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(Video by Daniel ShenSmith, Barrister)
When one observes the great majesty of a venerable oak tree on a country lane or the slightly otherworldly charm of a cascading willow in a churchyard, the thought of these extraordinary organisms as pests or hindrances would be unlikely to emerge in one’s mind. Nevertheless, trees can, if not properly maintained and inspected, become nuisances; and I do not mean ‘nuisance’ merely in the everyday meaning of the word, but also in its specific legal context. In the law, a nuisance is defined as any unlawful, indirect interference with a person’s use or enjoyment of land or some right over it, and a tree owner permitting such interference could become subject to legal proceedings. While a guide of this kind can never replace proper legal advice, I hope it may serve as a useful summary of the possible courses of action for those of you who may be suffering tree-related issues, while sowing some seeds of thought for tree owners.
Ownership and positioning of trees and plants
You may be wondering if you should be held responsible for a tree, hedge, shrub or other plants that is growing on your land but you did not plant yourself (perhaps it was planted long before you bought the property in question). The simple answer is that if a plant is growing on land that you own, it is your responsibility and you may be held liable if that plant is causing a nuisance or other problem.
If a tree’s base sits right over the boundary line between two properties, it is technically jointly owned by the two neighbours, and if one wishes to perform any sort of work on the tree, they should obtain consent from the other neighbour. Felling or performing any other work without the other neighbour’s consent could be an act of trespass, which is a form of direct interference with somebody else’s land.
There can sometimes be doubt regarding who is responsible for creeper-like plants such as ivy that may be growing on the walls of a neighbour’s building. The easy way to resolve this confusion is to check the soil out of which the ivy is growing. If this soil is on your land, you are responsible for that ivy and particular care should be taken with these vociferous creepers because if left to their own devices, they can penetrate brickwork, roofing, guttering and drains, and you may well be liable for any damage that might result.
Talking of invasive and undesirable species, the Japanese Knotweed, or Fallopia japonica, really is the botanical pest par excellence. You could incur serious criminal penalties if you are found to have allowed this rather unpleasant weed to spread into the wild, and you may be liable to civil actions from your neighbours if the plant is allowed to spread onto their land. It is incredibly persistent and can cause severe damage to structures by penetrating brickwork and even foundations. The government website provides very good guidance on the identification of Japanese Knotweed, the link for which I share here, and because it is a plant that requires special control and disposal methods, it would be advisable, as soon as you have a suspicion that you may have this dreadful plant growing on your land, to contact a suitably qualified professional to arrange its destruction and disposal.
The root of tree law problems
Tree roots, particularly on larger, older trees, can be problematic and potentially run two very common risks. The first is the more obvious, direct damage of a neighbour’s land resulting from the roots penetrating drainage systems or building foundations, and the second is the indirect, but by no means no less serious, damage caused by ‘subsidence’. As you can imagine, very large trees are responsible for a vast amount of water movement in the soil: it is staggering to think that a large oak tree can absorb up to 50 gallons of water per day! This dehydration of the soil causes it to shrink, and it will swell again when it is rehydrated by rainfall. The resultant ground movement caused by this cyclical expansion and contraction can cause structural damage to the foundations of buildings called ‘subsidence’, and owners of large trees should be aware that their neighbours can become victim to this form of nuisance even if the roots of their trees do not technically encroach onto the neighbour’s land.
There are numerous potential measures that might be adopted to prevent nuisance caused by tree roots. The most drastic method, of course, would be to fell the tree, although one has to take great care in doing this with large trees because the swelling effect on the soil caused by the absence of water absorption by the roots could cause so-called ground ‘heave’. If the tree in question is large, it would almost certainly be best to consult a suitably qualified arboriculturist or structural engineer to find out whether felling would be the most suitable option.
Other methods of preventing tree root nuisance could be heavy pruning of the tree or its roots, or the installation of a root barrier that prevents roots growing in a certain direction. Again, consulting a suitably qualified arboriculturist would be advisable.
A further branch of the law on trees
Overhanging branches from trees may also create a nuisance by growing in a certain direction and thus causing physical damage to structures on the neighbour’s property. The branches could also potentially fall from the tree and thereby damage the neighbour’s property or cause injury. It would, therefore, be highly prudent for tree owners to undertake the necessary maintenance to prevent any overhanging onto neighbouring property.
If a tree owner has a tree overhanging a highway, he will be subject to similar duties to those he owes to a neighbour, except the standard of care expected of him may be higher due to the increased risk caused to pedestrians and vehicles. If you own trees overhanging a highway or other public right of way, they should be inspected regularly, preferably by a suitably qualified arboriculturist.
Beware that highway authorities also have certain statutory rights to require removal of branches overhanging the highway at the cost of the plant owner, to remove plants obstructing the highway themselves or cut any plants obstructing the view of drivers or pedestrians at any corner or bend in the highway.
Furthermore, tree owners should also appreciate that there exist numerous statutory provisions that give railway companies, electricity companies and telecommunications providers the power to demand the lopping or complete removal of trees that may impinge on the safe and effective operation of those forms of infrastructure. Particular care and regular maintenance of the trees would be recommended in these circumstances.
Remaining popular with the neighbours
If you have fallen or are likely to fall victim to nuisance of the kind described above, the initial approach to take should not be one of combative indignation; the law says that a tree owner may not owe a duty to his neighbour if he did not or could not know of the encroachment, and courts always wish to see that parties have acted reasonably in trying to avoid litigation. It may be that an informal, cooperative conversation, pointing out the problem, may be enough for your neighbour to take remedial action. If such a conversation is not fruitful or not possible, it may be prudent for you to send the neighbour your objections and concerns in writing. This might be sufficient to put him to work, and can also serve as proof that you undertook the necessary means to resolve the problem without legal recourse and bring it to your neighbour’s attention – the law says that an occupier of land ‘continues’ a nuisance, once he knows of its existence if he fails to take reasonable steps to bring the nuisance to an end. It also says that a party causing a nuisance is entitled to notice of it and reasonable opportunity to stop it before they can be held liable for any remedial expenditure.
Vital points to remember before working on a tree
Some trees may be subject to a ‘Tree Preservation Order’, which makes it a criminal offence to fell, lop, uproot, damage or destroy a tree without the consent of the local authority. It would therefore be highly advisable to contact your local council’s planning department to see if such an order has been placed upon a tree before you decide to fell it or undertake any sort of work on it. The statutory provisions that govern these orders do make exceptions to this requirement to contact the local authority: for example, one is not required to contact the council regarding any work done to prevent or control a legal nuisance. Nevertheless, it would still be suitably prudent to verify if an order exists for a particular tree and to get the appropriate written permission from the local authority before any work upon it is started.
Similarly, if the tree you plan to work upon is located in a conservation area (but not subject to a Tree Preservation Order), you must give written notice of the work you plan to carry out, including sufficient information for the actual tree in question to be identified, to your local planning authority six weeks prior to carrying the work out. This only applies to trees that are 7.5cm or more in diameter when measured 1.5 metres above the ground.
You must also make sure that there are no active birds’ nests in the tree, for it is a criminal offence to damage or destroy the nest of any wild bird while it is in use or being built. It is also an offence to disturb the roosting sites of wild bats.
Shedding light on matters of tree law
Aside from nuisance, trees, hedges and other plants can also cause a blockage of light to a neighbour’s property. It must be said that the law is less strident in this area than in nuisance, and it might be frustrating to note that there exists no automatic and universal right to light. A legal right to light in the form of what we call an ‘easement’ may emerge if it has been granted expressly, impliedly, by statute or through ‘prescription’, which usually means the right has been enjoyed without interruption for the last 20 years, and you have the requisite proof of this continued enjoyment.
A more useful avenue to explore, should you become victim to a reduction of light caused by trees or hedges, may be to complain to your local council pursuant to the Anti-Social Behaviour Act 2003. This can be used to oblige a neighbour to reduce the size of a ‘high hedge’, defined as a line of plants comprising at least two evergreen or semi-evergreen trees or shrubs at a height of more than two metres above ground level. Local authorities will almost invariably charge a fee for this, and some may not be willing to take action, especially if you cannot provide proof of your having given your neighbour notice of the problem or you have not tried to discuss it with them at all. Nevertheless, this could be a possible alternative course.
Potential remedies for tree nuisance
If you have been the victim of nuisance caused by trees, and calm discussion with your neighbour has proved less than fruitful, you may be able to seek an injunction to prevent future harm and recurrence of damage. This injunction could oblige the tree owner to prune the tree, cut its roots or even fell it entirely. You may be able to secure an injunction to prevent harm from tree roots that have not yet caused damage, but the courts are notoriously reluctant to grant injunctions to prevent anticipated harms unless it can be proven that the risk of damage posed is real and imminent. Although recent case law has suggested that the probability and likely gravity of the damage, and not just its imminence, should also be taken into account, you should still be aware that obtaining anticipatory injunctions of this kind can be rather difficult.
A successful claim in nuisance can also lead to the awarding of damages, which will usually cover the cost of the work required to return the property back to the state it was in before the damage occurred and possibly other losses caused by the nuisance (costs of alternative accommodation etc.)
Cutting encroaching plant or tree matter yourself
It is a right of a landowner to cut back any roots or branches of a neighbour’s tree that encroach onto their land, and this can be done without the tree owner’s permission. However, there are numerous considerations that must be borne in mind before one takes this course of action.
Firstly, if the pruning that you undertake destabilises or kills the tree, you may be liable for damaging it; it would therefore be highly advisable to consult a suitably qualified arboriculturist before performing work of this kind.
Secondly, the root or branch material that you cut still, in the eyes of the law, belongs to the tree owner. While it may ostensibly sound silly or unrealistic, you must nevertheless offer to return any cuttings to the owner to avoid allegations of theft. Disputes of this kind can become gratuitously acrimonious and it would be most unfortunate to find yourself prone to such allegations. If they do not want the material back (which, in all likelihood, they will not), you will be responsible for disposing of it; you cannot simply discard the material over the neighbour’s boundary. This is why fostering cooperative, friendly communications with your neighbour, where at all possible, is so useful, because it may be that, on discovering that their trees overhang your property, your neighbour will be perfectly willing to cut the overhanging branches down and dispose of them himself, thereby obviating the need to commence litigation and endure the irreversible cooling of neighbourly relations that usually results.
Thirdly, you must ensure that the tree you are cutting does not have a tree preservation order upon it, as discussed above. If there is, consent from the council will be required before such work is commenced. You must also make sure that there are no nesting birds in the plant you are planning to work upon.
Those of you with neighbouring fruit-bearing trees overhanging your property should remember that the fruit from this tree still belongs to the tree’s owner, and you cannot take it and keep it without the owner’s permission. This applies to so-called ‘windfall’ fruit that may have fallen off the overhanging branches onto your land. If the tree is producing fruit, seeds, leaves or any other extrusion causing damage or interference to your property, however, then the owner of the tree should be consulted, as they may be causing an actionable nuisance.
Conclusion
Tree owners should frequently manage tree growth to prevent any harm from being caused and they should check whether any trees on their land are, in fact, causing damage or run the risk of doing so. Any necessary remedial action should take into account possible tree preservation orders and nesting wildlife.
Those who feel they are or are to become victim of tree-related issues should, before all else, try and establish effective, cooperative communication with tree owners to express their concerns and suggest what action they want to be taken – this can certainly help to avoid the costs and stress of litigation, as well as the resultant neighbourly frostiness that such disputes can provoke.
Most importantly, if in any doubt whatsoever, make sure you obtain proper legal advice.
Article by Mr John Price, Barrister