As an arborist it is important to be aware of the legal constraints or precedents with regard to trees. Clients in turn can be made aware of them and can then take appropriate action.
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Trees can often be a cause of dispute, common issues include:
Trees & boundaries, light, overhanging branches, poisonous trees, views, nuisance, negligence.
Focus is directed onto WHO HAS RESPONSIBILITY OR DUTY to look after the land / tree.
Trees grow wherever the conditions permit, they have no comprehension of boundaries.
Boundaries are not always clearly defined. A fence, hedge or wall does not always delineate a true boundary.
English Law recognises that there are many types of land ownership:
Freeholders, tenants, lease’s, covenants, custodians, highways, crown, Forestry Commission, Parochial Church Council, Local Authorities, County Councils etc
The basic principle is : any plant, regardless of type, is part of the land in which it stands, whether deliberately planted or self-seeded. The plant belongs to the owner of the soil surrounding the base of the stem.
Trees and boundaries
A has no responsibility to prevent branches growing into B’s land.
A has no obligation to clear leaves that fall onto B’s land.
B can prune branches back to the boundary. (as long as it is done from B’s land)
B does not have to give prior notice. (would be polite and neighbourly to do so though)
A or B may not enter each others land without consent.
If B were to prune the tree in such a way that the tree became unstable, B could be liable in the event of the tree falling and causing injury or damage.
Debris & arisings from the tree belongs to A. (and should be offered back)
A owns all the fruit in the tree and on the ground on their land and B’s land.
A has no obligation to remove the fallen fruit from B’s land.
A cannot enter B’s land to collect the fruit without B’s consent.
B will be committing theft if they take A’s fruit without consent.
If B placed a greenhouse under the falling fruit of A’s tree then its B’s own problem.
Tree roots do not respect boundaries.
Roots crossing boundaries may be cut back.
The tree owner may have a claim against the neighbour if the tree dies or falls as a result of cutting.
This is the most simplistic explanation of common law rights, complications arise when tree roots and branches cross boundaries and cause damage, whether direct or indirect, or when trees fail and cause damage.
In common law, direct or indirect damage caused by a tree could be known as an actionable nuisance which would come under ‘The Law of Tort’
ie: A civil wrong or injury arising out of an act or failure to act, independently of any contract, for which an action for damages may be brought.
The essential factor in determining liability for nuisance is -
wether the damage is of such a kind as a reasonable person should have foreseen it.
The most important piece of legislation a tree owner should be aware of is -
‘The Owners & Occupiers Liability Act 1957 & 1984’ this concerns a tree owners ‘Duty of Care’.
The person responsible for any tree has a duty, known in law as ‘duty of care’ to take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to cause harm.
The duty is owed to occupiers, visitors and (as amended in 1984) trespassers of:
Those using ‘highway’ land
Land under contract
Whilst trees are not in themselves dangerous things, their owner has a duty to others to ensure that they are not endangered by his / her negligence.
Negligence may be described as omitting to do what a prudent or reasonable person would do, or doing what a prudent or reasonable person would not do.
Where one fails to take any necessary action or undertake any action, resulting in harm to people, animals or property, and if that harm is foreseeable then you may be found negligent.
Negligence may include:
- Failing to have trees inspected on a regular basis.
- Omitting to remedy a problem that has been draw to ones attention.
- Failing to identify a foreseeable problem during an inspection.
- Undertaking incompetent pruning.
- Destabilising a tree by root severance.
A tree owner is not expected to have the knowledge of a qualified arboriculturist, but is expected to appoint a competent person to act on their behalf.
One would not be found negligent in the event of an ‘Act of God’:
- Failure of a tree after being subject to a ‘reasonably careful inspection’ and appropriate action had been taken
- Failure of a tree as a result of a disease or weakness that would not have been visible on a proper examination
- Failure of a tree as a result of exceptionally severe weather
The information provided is intended to help users of the site. The information is not legal advice so please consult a lawyer if you want professional advice appropriate to your particular situation.