What Can I Do About My Neighbour’s Nuisance Tree?

Trees can be wonderful though they can also be a terrible nuisance in gardens, particularly small gardens and particularly if they are allowed to grow too large. If your enjoyment of your property is adversely affected by a tree belonging to a neighbour, is there anything you can do?
Your options depend on a few factors – whether the tree actually encroaches onto your land, what type of nuisance it is causing and whether it is protected by a tree preservation order.

Trees Encroaching On Your Land

When you own a property, as well as owning the surface of the land and the buildings you also own, own the airspace above (though limited to a height consistent with the reasonable use and enjoyment of the property, so you can’t stop planes from flying over!) and all of the land below to the depths of the earth.

This means that if a tree’s branches overhang into your garden or its roots extend under your land you are entitled to remove them as far as the boundary line provided they are not protected by a tree preservation order.

This is because their presence on your land is considered a trespass and they do not need to be causing any actual inconvenience.

In addition, if your property suffers any damage as a result of the encroachment, for example damage to the foundations caused by roots, you will usually be entitled to damages for the cost of any remedial work necessary to put your property back to the state it was previously and if necessary to strengthen the foundations against further attack from the same tree.

Tree Preservation Orders (TPOs)

A tree preservation order is made by a local authority to protect certain trees, usually for the sake of the amenity of an estate. Cutting or maiming a protected tree (such as by cutting back roots or branches even if you don’t actually kill the tree) can constitute a criminal offence. If you do this and the local authority prosecutes you are liable to be fined for the cost of restoring the tree or replacing it with another and it is surprising how expensive this can be.

So what if a protected tree encroaches on your land? There are some exceptions to the rule that it must not be damaged. They include where it is dying or dead, where it has become dangerous or “so far as is necessary for the prevention or abatement of a nuisance”.

This last part is interesting and according to the High Court this exception applies only where “there is an actionable nuisance resulting from actual or imminent damage”. What this means is that if a protected tree encroaches on your land but there is no damage or threat of damage, you are not permitted to injure it. If on the other hand cutting back or even killing the tree is necessary to avoid damage or further damage then you are, provided what you do is necessary. In this context “necessary” does not mean there must be no alternative, only no alternative that is reasonable in the circumstances. For example if a tree’s roots are attacking your foundations and the two options are cutting back the roots or spending thousands of pounds shoring up the foundations, you would not be obliged to take the more expensive option.

The local authority keeps a map of protected trees and before you carry work to any tree you consult them to ensure it is not protected.

Trees That Block Light From Your Land

If a tree does not encroach on your land but does block light you are not permitted to damage it, however you may be able to complain to the council under the provisions of the Anti-social Behaviour Act 2003 if the issue is with a hedge. A “high hedge” is defined as “so much of a barrier to light or access as (a) is formed wholly or predominantly by a line of two or more evergreens; and (b) rises to a height of more than two metres above ground level”. If successful the council will serve a notice on the neighbour requiring the height to be reduced. If you do complain you must be able to demonstrate that you have attempted to resolve the matter privately otherwise the council can reject your complaint.

Another option is where you have a “right to light”. This is a difficult subject and cases are difficult (and expensive) to argue, however the basic premise is that if your property has, for at least the last 20 years, received the benefit of natural light “across” a neighbouring property then by prescription you acquire a legal right to do so. If a neighbour subsequently blocks that light by, for example, allowing a tall tree to grow which causes shade, it may be possible to obtain an injunction to force the tree to be cut back or removed, or to be awarded damages for loss of amenity, if it is possible to calculate the loss in terms of money.

With the introduction of the feed in tariff and the subsequent growth in popularity of solar panels cases regarding rights to light look set to become more common, which will develop this area of the law. It must be remembered however that a right to light will probably not arise until the panels are installed therefore if, within 20 years, the neighbour obstructs the light a claim may fail on the basis that there was no right in existence to infringe. There is a possibility perhaps that a claim could be brought in estoppel but it will be interesting to see this tested in the higher courts.

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