Notes on trees and the law

Ownership

When a tree is the subject of a dispute, it is important to determine who actually owns the tree. The issue of ownership, however, may be complicated in cases where it is on or near a boundary. If ownership is disputed it will, therefore, be necessary to first establish where the boundary lies. This may be determined by reference to property deeds (contact the Land Registry) or by resorting to traditional conveyancing rules. If the position of the boundary cannot be determined in this way it may be necessary for the parties concerned to come to an agreement, or allow the Courts to rule on the position of the boundary. The tree or hedge will then belong to and be the responsibility of, the person on whose land the tree is growing on. If on the other hand, the tree or hedge is exactly on the boundary then it will normally be considered the joint responsibility of both neighbours concerned (unless the deeds indicate that one party is responsible for its management).

Duty of Care

The Courts expect people to behave in a reasonable manner. We all owe, therefore, a duty of care to those around us and we must take reasonable care to avoid causing injury to people or damage to their property. We may fail in this duty and be negligent either because of our action or inaction. Liability, however, usually depends on whether a reasonable person should have foreseen the risk and taken action to prevent the incident. If the injury or damage could not have been foreseen then the owner may not be judged to have been negligent. However, trees are potentially dangerous structures and a reasonable person should, therefore, inspect them regularly to ensure they do not pose an unreasonable threat to people or property.

Tree Inspections & Liability Issues

A tree can never be regarded as completely safe and, as a result, the Courts expect a prudent landowner or tenant to inspect trees regularly, especially those trees in a position close to people and property. In many instances defects in trees usually start to develop many years before the tree becomes potentially unsafe. Regular inspections should identify and monitor such defects along with any other damage so that action can be taken before the trees become dangerous. If the owner feels unqualified to interpret features on a tree it would be prudent to seek assistance from a registered arboricultural consultant.

Tree Roots & Buildings

There are two types of damage that may be caused by tree roots – direct & indirect type damage. The former relates to pressure that may be exerted by tree roots as they grow, which usually only affects lightly loaded structures such as garden walls, driveways and patios. Indirect damage occurs when tree roots take moisture from shrinkable (usually clay) soils. As they do this the soil shrinks and may result in subsidence and cracks appearing in the structure. This is known as localised differential soil shrinkage or subsidence damage. If cracks appear in a building and it is thought that a tree on neighbouring land may be to blame then the tree owner (or his insurer) may be liable for costs of repairs.

Overhanging Trees & Branches

The owner of a tree is not obliged to trim his trees or hedges to prevent them from crossing over a boundary. If they were, they would have a right of entry on to neighbouring land. Whilst the tree owner is not obliged to cut back overhanging branches, the person whose property is overhung has the right to cut back the branches to the boundary (providing there are no planning restriction on the trees such as TPOs). The resulting debris remains the property of the tree owner, but you must not cause any damage to their property when returning it back to them and you do not have a right to trespass on the tree owner’s property in carrying out the works. In the interests of good neighbourly relations, however, we would encourage neighbours to discuss their intentions with each other before carrying out works.

Right to Light and to a View

Contrary to popular belief there is no inherent ‘right to light’ to a property or its garden. The High Hedges Bill may, in some cases, require the owner of an evergreen hedge to reduce its height but you are advised to first read the leaflets 'Over the Garden Hedge' and 'High Hedges; complaining to the Council' before taking any action.

A separate right to light can be acquired if the light has been uninterrupted for at least 20 years (known as an easement). For the right to be infringed the loss of that light must be substantial and significantly interfere with the reasonable use and enjoyment of the property. This will not apply to gardens. There is no right in law to a view and a view obstructed by the growth of trees cannot legally be regarded as a nuisance.

Arboricultural Consultants

For professional arboricultural advice a registered consultant is recommended. Services typically required of a consultant are the preparation of reports resulting from: Assessing tree hazards, investigating building subsidence damage in relation to trees, legal and expert advice, formulating management plans plus many others. A list of registered Arboricultural Consultants can be obtained from the Arboricultural Association as follows:

Arboricultural Association
Ampfield House
Ampfield
Romsey
Hants
SO51 9PA
Telephone: 01794 368717
e-mail: admin@trees.org.uk
or see link below

Legal Agreements under s.106 Town & Country Planning Act 1990 (known as S106 Agreements)

An s.106 agreement is an agreement or instrument entered into by a person interested in land, either with the local planning authority of the area or unilaterally, which may;

• Restrict the development or use of the land in any specified way
• Require specified operations or activities to be carried out in, on or over the land;
• Require the land to be used in a specified way.

Such restrictions or requirements are called ‘planning obligations’ and may on occasion relate to trees, woodlands and hedgerows. For details of existing agreements.

Further Suggested Reading on Trees and the Law:

The Law of Trees, Forests & Hedgerows (Charles Mynors; Sweet & Maxwell;2002)
Arboricultural Practice Note: Trees in Dispute (Arboricultural Advisory & Information Service)