Trees

A tree or shrub belongs to the owner of the land on which it grows even if its branches or roots go over or under adjoining land. This includes the branches and the fruit of any tree or shrub. This even applies to windfall apples etc. The Theft Act 1968 makes it a criminal offence to take wild flowers, fruit and foliage from any plant if it is sold for commercial gain. However, falling leaves and fruit still belong to the owner of the tree or shrub, the law does not require the owner to come and sweep up the leaves or pick up the fruit. Having said that if falling leaves block a gutter, which results in water damage, the owner of the tree could be sued for damage.

You are not allowed to go onto your neighbours land or to lean over it to cut your hedge. You need the permission of your neighbour. The same is true about going onto your neighbours land to pick up windfalls or trim back branches.

More...

http://www.warrington.gov.uk/council/planning/trees_tpo.htm

Over Hanging Branches

Branches that grow so as to overhang your neighbours' land are trespassing on his air space. The neighbour can chop the branches back to the boundary but he has to return the lopped branches to the owner of the tree together with any fruit that might have been on them. If he lops beyond his boundary then it is a trespass. It is always best to ask your neighbour first although you do not need his permission to lop overhanging branches so long as they are returned.

You could sue the owner of the tree or shrubs for trespass; nuisance and/or negligence (in this case if they become dangerous).

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You should look at the Discussion Forum for a useful discussion in relation to overhanging branches.

High Hedges

A government Bill giving Local Authorities the power to control evergreen or semi-evergreen hedge heights seems set to become law. A residential occupier can complain to his Local Authority if :

1. A hedge is evergreen or semi-evergreen.
2. It is over 2m in height.
3. It is "unreasonably restricting " light to the property.

The Local Authority can issue a "remedial notice" on the owner eg to reduce its height. Failure to take action can result in a fine of up to £1000 and daily fines for so long as the failure continues.

Do not hold your breath! How strapped for cash are Local Authorities?

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See the Discussion Forum

Tree Preservation Orders

To protect a tree of group of trees or woodlands a local authority can make a tree preservation order to prohibit felling, topping, lopping or up-rooting or other wilful damage to listed trees. The local authority takes enforcement proceedings against the wrong doer in the Magistrates Court. The court can impost a fine not exceeding scale 4 which at the present time is £20,000.00 and can require replanting of the tree.

In order to make a Tree Preservation Order the local authority has to give the land owner written notice and advertise the proposed order in the newspaper. Objectors have 28 days in which to make written objections.

Once an order is made, only the local authority can enforce it. A concerned member of the public can apply to the local authority as soon as they are aware that a tree is at risk, but that person cannot take action on their own behalf.

More...

http://www.warrington.gov.uk/wonview/Parks/tpo/tpo.htm

Trees in a Conservation Area have their own regulations protecting them.

More...

http://www.warrington.gov.uk/wonview/Parks/tpo/tpo_con.htm

See the Discussion Forum

Roots

Like branches, roots that grow from your land onto a neighbours are trespassing. Your neighbour can chop the roots along the boundary line and does not need your permission to do so.

Roots can often lead to substantial damage e.g. by growing under the foundations of the house and causing them to become unsafe or by causing the soil to dry out resulting in subsidence. In these cases damage will be :-

1. The cost of repairs
2. The reduction in the value of the house if there is a loss on sale.
3. Any other expenses directly arising from the trespass.
4. In all likelihood the legal costs of the person who has suffered the damage.
5. An order by the court that the owner of the tree cuts back the branches or the roots or takes down the tree itself.

Subsidence/damage caused by tree roots will involve a claim, which will generally be a nuisance rather than trespass if it has to go to Court. Naturally a negotiated agreement with neighbours would be far preferable.

This might seem a strange way of looking at someone else's tree roots coming under your land. The Courts have decided that trespass involves a direct action rather than just by allowing the roots to grow. The same is true of overhanging branches.

More...

See the Discussion Forum

Safe Distances

Tree	Height (m)	Distance from House (m)
Oak	24	30
Elm	25	30
Hawthorn	10	12
Ash	23	21
Sycamore	24	17
Birch	14	10
Maple	21	20
Popular	28	35
Willow		40
Cyprus	25	20
Rowan	12	11
Magnolia	9	5
Walnut	18	14
Laburnum	12	9
Horse Chestnut	20	23
Beech	20	15
Plane	30	22

A number of arborculturalists have said that the above Table is far too cautious but you must decide for yourselves. Only one has submitted an alternative and here it is (gardenlaw makes no comment about the relative merits of either set of distances claiming no knowledge in this field) :

"You include a table of safe planting distances. This appears to be contain the data so popular with excessively cautious insurance companies and occasionally reproduced by alarmist Sunday papers.

It appears to be based on Cutler DF & Richardson IBK (1989), "Tree Roots and Buildings" 2nd ed, Longman, which outlines the results of a survey undertaken by the authors at Kew between 1971 - 1979 of the incidence of subsidence damage on shrinkable clay in which trees are implicated.

The figures given in the table you reproduce are the maximum distances at which any damage was ever recorded. They represent extreme examples that are statistically unlikely. It is also important to remember that the survey dealt exclusively with trees in the SE of England on highly shrinkable clay soils. On non-shrinkable soils this type of damage
simply can not occur.

The general circulation of this table sufficiently disturbed the authors of the original work that they have published a paper in the Arboricultural Journal (Gasson PE & Cutler DF 1998, "Can we live with trees in our towns and cities?", [in] Arboricultural Journal 22(1) pp1-9) with the summary:

"There is increasing concern that data on tree root spread in 'Tree Roots and Buildings' (Cutler and Richardson, 1989) are open to misinterpretation by insurers, home owners and arboriculturists. Insurers have tended to use maximum root spread figures, which we believe to be statistically and biologically unsound. This paper briefly examines the evidence and interprets this to show that with sensible use of the available data, there should be little conflict between trees and buildings in urban areas"

Their conclusion suggests that very different figures are appropriate as safe planting distance - in general the distance which includes 75% of damage attributed to a particular species. For smaller species the 50% boundary is more appropriate whilst for particularly large growing species the 90% figure is sufficiently cautious. This leaves the table looking more like this:

Willow 18m
Poplar 20m
Oak 18m
Elm 19m
Horse Chestnut 15m
Ash 10m
Maple 9-12m (depending on species)
Cyprus 2.5m
Lime 11m
Beech 9m
Plane 10m
Robinia 8.5m
Birch 4m
Cherry 3m
Rowan 5m

which you will see allows considerably more scope for urban tree
planting than the figures you give. Again, it must be stressed that this
type of damage and the need for these distances ONLY applies to
shrinkable clay soils.

What difference does it make if the Court claim has to be for nuisance rather than trespass?

The following are essential:

1. The person making the claim (the Plaintiff) must be an owner of the land affected. This would usually mean that they must either own the freehold or have leasehold of the land.

2. The person alleged to commit the nuisance (the Defendant) should be in occupation of the land from which the roots grow because he has to be in a position to abate the nuisance.

3. Unlike trespass where damage is not necessary you must be able to prove that damage has already been caused to your property. Having said that one Judge has recently granted an injunction because there was "a threat to the stability" of the Plaintiff's house. It would be right to say that the roots had already been allowed to cause damage to a boundary wall of the Plaintiff's property.

4. A reasonable person in the position of the Defendant must be able to have foreseen that damage would be caused by the roots. If you are buying a property in that situation you will be taken to have adopted or continued the nuisance.

Insurance Companies will often say that a building is old and that that is the reason for the damage. They might even argue that the house should not have been built so near to trees. Neither of these arguments is a strong one."

Direct Action

The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub. You should always try to reach an understanding with the neighbour who owns the tree and if damage is likely to be severe, then it may be advisable to seek help from a tree surgeon.

More:

See the Discussion Forum

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Trees

Over Hanging Branches

High Hedges

Tree Preservation Orders

Roots

Safe Distances

Direct Action

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