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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71155
Experience:  Over 5 years in practice
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My neighbour has a 75 year old willow tree in his front garden,close

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My neighbour has a 75 year old willow tree in his front garden,close to the dividing boundary fence, just 8metres from our property. We purchased the property last July, but now we have found root structure from this tree, at the furthest point from the tree against the front elevation.
He pollards the tree every 3 years, and was deeply offended when I approached him to ask if he was prepared to have this tree removed.
This tree has no PO attached to it, and I await advice from my borough council.
I have clearly offended my neighbour with my approach to him, and fear that it could get a lot worse, if I peruse this matter further.
If I can decide to let let him keep the tree, can I put him on legal notice, that I would hold him totally responsible for any costs for damage caused by the tree, either above or below ground.
Your sincerely,
Derek Cowell.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Have the roots caused any damage already?
Customer: replied 3 years ago.
The roots have not yet caused any noticeable damage .
Thank you.

There is no reason why you cannot give the neighbour noticed that if the roots cause any damage or falling branches cause any other damage then he is responsible. However he is responsible in any event in common law negligence although as you are now aware of where the roots are you are under a duty to mitigate your loss and that could involve cutting them off where they approach the property.

I will say however that for the damage to be actionable in negligence, it must be reasonably foreseeable. It must be something which could reasonably have been prevented. Therefore if there was a hurricane which uprooted the tree, and the damage was of such magnitude that it could not possibly have been foreseen or prevented by trimming the tree, can escape the claim for negligence, however that is unlikely to apply to the encroachment of the routes.

Even though there is no preservation order on the tree depending on the size of it, it may not be possible to cut it down without a licence. It depends on the volume of wood in the tree and it would be necessary to contact the local authority to see whether a felling licence is required or not although any competent tree surgeon would be able to advise.

Can I clarify anything for you
Customer: replied 3 years ago.
High Jo,
Thank you for this, very helpfully. Can you clarify the Duty I have now that I have discovered the Roots. These were locally cut. Are you saying that I now have a duty to dig my garden up to remove the roots totally first. I removed from the area I was working in, which was in front of the garage, putting a soak away in place. I need. to. be. sure what. my. duty. Is.

The duty is not to go digging am looking for the roots but if you discover them, to make sure that they do not cause damage.
It is only what you are aware of that you are under a duty to deal with although if there is a cost involved in doing that, you can seek that cost from the neighbour.
What you are not supposed to do is set by idly and watched the roots destroying the property. I am obviously exaggerating to prove the point.
By removing them from the area that you were working in you have done as much as would be necessary
Customer: replied 3 years ago.
Money well spent for the great and now clear advice you have given me.
Very pleased with the service, it could not have been better.
Many thanks you have been just great.
You certainly will get the best smiling face there is.
Best regard s to you,
No problem and all the best.

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