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Trees and the Law

Introduction

This guide gives a brief outline of some of the more common points of the law affecting trees. It is not a definitive guide and is not intended to be used as such. As the law is complex there may be exceptions to the rules. If you require clarification of your legal position you should always seek legal advice.

TreeWho owns Trees?

Trees are the property of the owner of the land on which they grow.

When it’s obvious where the tree is growing ownership can be assessed easily. However if a tree is growing adjacent to or spanning boundaries ownership detection can be problematic.  To find out who owns the tree you need to establish where the boundary line runs and on which side the tree first grew or was planted. Neither of these are  easy to find out especially if the tree is mature. Your property deeds will sometimes say if a tree is on your land but otherwise you may have to come to an amicable agreement with your neighbour. Ultimately, if you are willing to take the matter far enough, a Court would decide for you.

Another thing to remember is that all trees are owned by somebody. There is no such thing as "no man's land" - all land and therefore all trees are owned by somebody.

Who is responsible for maintaining trees?

The owner of the tree is responsible for maintaining it in good order. In the case of tenants or leaseholders, it is usually the landlord who is responsible unless the tenancy agreement or lease specifically says other wise. The responsibility for maintaining a tree does not mean you must actively do something to look after it but if someone is injured or property is damaged because you didn't look after it a liable case could be brought against the owner. This is called negligence.

Trees which overhang boundaries

It is not the responsibility of the tree owner to prevent their trees from overhanging an adjacent property.

If branches do overhang your property then you have the right to cut off the branch without the owner's permission ensuring the work is done to arboriculture standards and does not harm the tree. The branches can only be cut back as far as the boundary and you have no right to cross the boundary to do this. This could be classed as tresspass.

Any branches you cut off, as well as any fruit, remain the property of the tree owner. You should not use or dispose of the pruning’s or fruit without the owner's permission. To do so could amount to theft or even criminal damage.

However, it is not advisable to just throw the material back over the fence, you could be prosecuted for fly tipping with penalties of up to £50,000 and/or 12mth imprisonment. It is advisable to ask the owner if they require the branches back but if they do not then it is your responsibility to dispose of them.

Roots which cross a boundary can be dealt with in the same way as branches but much more caution is needed. If the tree dies back or falls over as a result then the owner might have a claim.

Subsidence

It is the duty of the person claiming subsidence caused by trees to prove beyond reasonable doubt that the tree is causing the subsidence. Subsidence is normally only evident in areas of clay soil. The tree will remove water from the particles of soil causing the ground underneath a property to shrink. A greater risk to a property is a symptom called “Heave” where when a tree has been removed the sapping of water from underneath the property disappears and rehydrating causes the soil to swell violently.

Trees which block light and views

Although there is a "right to light" it is not as simple as most people believe.  The entitlement to light only applies to daylight in general -there is no right to direct sunlight. There is only a right to a particular level of light which is normally less that most already receive. The law is not very clear as to how trees affect this right. It is complicated by the fact that trees grow over a period of years, and that most trees don’t have leaves for part of the year. The law is much clearer if someone were to build a brick wall outside your window.

There is no right to light in a ''pleasure'' garden.

If trees obscure a view then you have no right to that view. The same is true if trees are removed and reveal, say, a building or view you'd rather not see.

Falling leaves and berries

Leaves, flowers, fruit, pollen are seasonal and fall from trees.

Many people regard this as a nuisance but whilst this may be troublesome at times it is not legally a nuisance. Nuisance has specific meaning in law.

Liability for leaves, fruit and pollen falling into a neighbouring property does not lie with the owner of the tree to clear them as leaf fall is a natural occurring phenomenon. Liability lies with the owner of the property affected to clear the leaves.

You might have a case if you can prove that it caused loss or damage but you would also have to prove that the damage could have been reasonably prevented. For example you might argue that you suffered damage as a result of leaves blocking a drain and that it could have been prevented by the owner cutting down or pruning the tree. On the other hand, is it reasonable to cut down a tree just because leaves fall off it for a short time each year, or is it more reasonable for you to clear the drain more often?

Dangerous Trees

Common law does not require tree owners to prune or maintain their trees - even if they are dangerous. It just places the liability on them should someone suffer damage if they fail to do so.

As a dangerous tree could cause a lot of damage, prevention is better than allocating blame. Fortunately there is the "Local Government (Miscellaneous Provisions) Act 1976" which enables a local Council to insist, by serving a Notice that the owner removes the danger. Ifthey refuse, the

Council can go onto the property and make the tree safe and charge the owner for doing so. For the Council to do this the tree must be dangerous and there must be an immediate risk to other people or property.