Difficult trees in England: going down the legal avenue

Article 26 October 2021 Experience: Real estate

Whilst trees can enhance the beauty, character and environmental credentials of an area, it is an unfortunate truth that they can also pose a nuisance to property owners.

Tree subsidence

A common problem is tree-related subsidence, which occurs when tree roots affect the sub-soil. The sub-soil shrinks in the summer when moisture is removed, and expands in winter when moisture is replaced. This cyclical movement can cause damage to the building above in the form of cracking through the brickwork and internal plaster.

Of course, there may be other explanations for the damage and it is sensible to check for alternative causes such as issues with the drainage system or the depth of the building foundations.

If the relevant tree is owned by a neighbour or the local authority, then you may have a claim in nuisance against that party, and may be able to force them to better manage or even remove the offending tree. It may also be possible to obtain compensation for damage and the costs of remedying the damage to your property. You will usually need to provide evidence that the tree is an effective and substantial cause of damage, which may involve obtaining site investigation and / or level monitoring reports. Local authorities often have a strategy for controlling trees and possible tree-related subsidence, which might involve pruning (or ‘pollarding’) trees in risk areas regularly, and so you may be able to persuade the council to take action without having to obtain evidence of causation. However, should the situation become litigious, it is possible to seek to obtain an injunction from the court, potentially even for the removal of the relevant tree.

Dangerous trees

Another common problem is where a neighbouring tree poses a risk of falling, causing damage your property. The general principle is that no-one is responsible for damage caused by adverse weather, but where an owner knows or should know that a tree is rotting, diseased or likely to cause damage, then it may be possible to sue the tree owner for failing to act to protect against an obvious risk. In such a case, you would need to show that the tree was likely to fall regardless of the weather. You may need photographs of the tree’s precarious situation and copies of any correspondence with your neighbour.

Overhanging branches

You are entitled to remove overhanging branches as long as this can be done without trespassing onto neighbouring property. It is not necessary to obtain permission from your neighbour but technically you should offer any pruning’s back.

However, trees which are protected by a Tree Preservation Order or which are in a conservation area generally cannot be pruned without obtaining consent from the local authority.

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