the folks at your tree school think about boundary tree issues?

 

[Ekka]

What do the folks at your tree school think about boundary tree issues?

Get consent and consensus from both parties to perform arborculturally sound practices. Work to Australian standards of pruning AS4373 and ensure that no work under taken will lead to increased risk or hazards. So, no cutting off half the roots etc, it's advised you walk away if that's the case.

As educated professional you now have the knowledge of what you are doing and the repercussions of such actions. Ignorance is no longer an excuse, not that it was in the prior instance however now you know. Do not jeopardize your career or the goodwill of your name by performing tree malpractice for financial gain, you may be liable and professional organizations of which you are a member may dis-own you.

Take the opportunity of public interactions to enlighten their knowledge of tree care, advise people of correct practices and be a professional.

I've walked away from quite a few "crazy" customers, have a look at these pics, who would want their name on this abomination?

 

[Kneejerk Bombas]

You could offer the neighbor a couple thousand dollars (or whatever it takes) to allow you to remove the tree at your clients expense. That way both parties are happy.
I really like my trees, but if a neighbor wanted one gone, enough to pay for the removal and compensate me for its' value, then I would allow him to do so, if for no other reason than to keep good relations with a neighbor.

 

[MasterBlaster]

Yah, but you're Mr. Nice Guy.

 

[Kneejerk Bombas]

If the neighbor is too hostile to allow the removal, how do you think he'll be when Mike kills his tree?

 

[ROLLACOSTA]

Both limbs and roots tresspassing a property boundary line may be cut back to that boundary line, the parts removed are not to be dumped or thrown back over the fence unless if that's what the owner wants.

Your client does have liability for the remaining tree. If it can be proved, which in this case wouldn't be hard,

This is the same for the uk ,you can cut the tree back as you wish ,but if you cause it to die or fail then the person responsible for the work is liable..

 

[rangitata]

Firstly I have not and will not perform or condone such works. As Ekka also stated i have worked away from many such client requests.
Even though the moral and ethical soapboxing from other users is amusing I was after Legal advice not Ethical B/S.

I was highlighting a question that is unfortuantly posed to me on a regular baisis. As Ekka also stated i am also not a lawyer and as Australia is heading down the road to litigation (the lawyers here also need to earn a living )

The Australian Standards are very vague on the subject and no one seems to be able to provide or are unwilling to provide the correct legal advice.

Ekka, I had heard of that case you talk about down there in Wynnum, do you know of any specific details? species, size, time frame and what was involved?

I only want to be able to give my clients the correct advice about the legal ramifications of their actions.

Cheers MIke

 

[treeseer]

The Australian Standards are very vague on the subject and no one seems to be able to provide or are unwilling to provide the correct legal advice.

The US standards are not firm; case law varies widely. Cases/settlements here largely hinge on the ability of the consultant/lawyer and the strength of their case and the opinion/sentiments of the judge/mediator. I won't say it's a crapshoot but it is hard to predict.

Re soapbox I was born on one I think, so sorry about that. Ekka I cannot agree with walking away until means of influence such as neighbors' associations, town regs, peer group pressure are exhausted, but that's that soapbox thing again.

Case in point; in a big city an industrial property is being converted to townhomes. Developer wants to mow down all the mature forest the law will allow. City staff not motivated to influence, so we did an inventory of one stand, complete with calculations of benefits to air water wildlife etc, and submitted the report to town council members who will vote on the rezoning.

We hope they will add extra conservation as a condition of rezoning; this has worked in other places. I don't hunt or fish so it's a hobby when it doesn't pay...

If your client cannot see the problem with causing your neighbor's tree to fall in his direction, you're right that ethical "bs" is not of use here; they need a brain transplant. :Monkey: I'm just glad your client sob isn ot my neighbor; we'd have problems I fear. Mike's solution may be best--tell him to buy the tree!

 

[Ekka]

Wow Mr Treeseer, that was surman with fire and brimstone.

Hey Rangitata

Tonight we had a consultant dude come in to college and I asked her the same question ... guess what, got the same answer I've given you.

OH&S law prohibts you from raising the risk when attempting to lessen a hazard ... imagine this, your tripping on roots so you get out the stump grinder and grind them all down, and to make sure it doesn't happen again you get a water cutter in and cut the roots off at the fence line and put in root barrier ....

... so you have removed the risdk of tripping etc but you have increased the hazard be destabilizing the tree. So you've made things worse.

Also, the owner of the tree can seek financial reimburstment for the value of the tree, removal, replanting etc. It's and ugly mine field.

The consultants answer in a nut shell on chronic cases like you have mentioned is walk away. It is for the neighbours to reach agreement.

Don't know about you but I'm not here to fight other peoples crap, I have a business to run and part of it is knowing when to get on with the next quote or job.

 

[rangitata]

Re neighbours trees and strange requests

The whole point of this thread was to find out examples similar to the one explained and the resulting court rulings, so that the correct advice could be given to clients.

" Mrs Jones if what you propose is done to the neighbours tree this could happen ( insert example of court case here )"...."So you still want to have that done?"..."In that case my company is unable to help you, Have a nice day, Goodbye"

I have heard of a few cases were local governments and residents (a costly and frustrating process in which the lawyers seem to be the only ones smiling ) have battled it out in court over tree issuses (private resident vs private resident ?) but the details and results all seem to become blured or hidden.

Heres another situation which i encountered last week whilst visting clients.
Elderly lady has huge fig in rear yard (DBH 3500mm at least, 30m canopy spread) that had recently and quickly browned off and lost most of its leaves) Lady was convinced it was a lighting strike. I was suspicous because of the lack of storm activity recently. A quick look over the 2.0m rear fence showed a severe attack from 10mm Bosch Borers with green slimey frass present in all the surface roots (approx 50 holes). When told that her tree had been poisoned she responed that she wanted to cut back her side and leave the the rest to fall onto her neighbours

I left her a quotation for the complete removal of the tree.

Before you ask Ekka there was no N.A.L.L on the tree or property.

 

[Ekka]

The problem is it's a civil case and when it comes down to it people don't follow through.

Even if there's evidence of malice such as drilling holes and poisoning there is no absolute proof so the police etc don't get involved.

Rangitata, sounds to me you are getting frustrated with other peoples problems ... part of being professional is knowing the difference between right and wrong with trees, so I don't get as affected as you and neither do the people I know ... we walk away.

If a customer was adamant they wanted their 100' gum tree lopped to 30' high, there is no protection orders, would you do it?

Well this is the same thing, and it's not my job to police the public, it's only my job to do a good job. If Mrs Jones is adamant to go ahead with her excavation ... as long as it's not you doing the work, who cares. The owner of the tree knows what to do, it's their job to litigate not yours. If you get called in as a qualified consultant to evaluate you are doing your job fees based.

There's no tree police out there.

 

[rangitata]

Ekka, Its not a matter of me getting frustrated " really i don't give a ???? if they pay someone esle to destroy their property" its a matter of giving people the correct answers to the questions they ask.

In regards to the fig I have no idea what the lady eventually got done (must remember to drive past) but without a doubt someone would have done what see wanted just to get paid.

 

[Kneejerk Bombas]

Firstly I have not and will not perform or condone such works. As Ekka also stated i have worked away from many such client requests.
Even though the moral and ethical soapboxing from other users is amusing I was after Legal advice not Ethical B/S.

You've answered your own question, simply state. "I have not and will not perform or condone such work."

I only want to be able to give my clients the correct advice about the legal ramifications of their actions.

Cheers MIke

You should not give legal advice! You are not a lawyer!
Opinions can be given on what you feel is ethical, but don't present them as legal advice. Then it won't be BS!
Arborists giving legal advice is BS!

Live your life by what you feel is ethical, let lawyers hash out the legal, and everything will be fine.

 

[richie rich]

Arborists giving legal advice is BS! Live your life by what you feel is ethical, let lawyers hash out the legal, and everything will be fine.

It'd be nice if this were true but it is not. If arborists refer clients to statutes and case law, that is not providing legal advice. It is passing on information that is available to the public. For an arborist to refuse sharing information and instead saying "talk to a lawyer" is not serving the client.

 

[Treeman14]

Exactly. Instead of relying on heresay and what he said, she said, do some research and look up the case law relating to these issues. If you deal with these questions on a regular basis, as you stated, you should be familiar with the precedents already.

For example, in Florida, one such case is Gallo v. Heller. In a nutshell, you may cut encroaching limbs or roots, but there are some things you must also do to prevent repurcussions. Inform the neighbor of the problem and your intended solution. Avoid trespassing. Do not cause irreparable harm to the tree or damage to his property. And be civil. (Read be nice)