Trees and Neighbours

By Tina Hwang

“The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way. Some see nature all ridicule and deformity…and some scarce see nature at all. But to the eyes of the man of imagination, nature is imagination itself.” – William Blake

It is a lovely sentiment, but also an explanation of why trees form such a ready source of tension between neighbours. Planted clearly within one property, trees grow, often over and into another property. While the owner who planted it sees only a joy, the owner in receipt of unwanted growth sees “only a green thing that stands in the way.” After an exchange of views and an attempt to resolve matters, these opposing perceptions often result in legal disputes. There are options in relation to the resolution of such disputes.

Disputes between neighbours about overhanging, overgrown or encroaching trees are surprisingly common. The process of removal or dispute resolution between neighbours in regards to trees can sometimes be costly and the first and most agreeable option to resolve a dispute should be an open discussion with your neighbour with a view to reaching a mutually beneficial solution.

When an open discussion does not obtain a mutual resolution then another method without resorting to formal legal recourse is Mediation and Arbitration. Mediation is where a mediator helps to negotiate a solution while an arbitrator will simply impose a solution. It should be noted however that neither party can be forced to take part in either of these processes.

When branches overhang or roots encroach from your neighbour’s property, you can cut back the parts that encroach over the barrier/ border on to your property. Be careful of protected trees as these have restrictions from local council on their maintenance. Your neighbour isn’t responsible for the cost of removing branches or roots unless they are causing damage. If the tree is causing damage to a fence, for example, you can remove that part of the tree that is causing the damage and then go to the District Court or Disputes Tribunal to claim the cost of removal and repair. Only go to the District Court or Disputes Tribunal if you have tried to make arrangements with your neighbour and they have refused and this is to apply to the District Court for an order to have the tree removed with the cost claim against the neighbour to pay the cost.tree-dispute

The Property Law Act 2007 (sections 333 to 338) gives a District Court Judge the power to order an occupier of land to remove or trim trees on the property where trees are unduly obstructing a view or are an actual potential risk to life, health or property. The District Court will consider whether it is fair and reasonable to remove or trim trees to prevent:

• A current or potential danger to your health, life or property, or to that of anyone who’s lawfully on the property;

• Any undue obstruction of your view;

• Any undue interference with the use of your land for growing trees or crops;

• Any undue interference with use or enjoyment of you land caused by fallen leaves, flowers, fruit or branches, or by shade or interference with light;

• Any undue interference with your drains or gutters caused by fallen leaves, flowers, fruits or branches or by tree roots;

• Any undue interference with your reasonable enjoyment of your land as a resident;

• The Court can’t make the order if it would cause your neighbour more hardship than you’d be caused if the Court didn’t make the order;

• If the Court does make the order, it can include any specific conditions that it thinks are appropriate. For example, requiring your neighbour to repair, or compensate you for, any damage done to your property through carrying out the work. The Court can also require you or your neighbour, or both, to give security for any expense or damage.

The person applying for the court order must bear the reasonable cost of carrying out the work. However, the Court may think that, because of your neighbours conduct, it’s fair to order them to pay some or all of the cost.

There are extensive powers given to local authorities to take necessary corrective action where trees encroach onto public land. Section 133 of the Public Works Act 1981 allows for the removal of trees that obscure visibility or interfere with public works. Section 355 of the Local Government Act 1974 gives councils the power to require removal or trimming of trees “overhanging or overshadowing the road” where this is necessary to prevent obstruction or danger to traffic or damage the road, channel ditch or drain.

Where trees are grown on a common boundary, they may constitute a “live fence” for the purposes of the Fencing Act 1978. Subject to the provisions of the Fencing Act, adjoining neighbours are required to contribute equally to the cost of maintaining this type of fence.

This information was accurate as at December 2016

We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and it should not be relied upon in individual cases. Professional advice should always be sought before any decision or action is taken.