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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9339
Experience:  I have been practising for 30 years.
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My Sister and I inherited the family home when our Father

Customer Question

My Sister and I inherited the family home when our Father died two years ago and we now let the property out. Next to the property is a Council owned verge some 20-foot-wide which is inhabited by two trees and several shrubs – however there is a large amount of Ivy which has encroached all over the walls of a garage which forms part of our properties boundary and has infested some fencing that has gone rotten as a result of the dampness caused by the ivy.
Recently the fence blew down in strong winds and the fence posts have snapped at the bottom where the ivy has invaded.
We complained to the Council seeking compensation – indeed the ivy has been growing out of control for 11 years and we do recall our Father calling the Council to complain but nothing was done.
However, the Councils replied with this
“In a gesture of good will I have contacted the grounds maintenance team in Christchurch and asked that when they are next in the area that they clear away the ivy growth from the land to make the replacement of the fence easier for you. However, this will not prevent further growth and the Council will not carry out any further maintenance going forward. They will continue to maintain the area as outlined above to ensure that they comply with their Statutory Duties.
I understand your disappointment at the outcome of this claim however; Councils are barred by statute from paying compensation where no legal liability exists. It would be inappropriate to deal with this matter by an ex-gratia payment as I am sure you will appreciate that this could give rise to further problems when dealing with other cases where liability is in dispute. I am therefore unable to re consider your claim for compensation.”
Is there any point in moving forward – the damage estimated to the garage and fence is around £1,000.
***** ***** TEL. 07427 919629 EM. Patricks***@******.***
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

What proof do you have that the Ivy caused the fence posts to snap and that they have not just gone rotten?

Is the tree from which the ivy grows right up against the fence?

You say that it has been growing out of control for 11 years, is there a reason why you didn’t cut it back yourself?

Customer: replied 1 year ago.
Only proof is that other fence panels of same age which have not been infested with Ivy are OK. The tree is around one foot from our fence. My Father would not encroach on the land as it would be trespass. That iss why he called the Council on several occasions. Opposite neighbor had the same problem and I can get a statement. My report to the council is comprehensive with photos etc.
Expert:  F E Smith replied 1 year ago.


The local authority are not in the habit of volunteering payment in circumstances like this. That is what they have said in their letter. However whilst they may not want to deal with the Ivy, they have a duty to do so if it grows from their land and it becomes a nuisance or trespasses. Just because they are the local authority, does not give them any immunity from that.

Your father could have cut any of the ivy off which went on to the fence but for some reason he didn’t do that. He is under a duty to mitigate his loss and he failed to do that. Hence, whilst the council are responsible for any damage caused by their failure to maintain the nuisance growth, they can argue that your father is partly to blame and hence, you should not recover the full cost of whatever the damage is. He did report it to the council would he did have the opportunity to remove the growth from his own side of the fence and he would be legally entitled to do that.

Under the Access to Neighbouring Land Act he would also be allowed to trespass onto the neighbouring land for any action required to preserve his own property.

As the council will not pay up you have no alternative but to take them to court to recover whatever this has cost you.

Whether you recover that or not will depend on the weight of evidence you have in support of your claim that if it were not for the Ivy, the fence would not have rotted. In that respect, you are going to need a letter from a fencing expert which confirms the posts have rotted and that they would not have rotted if it were not for the Ivy and that there are other posts with no Ivy which have not rotted. Without that evidence, your claim will fail.

It depends whether you want the trouble of going to court over this. The claim you say is for £1000 and therefore it would be Small Claims Court in any event. If you don’t want the trouble of going to court but still feel that the local authority are to blame, you can complain to the chief executive and if that doesn’t work, make a further complaint, to the Local Government Ombudsman. Complaints to the Woodsman are not dealt with quickly but at least they are cost and risk free.

Can I clarify anything for you?

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Best wishes


F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Sorry I pressed the telephone call option by mistake - please cancel and thanks for your advice.
Expert:  F E Smith replied 1 year ago.

No problem. I am glad to help