Trees and encroachment – getting to the root of the problem

If your property shares a boundary, be it residential or commercial, then overhanging branches can be the source of much strife between otherwise good neighbours.

This article addresses some questions the Property Litigation Team are commonly asked. It is, however, best to seek legal advice in each specific case.

Can a landowner either force his neighbour to cut back an overhanging tree or cut it back himself?

The first step would be to ask the tree-owner to cut back the branches that are encroaching on to your land. If they refuse to do so they cannot be forced. However, the case of Lemmon v Webb (1895) established that that branches overhanging onto the neighbouring land constitute a nuisance and may be cut back by the owner of occupier of the neighbouring land.  This is what is known as ‘abatement’. You are only entitled to cut the overhanging branches back as far as your boundary. The importance of maintaining neighbourly relations should be borne in mind and this step should only be taken if the branches of the overhanging tree are causing some substantial harm.

The branches cut off from the tree are still the tree owner’s property and should be offered back to them. The branches should only be disposed of with the owner’s consent. Before any work is undertaken, it should be checked that there is not a Tree Preservation Order in place and that the tree is not in a Conservation Area. This information can be obtained from the local Council. Whilst the existence of a Tree Preservation Order does not necessarily prevent the branches being cut back further legal advice will be needed if such an order is in existence or it is determined the tree is in a Conservation Area.

Can a landowner remove tree roots which are encroaching onto his land?

As stated in McCombe v Read (1955) the owner/occupier of a neighbouring property may cut the roots of the trees back so far as they are on the neighbour’s side of the boundary. It should be borne in mind, however, that removal of roots of a tree up to the boundary may lead to the tree being unstable. Any work carried out should be done so with reasonable care as if the work is not carried out competently it may lead to tree decay. If the owner of the tree is required to carry out any further works due to damage to the tree then it may be possible for the tree owner to recover the cost of these further works from the person who has removed the encroaching roots.

It is, therefore, unwise to carry out works to cut back encroaching branches or roots other than at a trivial level without first taking professional advice from an arboriculturalist.

Can anything be done about a neighbour’s tree blocking sunlight from a window?

It is commonly believed that there is no ‘right to light’ and as such there would be no grounds for argument against a neighbour whose tree is blocking sunlight. However, theoretically speaking where something on a person’s land prevents light reaching another person’s land that may constitute what is known as a nuisance at law, which may enable redress to be sought. Although there appears to be no reported case of such an action being brought in the context of trees, in principal there would seem to be no reason as to why an argument could not be raised provided it is shown that the window the offending tree is blocking light to did receive light for 20 years prior to the obstruction the tree has caused. This is likely to be more relevant in the case of rapidly growing high hedges. Legal advice should be sought in this scenario.

Conclusion

Regardless of the above, it is always advisable to negotiate with your neighbours rather than undertaking any work unannounced. If neighborly relations have reached a level where negotiation is no longer possible, then solicitors should be instructed to provide a platform for negotiation.

Should you have any queries on the above or require any other property litigation or planning advice please contact Sarah Reardon – sarah.reardon@michelmores.com.