Seeckts v Derwent, £350,000 costs | Changes to the Small Claims Court (2000) | Small Claims Court Complications (Feb 2002) | Westminster Council Held Responsible for Tree Root Damage.Jan 2002 | Update on potential damage to buildings | Letter of Notice for Sending to a Grower | Privet, 90 feet by 25 | Couple jailed for defying injunction not to cut Aug 02
Summary of Cases on Record year 2000
Mainstream Court Cases and Allied Matters | Some Members' Successes in the Small Claims Court | Cases Involving Violence
Definition of a Hedge (in Case law)
I am only able, at present, to add those which in some way move forward or clarify the Law or which cause a great deal of interest and provoke many enquiries.
Paul Derwent, a construction project manager and his wife, Janet, both in their late fifties, cut down a laurel boundary hedge in Groombridge, East Sussex. They were landed with a £350 000 costs bill after losing their appeal. They will have to sell their £600 000 home to pay the costs of a three year legal battle.
I am receiving the impression that there was a boundary dispute centering on the ownership of the hedge.
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Mr and Mrs Girling of Whitton, Norwich, have been jailed for one month because they broke an injunction not to cut a hedge.
It is reported in several newspapers that the hedge was on Mr Girling's side of the fence but the position of the boundary, and hence the ownership of the hedge, was disputed. The injunction, which was placed by Mr and Mrs Girling's neighbours, remains until the ownership of the hedge has been established.
This seems to be a complex neighbour dispute with many serious issues involved which are not directly concerned with the hedge and neither of the neighbouring households seem to be hedge-victims in the usually accepted sense.
A long established and active Hedgeline member has reported that he won his case in the Small Claims Court. The case was for claiming back the expense of the cutting back of branches to the boundary.
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We have just had a report from the Dudley Area of the West Midlands. A member is suffering from 90 feet of privet hedge, The hedge is 25 feet high. The hedge owner will not negotiate, has thrown back trimmings returned to her side, and has approached the council to put an order on our member preventing her from trimming off the overhang which grows over her drive.
The privet would have to be trimmed 3 times year to have any hope of keeping it reasonably clear of the drive.
There is root damage to the drive and an obvious application for the Delamere mansions letter of notice and for the Small Claims Court.
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This will not be directly covered in the new legislation. In most cases it will be possible to find another reason to invoke the High Hedges Law and get the cause of the trouble satisfactorily reduced. Where hedges are very near property it may not be possible to use the High Hedges Law to get them reduced sufficiently. You may therefore wish to let your insurance company know of your nuisance hedge problem. All subsidence sufferers should be sure to contact their Insurance Companies and the Subsidence Claims Advisory Bureau, 01424 733727.
We can supply a letter of notice to paid-up members to give to neighbours where there is likely to be root damage. A recent high court ruling has determined that damage by roots will be entirely the responsibility of the tree owner where sufficient notice of possible damage has been given.
Westminster Council Successfully Sued for Root Damage.
You may have read about the Million Pound Tree in the National press, which was delighted to report that Westminster City Council would have to pay nearly one million pounds in costs to the owners of a building, the foundations of which had been damaged by the roots of a single plane tree owned by the council. Westminster appealed against this ruling to the House of Lords, and Hedgeline is delighted to report that it lost the appeal to the highest court in the land. The House of Lords has now published its findings in a brilliant ruling, of immense interest and benefit to hedge victims.
The case is that of Delaware Mansions Ltd v. Lord Mayor & Citizens of Westminster. The ruling was announced on 25th October, 2001, and its reference is UKHL 55. The unanimous opinion of the Law Lords is succinctly set out, and summarises the major case law relating to damage to property, particularly foundations, caused by tree roots belonging to trees on a neighbouring property.
This is exactly the sort of case law which most solicitors know nothing about, and consequently mutter that any action concerning roots is very complicated, and very obscure and thus very expensive. Did you know for instance, that the case of Lemmon v. Webb (1894) ruled that a neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided he could do so without entering the owners land. And that a similar right of abatement by cutting applied to encroaching roots? Well, now you do.
A letter of notice for presenting to your neighbour is available to paid-up Hedgeline members. See end of this write-up.
The present case took ten years to resolve. Basically, the owners of Delaware Mansions (flats in Maida Vale) noticed in 1989 that cracks were appearing in one block; a survey indicated that this was because the roots of one big plane tree on the pavement outside the flats had taken so much moisture out of the ground that the foundations were dropping; the tree owners, Westminster, were informed in August, 1990, but did nothing until January, 1991, when it agreed to dig a one metre deep trench between the tree and the flats, to inhibit root growth; this work was not carried out until October, 1991; Westminster at no stage accepted that the structural damage to the flats was caused by the roots of their tree. Underpinning of the foundations became essential, and more tree roots were found; the costs escalated to £570,000, and Westminster did its best to evade responsibility for those costs. One ground of its appeal was that the only party eligible to sue for damages was the owner of the property at the time the cracks first appeared; as the ownership had changed hands, the new owners were not entitled to sue ! The Law Lords ruled that the encroaching roots and the subsequent damage caused by them amounted to a nuisance, and that it was a continuing nuisance, no matter who the owner was. As the tree owner had been informed at an early stage of the existence of the nuisance, but had taken insufficient steps to abate the nuisance, the owner of the affected property was entitled to claim damages for all repair work.
This case clarifies the law immensely, but emphasises the importance of the tree-owner being clearly informed as soon as possible of the likelihood of structural damage being caused by the encroaching roots of their trees.
Never again believe a solicitor who says the law in this area is not clear
We thank Dot Sharman, London Area Organiser, for bringing the case to light.
Alan Bridgman ('Guidelines' negotiator and adviser on court cases).
Letter of Notice
A letter of notice for sending to a neighbour who is growing a problem hedge, which is likely to cause damage to your property, is available, by email, strictly only to paid-up members by emailing as follows and stating the year in which you joined and your postcode or address, for verification purposes. (Copies by post must be requested from local organisers). You will need to be on the Hedgeline database and to have paid a subscription.
Clare (Please use this link for this purpose only and do not send unrequested attachments).
Using the letter
The very best alternative is for your insurers to write to the grower, but if the victim sends the letter himself there is good reason for him also to send a copy to his insurance company for witnessing and no harm in insisting that the insurer does witness it. If the victim sends the letter to the grower it is most important that any supporting letter, with Alan's letter of notice, should be polite (nothing which anyone could call harassment). Alan's letter is forceful enough on its own.
The content of a covering letter could incorporate the following:-
You can mention the possible forms of damage, e.g. root damage to drains/paving/walls, subsidence and damage to your building, or possible damage by 'earth heave' when the trees are eventually cut if they grow too high. Be sure to mention any damage which has actually appeared already.
You could mention that if the dispute becomes more settled you will both have to declare it as a problem when you sell your houses.
DO NOT take a 'harrassing' tone in this covering letter to your neighbour and please remember that:-
Hedgeline volunteers are not necessarily legally qualified, and Hedgeline policy is to advise members NOT to go to law unless absolutely unavoidable. Hedgeline advice is given in good faith, but no responsibility is accepted for the decision of individual members to enter into litigation.
Hedgeline does not accept any active involvement in any individual's litigation.
Government research being done on genetic fingerprinting to identify tree roots
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Mr Paul Brough, unfortunately, tore down chain link fence and cut a Leyland Cypress Hedge. Despite words of sympathy from the Judge, who expressed his view that the hedge was
unsuitable, he was fined 500 pounds and his costs were nearly fifty thousand pounds. Mr Brough lives in Northumberland.
We have heard it rumoured that the hedge was originally planted on the land Mr Brough now owns and that he considered it to be his hedge at the time of cutting.
We extend our most sincere sympathy.
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By no means all the members involved in these cases are willing to entertain media publicity. Some, involved in settlements, have to sign an agreement not to involve themselves in publicity. Others are worried about the court's attitude to publicity or about their aggressive neighbours.
Taken to Court for Cutting back the Nuisance Hedge
We have on our record 12 cases where members were taken to court and most of them fined heavily for going over the boundary. The fines generally amounted to thousands of pounds. Fines are generally awarded for replacement of damaged trees. We know of no examples where the trees have been replaced. In one instance the hedge was removed by its owner, after thousands had been paid to him in damages, and expensive renovations carried out on the house. The 12 cases include -
Took Grower to Court for Damages & Succeeded
We have three cases where very determined, clever people took out court action on account of damage to their property and succeeded.
It is very difficult to prove to the satisfaction of a Law Court that a hedge is responsible for any damage. The process is very drawn out, leads to great anxiety and the results are unpredictable. We have four cases on record where the victim took the grower to court on the grounds of nuisance. Among these:
Took Grower to Court for on 'Right to Light'
We have a record of a firm in the channel islands which contested on 'right to light' in the 1960s and won.
Small Claims Successes
We have three records of victims successfully taking their neighbours to court. Two reclaimed the cost of professional cutting back of the hedges and one took two different neighbours to court in the same year.
Nuisance hedge growers frequently settle before a small claims court hearing and the number of out-of court settlements far outnumbers the cases which are heard in the court. Most of the earlier instances of small claims actions were claims for obvious damage to property (e.g. a fence pushed over). We are now getting regular reports of settlements out of court for the expense of removing overhanging growth. (July 2000)
Mr. Burnside repeatedly asked his neighbour to cut the now 30 foot Leylandii hedge. The neighbour did not cut the hedge, and finally, in desperation, the Burnsides took him to Court.
The case has just been lost, October 1999, and the Burnsides are left with a Bill for £25,000. He says he is unable to pay this money and will go to prison, if necessary. Their home will have to be sold, but has been seriously devalued by the presence of the nuisance hedge.
The statements made by the Burnsides in court indicated that they were aware of their inability to pay costs and a willingness as a last resort action to risk imprisonment.
The Burnsides say that they could not afford to have expert witnesses present for their case or to have the degree of expensive legal support that their neighbour was easily able to afford.
Group Captain Burnside is a, three times decorated, war hero. His neighbour was a member of a successful pop group.
He said the hedge had made his pleasant retirement retreat into a hell.
Our member's policeman neighbour had grown an 'L' shaped line of Leylandii along his boundary. These trees had reached 4 metres in height and were between 20 and 70 cms. from our member's house.
The member alleged that these trees had desiccated the clay soil and caused some damage thereby.
There was a three day, fixed date hearing at Luton County Court and on the third day of the hearing the defendants ( hedge growers) made a settlement offer which was accepted by the plaintive ( hedge victim). It comprised a consent order requiring the defendants to remove all their trees and to meet the member's entire costs.
The costs are expected to be well in excess of £40,000.
The question of damages has yet to be resolved. The plaintive intends to contact his insurers to ascertain their views about these damages
Michael Jones' Neighbours cut the second line of leylandii, on May 6th. 1999, under threat of being taken to Court by the Bourneville Trust. They are now at the same height as the original line.
Michael established his right to lop the first line to a reasonable height when, during his famous lengthy Court Case, he proved the hedge was, under the Covenant of the Bourneville Estate, a party hedge. see below
The Bournville Trust had announced its intention of bringing an action against Michael's neighbours, the three Stanton brothers, and their father, for causing a nuisance by growing a second row of Leylandii immediately behind the original Hedge. They were told that they must cut these trees or be taken to Court. There is a clause in the Covenant, which applies to all properties built on the Bournville Estate, expressly forbidding any nuisance of this kind.
* Michael affirms that he will not give up running Hedgeline as a result.
A lengthy dispute concerning a line of leyland cypress trees has been settled out of court.
The insurance companies of the two parties concerned have been considering the matter for several years. Various experts have been called in to give their opinions and have
established that one neighbour's property has been damaged, and subsidence caused by the hedge belonging to the other neighbour.
If the case had gone to court The Hedge Owner's insurance company could have been liable to incur payments, which were estimated at, £20,000 to cover the cost of repairs to the damaged property, £50,000 for underpinning, and court costs. There was even the possibility that the owner might have to foot the bill personally, in view of the fact that many insurance companies are refusing to honour third party liability clauses in the policies of clients with unmaintained nuisance hedges.
As it is the solicitors of the two parties have drawn up an order which has been signed by the Hedge Owner. He has agreed to fell the trees close to his neighbour's house and has done so. He has also agreed to keep the others below a certain set height. If he does not carry out appropriate maintenance, then the court case automatically reopens.
The advice of the Hedgeline members, who achieved such a satisfactory outcome in this affair, is to keep to the facts, to talk about damage to property, amenity, or lifestyle, but not to indulge in any emotional wrangling or make any deleterious comments about the hedge grower to anyone at all. This will ensure that insurance companies, lawyers, and any officials concerned, will concentrate on the damage being caused by the hedge and will take this seriously, and not see it as merely an item in an escalating squabble.
Brenda and John are the couple, featured on both 'Neighbours from Hell' and 'Neighbours at War', whose cottage has been virtually walled in by high conifers.
Brenda and John Laws, of Hereford have accepted, in principal, an out-of-Court settlement to their four year long dispute with their landowner neighbour. The details of the settlement are currently being negotiated.
This was finally settled out of court in early 2000.
Sylvia Jones who appeared on an early 'Neighbours from Hell Programme', is one of three ladies living in adjacent houses, all widows, and all living on their own, who have a line of Leylandii behind their houses and close to their windows. The cutting back of the hedge was carried out on behalf of all three ladies. None of the three Ladies, has settled out-of Court, despite the fact that offers of a settlement were made to two of them, (not to Sylvia, who arranged the cutting).
The party who is instituting proceedings is a common neighbour of all three ladies.
Update, 4th January 2001.
The tree growing neighbour, who is considered to have 'lost face after the Court Case', has sold his property and moved. The new owners are being extremely friendly, are completely removing the offending hedge and are doing all in their power to accomodate its former victims.
National Papers are reporting that a Mr Llandis Bowen was shot dead by his neighbour Mr Reg. Bowen, on July 7th 2000, in Talbont on Usk, over a boundary dispute. They go on to say
that Villagers claim the dispute was complex and of 20 years duration. The hedge was only 6 feet high and was not a central issue.
There is a Leylandii hedge between the properties. Neither neighbour was a member of Hedgeline.
We have records of two other incidents where extreme violence occurred and was clearly associated with the cutting back of overhanging branches. There was police involvement in both cases.
Max and Irene's long drawn out hedge problems have finally been solved. Max and Irene are our database and regional directors and originally set-up Hedgeline's administration. They tell us: -
We had to pay an 'excess' of £1,000 to the insurance company before it would start reinstatement.
We lodged a claim in the small claims court to reclaim the excess, and backed up the claim with all the expert surveys carried out. The case was not defended, judgement was taken out and then the warrant of execution was taken out. As a result the money and costs were paid into court yesterday (22nd January 2001)'.
A further Small Claims win has reached our notice. Maureen, a Sussex member, took a housing trust neighbour to the Small Claims Court on the grounds that the roots of their fast growing hedge had cracked a pathway and were causing worry concerning possibility of damage to a damp proofing and to gas pipes.
Maureen won her case and the hedge and its roots had to be removed. She was also awarded £150 compensation for the trouble and worry in which the hedge had involved her.Report.April 2000
A Francis took two of her neighbours to the Small Claims Court and has won both her cases (October 1999). The judge, although he was extremely irritatingly because two neighbours had not managed to settle the dispute themselves, awarded her the costs of professional cutting back her neighbour's hedge to the boundary. He did this because she gave him notice, and because the cutting was beyond 'the normal scope'.
A Middlesex member suing for damage by a neighbour's trees has been awarded a substantial settlement before the Small Claims Court Hearing, scheduled for 15th April 99. It is
sufficient to cover the cost of his expert witnesses and allows him over £1,000 to repair his damage.
Nevertheless he says that as long as the trees are there the potential for damage continues and he will sue again and again.
A property company has dramatically backed down on its opposition, and will not contest a damage claim lodged against it in the Small Claims' Court by one of our members.
One of our members, 'Maureen from Worthing', took her neighbour to the Small Claims' Court, on an issue of damage to drains. The neighbour's house turned out to be rented and owned by a property company. The property company took out a counter claim, and Maureen was extremely worried.
In the last week the counter claim has been withdrawn and the property company has agreed to make good all damage to drains, and to fell the trees, at its own expense.
Written on 21st November, 97.
In 1994 Joan from Leicester took her neighbour to the Small Claims Court for reclaiming costs of professionally cutting back branches. She won.
This was an independent action and Hedgeline discovered about it subsequent to issuing its own advice on Small claims possibilities.
Please remember that though the Small Claims Court is essentially the same, the documentation and some details changed at the beginning of April when the Woolf reforms were instituted. We have not as yet received any expert advice on the exact nature of the changes but have a local organiser who has since helped one of our members achieve a successful outcome in the Small Claim's Court.
More Information on the Small Claims Court
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The Small Claims Court route for reclaiming the cost of cutting back overhang is not now proving quite straightforward.
We are hearing reports counter claims. One very old lady from Leicester (referred to above), our first ever known small claims success, claimed the costs of cutting back a second time but was accused of cooking the books regarding her first claim The small claims judge referred the case to a higher court so she withdrew.
Another member, when she claimed back the costs of cutting, was told she would be taken to court for harassment if her claim was unsuccessful, so she is hesitating.
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