Problems with trees and hedges
Who owns trees must be established, as it is the duty of the owner to trim back branches which grow over the land of a neighbour.
Trees may sometimes be a shared responsibility when they grow on a shared boundary. There might be restrictions on cutting trees. These will usually be noted in the contract of sale at the time of purchase, so it is always a good idea to check this first. Your lawyer can translate your deeds.
If you have a problem you should speak to your neighbours first, or write to them, asking for the trees to be cut. An offer to pay some of the costs can be helpful. Only if this type of approach fails should you consider legal assistance.
Relationship between neighbouring owners or occupiers
Trees can be the subject of contractual rights on or near a boundary. The contract may be between the landowners or occupiers themselves but stops when one of them no longer occupy the land. There may be an agreement in a registered contract passed before the Royal Court by way of a servitude. A servitude is a right to make use of someone else’s property or to stop a person from making certain use of their own property. The rights continue from one owner to another and are attached to the land rather than to the actual person making the agreement. For example, on the sale of land, a seller may put an obligation on the buyer and their heirs not to allow trees to grow above a certain height within a certain distance of the boundary. Contracts often refer to boundaries by reference to a hedge.
If a tree belonging to one landowner causes damage to another landowner then the owner of the tree could be liable in damages for loss or injury. Negligence will exist where damage which is reasonably foreseeable is caused by a person falling below the standard required by the law. There must be a duty of care, a breach and damage leading to causation.
If a landowner can be shown to be at fault in falling below the standard required and the other conditions are satisfied he could be liable in damages. Any dead or diseased tree places the owner on risk of a claim. If no fault can be shown, no liability would arise.
Occupiers of land owe other neighbouring occupiers of land a duty of care not to create a legal nuisance. Nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. This is often related to excessive smoke, noise or smell but can involve trees. In relation to the owner of a tree bordering a highway where the tree causes damage or injury to users, some fault or negligence would need to be shown.
General principles of English Common Law have been applied in cases of nuisance. Poisonous trees such as yews that grow over a neighbour’s land and poison cattle would create a nuisance.
Coming on to someone’s property without permission and damaging trees would be considered to be a trespass for which damages can be claimed. Trespass without causing damage is not actionable.
There is no duty owed by a landowner to trespassers so if a trespasser is injured by a fallen tree, they would probably not be able to recover damages.
Control of High Hedges
A copy of the Law can be found here.
If you have a problem with the height of a neighbour’s hedge, you will need to show that you have made attempts to resolve the dispute with them. You should keep records of any conversations and approaches made. The fee that must be paid for a complaint made to the Minister for Environment is £350.
Guidance which has been published by the UK Government, entitled “Hedge Height and Light Loss” is available and will be used by the Minister for Planning and Environment to decide whether a high hedge is a problem. You can see the guidance here.
For more information see problems with trees and hedges.