Trees and the Law

The purpose of this web-page is to give simple guidance on the basic elements of the law as it affects trees.

The advice given in this web-page is for guidance only. It must not be used as a substitute for professional legal advice. Your legal situation will depend on the individual facts of your case and you should always consult your legal advisor if you are in any doubt. The Citizen Advice Bureau website may also be useful www.citizensadvice.org.uk .

OWNERSHIP

A tree is usually yours if its trunk grows on land you own. Trees growing exactly on a boundary are usually the joint property of the two owners. 

INSPECTIONS

Landowners are responsible for all trees within the boundary of their property. They have a duty to maintain the trees in a safe condition. To address this duty an owner must ensure the trees are inspected regularly for any signs that they are unsafe.
 

The importance of regular, detailed inspections is to minimise the likelihood of damage or injury occurring if the tree or parts of it were to fall. If the risk is high e.g. a large old tree next to a road, the importance is much greater.  An owner without specialist knowledge would be expected to employ a suitably experienced and qualified arboriculturist to inspect them every 1 to 3 years depending on the degree of risk. A list of Arboricultural Association Arboriculturist can be found on their website www.trees.org.uk .

DANGEROUS TREES

In the case of both TPO's and Conservation Areas there are exemptions to the need to make a prior application if the tree is imminently dangerous. In these cases work to make the tree safe may be carried out immediately.

You should contact the District Council by telephone before you do the work. Any work must be limited to that required to remove the immediate danger. The burden of proof is on the tree owner and the person doing the work to prove that it was necessary for urgent safety reasons. This can be very difficult after the event and professional arboricultural advice should be taken before carrying out any urgent works. It would also help if photographs were taken of the tree and the defects which create the need for the emergency work.

If the work is not exempt from the relevant legislation an application must be made for trees protected by a TPO, or a Section 211 Notice served for trees within a Conservation Area.
N.B. The existence of a Tree Preservation Order does not alter the owner’s responsibility to ensure his/her trees are safe and managed in accordance with good arboricultural practice.

ENFORCEMENT

The District Council may prosecute offenders and fines of up to £20,000 for each tree may be imposed by the Magistrates Court in the event of offenders being convicted of an offence. If proceedings are instituted in the Crown Court fines are unlimited. There is a duty to replace any tree removed without permission.
  

OVERHANGING BRANCHES

If trees overhang a boundary they can cause problems. If you are on the receiving end of this you are usually entitled to remove the overhang back to your boundary; so long as it does not damage the rest of the tree.

You must return the material to the owner of the tree. An amicable agreement is by far the best way to approach this. Before you carry out work an overhanging tree or hedge, it would be a very good idea to do the following:

1. Contact the owner and make sure they know you are going to do the work. It will almost always be easier if you can co-operate with them.

2. If the works are anything more than minor works then you should consider employing a competent person to do the work for you. Don't risk killing the tree and facing a claim for compensation. Get the contractor to write down, preferably on headed paper, a clear description of exactly what he is going to do and what its effect will be. This is especially important if you think the neighbour might accuse you of deliberately trying to damage the tree/hedge or kill it. If you can show that you used a qualified professional this will be a good defence against such accusations.

3. Make sure you know exactly where your boundary is, and do not go over it or do anything to any tree or hedge beyond it. If there is any dispute between you and your neighbour about the exact location of your boundary you should seek legal advice before you proceed, otherwise you risk prejudicing any future action against your neighbour to establish the boundary itself.

4. If the offending tree is interfering with the fabric of your buildings or other structures, contact your insurers and ask their advice before going any further. They might be able to do the negotiations for you.

5. Be sure that the tree is not protected by a TPO or planning conditions, or is in a Conservation Area. This is your responsibility, regardless of who owns the tree (even if you don't know who owns it). If any of these are true you must apply for consent (or notify them of your intention 6 weeks beforehand if in a conservation area) from your local planning authority before doing any work.

FELLING LICENSES 

Felling Licenses, administered by the Forestry Authority, also control tree felling. If an owner wishes to cut down more than 5 cubic metres of timber (about 5 mature woodland trees depending on size) they must obtain written permission from the Forestry Authority.  

TREES OBSTRUCTING THE HIGHWAY

The Highways Act 1980 requires that trees and other vegetation do not obstruct the passage of users. The Highway Authority requires a minimum clearance over any part of a footpath of 2.4 meters and over any part of a road of 5.2 meters.

The Highway Authority (Gloucestershire County Council) has the powers to enforce these clearances. If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area you should consult the District Council’s Sustainability Team on 01594 812331/2329 before carrying out any work.

For trees affecting the highway or on highway land (Roads, Footpaths and roadside verges) please contact:
 

Gloucestershire County Council: www.gloucestershire.gov.uk / 08000 514 514 / highways@gloucestershire.gov.uk

PLANTING OF TREES

Generally owners can plant trees anywhere on their property and there is no requirement for trees or hedges to be set back a certain distance from the boundary.

Restrictions may exist through other controls such as covenants or planning controls. It is worth considering how high a tree will grow and what it’s affect may be on the surrounding properties.

HEIGHT OF TREES

There is no maximum height beyond which tree owners must not allow their trees or hedges to grow.

They can be as tall as the owner wishes provided they do not cause damage to adjoining property unless restrictions are imposed through other controls such as covenants or planning conditions.

RIGHT TO LIGHT

The ‘right to light’ is often quoted in relation to trees cutting out light to an adjacent property.

Whilst there is an established right in the case of new buildings obstructing light, there is no clear precedent that trees cutting out light can infringe a persons ‘right to light’.
 

Where there is an evergreen hedge blocking light, it may be considered under Part 8 of the Anti-Social Behavior Act. 

DAMAGE BY TREES

Only if a tree causes actual damage to an adjoining property can the neighbour take any action in law, whether this be damage caused above or below ground level.

Actual damage could include branches breaking gutters or dislodging roof tiles and roots causing subsidence to a building. In all cases proof would be required for an action to succeed.

If you are concerned that a tree may be damaging your property we would advise that you speak to your insurance company to ascertain a course of action.