Tree and Garden Advice

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.

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).

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.

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.

For more information on maintaining your garden and trees visit www.gardenlaw.co.uk