Trees are a much-valued part of the landscape; but they can also cause problems. The law on trees regards them as part of the land on which they are growing, and therefore the responsibility of the landowner.
Liability for trees
Trees can be dangerous, in particular, falling branches can cause injuries. The law imposes duties of care on landowners, to make sure that people visiting their property are reasonably safe. The nature of the duty will depend partly on whether people coming on to the property are lawful visitors or trespassers, since the duty in respect of the latter class is less strict. Trees – particularly large ones – may need regular inspections and work to make sure that they are not dangerous.
The law on trees: encroachment
Trees may grow so that their branches overhanging the boundary with neighbouring land, or say that the roots undermine the boundary and may cause damage to buildings close to the boundary. While the former problem is likely to be obvious, the latter may take many years to become apparent. Questions may arise as to who is to blame: a neighbour who has failed to take action against encroaching tree roots, once it was clear that damage was beking caused, may be held partly to blame. “Limitation” may also be in issue: the remedies which the law provides must be exercised within a set time; usually six years in the case of encroaching tree roots. In the case of encroaching branches and roots, it is well established that the law allows the neighbouring landowner to cut them off at the boundary.
The law on trees: nuisance
Trees, and particularly large ones, may have an adverse effect on neighbouring property because they shut out sunlight. If the effect is sufficiently serious, this may amount to a legal wrong of the sought noon as a “nuisance”. It is doubtful whether the law allows a neighbour to enter onto someone else’s land to cut back trees causing the sort of problem; such “self-help” action is regarded as lawful only in cases of emergency.
Protecting trees: TPOs
Local authorities have power to make “tree preservation orders” (or “TPOs”), if they think it is “expedient in the interests of amenity”. (“Amenity” just means “pleasantness”, i.e. the pleasantness of the area around the tree, to which the tree contributes.) A TPO can be made in relation to a single tree, a group of trees, or an area of woodland. There is no definition of how large or small a tree has to be, or what to what species it must belong; but the law does not apply to bushes and shrubs. A TPO will generally forbid the “cutting down, topping, lobbying, bruising, wilful damage or wilful destruction” of the tree(s). (“Lopping” means removing lateral branches.) However, there are exceptions, and these include:
• Trees which are dead or have become dangerous (this includes the removal of the dead branch from a living tree).
• Trees which must be cut down, topped all locks in order to prevent a nuisance (as explained above).
• Trees which must be cut down in order to implement a planning permission.
• Trees cut down, topped, etc in accordance with consent given by the local authority.
Breach of a TPO is an offence, and the fine imposed on an offender may take into account the financial benefit gained by the breach. This might, for example, cover a case in which a landowner illegally cut down trees so as to improve the view from his house and thus increase its value.
Protecting trees: conservation areas
Local authorities can designate as conservation areas “Areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance”. Within the conservation areas, various special controls apply. Trees within a conservation area may be subject to TPOs, but even if that is not the case, a landowner must give notice to the local authority if she wishes to carry out work on a tree within the conservation area, and the work cannot proceed until the local authority has given consent, or six weeks have elapsed. There are exceptions, these being the exceptions which apply to TPOs.
Help from Property Law Advice
For the sorts of issues which arise in practice, and on which we can offer advice, please see our Trees page. If you’d like a quick response, to see whether we can help, please see our Initial enquiry page.
— // —