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Legal issues relating to trees

February 1, 2021 | Articles
Legal issues relating to trees

Trees can provoke a surprising number of legal disputes which frequently lead to either civil or even criminal litigation.

For example:

  • Disputes over the ownership of trees and other boundary features
  • Encroaching roots or overhanging branches causing damage to property (trespass and nuisance)
  • Damage by trees that have fallen down
  • Prosecutions for breach of Tree Preservation Orders

Ownership of trees & boundary disputes
It may be the dispute is between neighbours about who even owns a tree or trees in the first place? The answer will depend on looking at the nature of the underlying property ownership – as trees are not like a physical object or item that can be independently owned. Often, trees will be placed along a physical boundary but there may be a dispute about whether the tree-lined physical boundary represents the true nature of the property ownership.

Encroaching roots or overhanging branches causing damage to property
Claims under this head. which are generally in the tort of nuisance, can often provoke a hot dispute which expert evidence required together with careful planning of the correct legal approach. The outcome of such cases is often in the balance.

  • Case example: In a leading case known as Delaware Mansions (2001) the claimant brought a claim for £570,373 – which represented the cost of underpinning work that had to be carried out because of the encroachment of tree roots of a plane tree belonging to the defendant highway authority. The defendant had not, as requested in 1989 removed the tree. It had merely carried out some root pruning. In 1990 the claimant, on further advice, carried out the underpinning. If the Council had removed the tree the cost of repairing the building would have been a mere £14,000. The Council were eventually found liable for these extremely high damages, which were clearly avoidable on the facts.
  • Case example: In the recent Berent case (2012) the claimant brought a claim in nuisance in respect of tree roots that had grown under her property. The damage to the property was caused in 2003/2004 but the trees were only removed in 2011. The trial judge dismissed the claim on the basis that the damage was not “reasonably foreseeable.”

Damage caused by trees that have fallen down
It is often found that perfectly healthy trees can be toppled in severe weather. On the other hand, untreated inherent defects can lead to dangerous incidents. What is the landowner’s liability if the tree has caused damage to property or other persons? What is the liability for the landowner if the tree has caused someone’s death? Landowners will often be sued for large sums in the tort of negligence (including so-called “Rylands v Fletcher type cases”). The key question is whether the landowner has breached the duty of care that he had in relation to the tree. Thus, while the tree may have caused real damage it may be possible to keep the level damages down or to dismiss the claim altogether. Such cases may often involve trees fronting a highway.

TPO (Tree Preservation Order) prosecutions
Prosecutions for work carried out in breach of a Tree Preservation Order (known as “TPO”) brought under s.210(1) or s.210(4) of the Town and Country Planning Act 1980. Has the local authority got a valid TPO under which to prosecute the defendant? It is also a surprising fact that some species, despite being commonly thought of a “trees”, do not qualify under the Act as a protected tree. Are the local authority wrongly prosecuting under the more serious offence of the two offences under s.210(1) which carries a maximum £20,000 fine? It is also now possible that local authorities can pursue “Proceeds of Crime” applications against persons or companies (frequently developers) convicted. For example, if the value of properties has been increased because trees obstructing a nice view have been illegally felled, then the local authority may try and bring proceedings to seize this value. It is important to be clear at the outset as to what the possible ramifications may be.

High Hedges
There is a statutory code relating to High Hedges to be found in Part 8 of the Anti-Social Behaviour Act 2003 which enables local authorise to serve notices requiring work to be carried out.

Other issues arising where trees are protected
Issues may also arise in relation trees that are within Conservation Areas, Sites of Special Scientific Interest, on common land or where the tree (dead or living) is the habitat of rare species of bird, animals or insects.

Practice Areas: Property

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