Whilst trees certainly have a great deal of amenity value, to say nothing of the increasing value of timber, trees can also be the cause of a great deal of trouble legally speaking. They are, after all, extremely large, heavy objects with a life of their own and which are quite capable of causing serious damage in several different ways. Two of the most common problems are trees situated on boundaries between neighbours and trees bordering highways and other rights of way to which the public have access.
When it comes to trees on boundaries, the problems tend to be overhanging branches and encroaching roots, which can affect ground stability, foundations and drains. If you or your neighbour are experiencing such problems, the first step is to determine who owns the tree – and therefore, who is liable. Even if trees appear to be precisely on the boundary line, it will belong to the party on whose land it was originally planted. This is a matter of fact (and probably some detective work) in each case. If ownership is unclear, but one party has taken responsibility for topping, lopping and similar in the past, then that is taken to be evidence of ownership.
If the tree is yours, you are under a duty to your neighbour to ensure that it does not become a problem to them. This means that you should carry out whatever work is necessary and in a timely fashion, to ensure that it stays in good health and does not become a nuisance. As an aside, if you own trees running along a boundary with someone else’s animals on the other side, you will be responsible if those animals are injured by eating any overhanging part of the tree that is poisonous to them. Perhaps something of which tenders of churchyards with Yews in should be aware …
If, on the other hand, your neighbour’s tree is causing you a problem, you have the right to cut off any boughs which overhang your land without notice to them (even if it is subject to a tree preservation order), although you may not go on to their land to do so. The legal reasoning behind this is that the overhanging branches are a ‘nuisance’ and a nuisance is an ‘unlawful interference with the use or enjoyment of your land’. You are therefore, technically exercising the self-help remedy of ‘abating a nuisance’ by cutting the offending branches off. The unfortunate side effect of this is that because you have no property in the branches, you cannot then appropriate either them, or any fruit on them!
The situation regarding encroaching roots causing damage is similar and you have the right to cut those back if on your land. However, as there is a greater chance of damaging either the tree or worse, buildings, I strongly recommend getting your neighbour on side first (and perhaps suggesting you go halves on the cost of the works at the same time).
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Another common problem area is trees adjacent to highways. The problem here is less one of encroaching roots or branches, as local authorities and the secretary of state have statutory powers to deal with those, but rather one of trees falling on people and injuring them and their cars. Owners of trees near highways owe a duty of care to the public using that highway (or right of way) to ensure that the tree does not present a danger. The more open to public access is to the tree and the busier the highway in question, the more care you have to take. Unsurprisingly, perhaps, this is a (very) well-litigated area.
A private tree owner can discharge that duty of care (and therefore protect himself against claims) by taking all reasonable management measures to avoid foreseeable injury or harm being caused by that tree. This can also be translated as; landowners must act in a sensible and practical way, according to the size of their properties, the nature and location of the tree/s (and the depth of their pockets). What is practical for a landed estate of 800 hectares crossed by many public highways and with thousands of trees on it, will not necessarily be suitable for the a home-owner with several garden trees that happen to border a footpath, say. If however, you take all reasonable steps to manage your trees, top and lop when necessary and undertake any reasonable investigations if you suspect them of being diseased or otherwise unsound, then you should have a good defence to any claims.
On a practical note, it is probably worth ensuring that any estate insurance policy covers the situation where a ‘high risk’ tree falls into the road, if there are trees you are particularly concerned about.
But look on the bright side, in 2008 a Victoria Plane in London was valued at £750,000, so you might just be sitting on a pile of gold – or of course, you could just cut down all your trees and save on the heating bills.
Despite being one who feels the cold, Elizabeth braved a move to Northumberland and has worked there as a solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms and Estates Team, where she started life as a trainee in 2003. As part of this specialist and nationally renowned team, she works both for a number of larger estates and trusts on an ongoing basis and also on one-off matters, covering the range of rural property law, including; sales and purchases, sporting rights,rights of way, easements and tenancies, to name a few. Outside the office, she nearly managed to get sent to the North Pole, loves the occasional hunt with the CVNNH and continues to try and break the 4-hour mark for a marathon. She lives with her husband, a terrier and a very silly basset.
She can be contacted through Dickinson Dees at 0191 279 9000