Branching Out: dealing with encroaching tree branches
Rollits property dispute resolution team specialises in property based disputes, including boundary disputes, right of way disputes and trespass and nuisance claims involving private individuals, body corporates and government departments.
One particular problem that we are asked to advise upon, particularly in the spring and summer months, concerns trespass and nuisance caused by neighbouring trees. Overhanging branches can be a source of considerable frustration and angst. Branches can make parts of a garden unusable due to casting a large shadow over the lawn or cause pose a risk of damage to human health and property.
For the most part, when concerns regarding overhanging branches are raised with a neighbour, the neighbour will be more than happy to address this issue. Unfortunately, there will always be someone who is not prepared to adopt a common sense approach.
Should this happen, in the first instance, it is important firstly to check whether the tree is subject to a Tree Preservation Order ("TPO"). The local authority should be asked to confirm whether the tree is protected by a TPO. If so, works cannot simply be carried out upon the tree (this is the case even if the neighbour is happy to undertake works to the tree), rather strict rules covering TPOs will need to be complied with. Those rules are not covered here but we will be happy to advise and assist landowners regarding these rules.
If the tree in question is not covered by a TPO, that does not mean that a landowner can access a neighbour`s land and cut back the tree as they see fit. Whilst rights do exist under the Access to Neighbouring Land Act 1992 to gain access to a neighbour`s land for particular purposes, the Act could not be relied upon in these circumstances.
However, whilst not permitted to access a neighbour`s land without that neighbours express permission, a landowner is permitted to cut back any encroaching branches from a neighbour`s tree up to the boundary line. If he or she does so, they must then place all the clippings back over the fence next to the tree in a neat and tidy manner.
A landowner cannot prune the tree or undertake any other work to the tree if these works would destabilise or kill the tree. If the owner of the tree is not prepared to undertake any works to their tree to address a landowner`s concerns about overhanging branches, it is likely that if any self-help works are carried out to the tree and the tree subsequently shows any adverse effects, even if the deterioration in the tree is not actually related to the pruning works, a civil claim will be brought by the tree owner.
Particularly when dealing with substantial overhanging branches, it is sensible for advice to be obtained from a specialist tree surgeon. The tree owner could then be provided with an estimate of the cost for the tree surgeon undertaking the necessary remedial work to the tree, the tree owner being informed that reimbursement of these costs will be sought from the tree owner if the tree owner does not promptly address the encroachment issue.
If the tree surgeon advises that remedial works are needed to the tree on the tree owner`s side of the boundary line, permission to access the land for the purposes of enabling such work to be undertaken should be sought. An explanation as to why access is needed should be also be provided. If the tree owner refuses to allow the required access, it may be necessary to apply to the Court for an injunction to enable access to the tree owner`s land and prevent its reoccurrence and/or to obtain damages for any loss suffered.
Neighbour disputes can become extremely costly. Adopting a common sense approach at the outset, even in the face of hostility from a neighbour, can help to avoid a protracted dispute and provide some protection against adverse costs orders if proceedings ultimately follow.
Posted on: 09/08/2012
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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