Trees on Privately Owned Property
Some trees located on private land may be protected either by Tree Preservation Orders or because the property lies within a Conservation Area. It is a criminal offence to carry out works to protected trees without prior consent or notifying the Council. Some trees on development sites are also protected by specific conditions on planning permissions to ensure their protection during development.
This is not a definitive guide to the law and expert legal advice should be sought in civil disputes.
Every tree owner has a general duty of care to ensure their trees do not pose an unacceptable risk to other people on or adjacent to their land. The landowner will only be liable for injury or damage caused by trees if they are found to be negligent.
The landowner must take reasonable care to regularly inspect their trees and undertake essential work such as removing deadwood where it presents a risk to persons or property.
If you are in doubt about the condition of your tree you should seek advice from a qualified Tree Surgeon or Arboricultural Consultant
Legislation - Local Government (Miscellaneous Provisions) Act 1976
The Local Government (Miscellaneous Provisions) Act 1976 – Sections 23 & 24 [Dangerous Trees] gives the Council discretionary powers in respect of dangerous trees located on land in private ownership. The legislation is normally used as a last resort where the owner of a tree has failed to do anything about a dangerous tree where its condition presents an imminent danger of harm to a person or property.
Request to Act
Following a written request to the Council from an adjoining landowner to make the tree safe the Council will carry out a site visit and establish whether the relevant circumstances apply and if necessary instigate the appropriate action.
Serving a Notice
If the Council considers the tree(s) to be imminently dangerous, a Notice will be served on the owner or occupier of the land upon which the tree is situated. The Notice will identify the relevant tree(s), condition, why the action is required and the minimum amount of work that is necessary to make the trees safe.
The Notice will also state the time period for the completion of the work, which must be not less than 21 days from the date of the Notice and that if the works are not undertaken, the Council can carry out the work and recover any reasonable costs.
Right of Appeal
Any person served with a Notice has a right of Appeal. There are four grounds of Appeal:
- the person is neither the owner or occupier of the land upon which the tree(s) stand.
- That the tree(s) are not in the condition specified. And likely to cause imminent damage to persons/property.
- That there are less expensive steps than those specified in the Notice to make the tree safe.
- It would have been fairer to serve the Notice on another person who is the owner/occupier of the land.
Overhanging branches and encroaching roots
There is no legal obligation for a tree owner to cut back growth from a neighbours property. However under Common law tort of nuisance an affected neighbour has the right to cut back roots or branches that encroach onto a neighbouring property back to the boundary of the land owned by the person abating the nuisance without the neighbours consent (with the exception of protected trees i.e. trees included in a Tree Preservation Order or situated within a Conservation Area)
The person abating the nuisance has a duty to exercise reasonable care in carrying out work as failure to do so may lead to liability in negligence (for example where the removal of roots make a tree unstable).
Any work must also be carried out from the neighbouring property as crossing the boundary may be deemed as trespass.
Any parts of the tree removed remain the property of the tree owner and should be offered back to the owner.
It is advisable that any person who intends to carry out pruning of a neighbours tree to abate a nuisance should seek professional advice from a Tree Contractor or Consultant.
Right to Light and to a View
As there is no clear precedent of a right to light or a view in law there is no legal obligation for a property owner to prune or remove their trees for reasons of light loss to a neighbouring property. A right to light may be earned by which a person must have enjoyed light uninterruptedly to a window or other opening associated with a dwelling for 20 years before the obstruction appeared. There can be no right to light in respect of a garden or other open land.
In cases where a neighbour is affected by fast growing evergreen hedges The High Hedges Act may be applied in some cases to require the owner of an evergreen hedge to reduce its height.