Neighbours' trees

13 Aug 2016 - 15:02 | Version 1 |

Trees commonly cause problems between neighbours in residential areas because of the spread of branches or roots from one property to another. The common law of nuisance or negligence may apply to such problems. A legal nuisance, in general terms, arises where a use of one property causes damage to the neighbouring property or interferes with the neighbour's enjoyment of the property. Legal nuisance can be difficult to establish in other than very obvious cases, for example, where a neighbour's trees shaded a commercial orchard to the extent that the size of the crop was affected.

Negligence arises where a person can establish that he or she is owed a 'duty of care' by the neighbour and the neighbour has breached that duty and damage has resulted. An example would be where a neighbour knows that one of his or her trees is dangerous, but does nothing to prevent the tree falling and damaging the property or person of the neighbour.

These common law remedies can be difficult to pursue because of the cost of court proceedings. Therefore, negotiations between neighbours are often a better option. Mediation services which specialise in neighbourhood disputes can often assist if initial negotiations with your neighbour are unsuccessful, for example the Conflict Resolution Service. It is also beneficial to get professional advice from a tree surgeon about the cause of the problem and the most effective way to remedy it. The neighbours could share the cost of such advice.

It is possible to remove branches or roots spreading from a neighbour's property under the common law right of 'self-help' or 'abatement'. However, if this action is likely to cause irreparable damage to the offending tree, it is not advised as the owner of the tree could then take action for such damage. Where the tree involved is a protected tree under the Tree Protection Act, approval from the conservator would be required if the action taken was likely to damage the tree.

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