Neighbourly Problems With Trees

Trees are a great addition to a garden; providing shade, privacy and amenity. However, they can also block a neighbour’s light and cause damage to property. Trees can therefore be a source of highly contentious disputes between neighbours.

Who owns the trees?

The source of ownership is determined by where the tree trunk originally grows. The owner of the tree will then have a legal responsibility to maintain.

If a tree is on a boundary line between properties you may check your title documents (a copy of which can be obtained from the Land Registry) to see is there are any indication of ownership. It may be that a tree on a boundary is the joint responsibility of both neighbours, or this can be agreed between the parties.

Are the trees protected?

Trees which are the subject of Tree Preservation Orders (TPO) and in a Conservation Area have special protection. You should be able to check this with the local authority.

A TPO is an order made by a local planning authority in England to protect specific trees, groups of trees or woodlands in the interests of amenity. A TPO prohibits the:

• cutting down
• topping
• lopping
• uprooting
• wilful damage
• wilful destruction

of trees without the local planning authority’s written consent. If consent is given, it can be subject to conditions which have to be followed.

Anyone wanting to cut down, top, lop or uproot trees subject to a TPO must first apply to the local planning authority for its consent unless the proposed work is exempt through an exception. Where an exception applies the authority’s consent to carry out works is not needed, but notice of those works may need to be given to the authority.

Some of the exceptions include certain work:

• on dead trees and branches;
• on dangerous trees and branches;
• to prevent or abate a nuisance;
• by or for statutory undertakers;

Section 210(1) and section 202C(2) of the Town and Country Planning Act 1990 provide that anyone who, in contravention of a TPO

• cuts down, uproots or wilfully destroys a tree; or
• tops, lops or wilfully damages a tree in a way that is likely to destroy it; or
• causes or permits such activities

is guilty of an offence.

Section 210(2) of the Town and Country Planning Act 1990 provides that anyone found guilty of these offences is liable, if convicted in the magistrates’ court, to a fine of up to £20,000. In serious cases a person may be committed for trial in the Crown Court and, if convicted, is liable to an unlimited fine.

The local authority usually have between 6 months and 3 years to bring an action. They may also consider injunctive action to prevent the offence in the first place.

If you wish to carry works to trees not protected by a TPO but in a Conservation Area, you have to give written (section 211) notice to the local authority of any proposed work, describing what you want to do, at least six weeks before the work starts. This gives the local authority an opportunity to consider protecting the tree with a TPO.

You do not need to give notice of work on a tree that have a trunk diameter of more than 75mm when measured at 1.5m from ground level (or more than 100mm if reducing the number of trees to benefit the growth of other trees).

Encroaching trees and Property Damage

It is common for trees growing close to boundaries to have overhanging branches. You have a right to cut back any tree branches which overhang into your garden providing you can do this without trespassing onto your neighbour’s land and only up to the boundary line. However these branches still belong to your neighbour and you should notify them you are cutting them down and check whether they want them back or disposed of.

Just a note that if you take any fruit or flowers from overhanging branches it can still be considered an offence under the Theft Act 1968!

Also you cannot ask your neighbour to come and sweep up any leaves which have fallen in your garden and whilst practically a nuisance it is not considered legally a nuisance.

If tree roots are encroaching on your property, the same principle applies, especially as they have the potential to cause more substantial damage like subsidence. It is however advisable to seek proper professional advice from a tree surgeon or structural engineer to identify whether the main cause of any property damage are the trees and remedial action required. This should be done in consultation with your neighbours as you may very well need access for remedial works. Also insurers for both properties should be notified and involved.

The Right to Light

If a property has received daylight for the last 20 years they may have a protected right to light under the Rights of Light Act 1959. Note the right is to ‘daylight’ and not ‘sunlight’. This is usually restricted to one foot of candlelight. There is also no right to a ‘view’.

If you do have a right to light which is being adversely affected by large trees, then you may be able to apply to the court to restore your right or get an injunction to prevent interference with your right.

Your title documents may also reveal any legal right to light or a restriction on the neighbour’s title preventing planting of trees in certain areas.

Under the High Hedges Regulations 2005, you can apply to the local authority for a High Hedge Notice where a hedge is two or more shrubs/trees and is more than 2 metres high.

Final Words

Where possible it is always best to try and resolve any issues you have with your neighbour amicably. You have to see them day in and day out so it is best to keep relations civil. In addition if a dispute is escalated you may have to disclose this to any potential buyer if you are considering a sale in the near future.

You could also consider a more structured and formal alternative dispute resolution such as mediation. The Property Litigation Association and RICS have launched a new mediation service to help neighbours resolve disputes over their property boundaries without resorting to court action.

The Boundary Disputes Mediation Service draws on a 16-strong panel of mediators, lawyers and surveyors who are experienced in neighbour and boundary disputes. A fixed fee is agreed at the outset, avoiding the high, often spiralling, costs of litigation, and parties can retain control of the negotiation process.

In the event that you really cannot resolve the matter, then proper legal advice should be sought at an early stage before you embark on any self-help which could make matters worse or prejudice your position. You should check whether you have the benefit of Legal Expense Insurance as part of your home, contents, or motor insurance which may provide some indemnity for legal costs in these types of cases.

If you’re seeking legal advice relating to boundary disputes please call our highly experienced Property Dispute solicitors on 0808 271 9413 to talk through your situation with us. Alternatively, you can request a call back online.