Trees and the Law
The advice given here is for guidance only. It must not be used as a substitute for professional legal advice. Your legal situation will depend on the individual facts of your case and you should always consult your legal advisor if you are in any doubt.
Introduction
The purpose of this leaflet is to give simple guidance on the basic elements of the law as it affects trees.
Owners rights and responsibilities
- Inspections
Landowners are responsible for all trees within the boundary of their property. They have a duty to maintain the trees in a safe condition. To discharge this duty an owner must ensure the trees are inspected regularly for any signs that they are unsafe. The importance of regular, detailed inspections is to minimise the likelihood of damage or injury occurring if the tree or parts of it were to fall. If the risk is high, e.g. a large old tree next to a road, the importance is much greater. An owner without specialist knowledge would be expected to employ a suitably experienced and qualified arboriculturist to inspect them every 1 to 3 years depending on the degree of risk.
- Overhanging branches
Trees that overhang property boundaries may be pruned back by the neighbour to the boundary line but no further. However this is bad practice as it may not enable the principles of good pruning to be applied. It is far better to get agreement from the owner to prune the tree properly. The cut branches must be offered back to the tree owner. If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area you must get written approval from the Borough Council beforehand.
- Trees obstructing the highway
The Highways Act 1980 requires that trees and other vegetation do not obstruct the passage of users. The Highway Authority requires a minimum clearance over any part of a footpath of 2.4 metres and over any part of a road of 5.2 metres. The Highway Authority have the powers to enforce these clearances.
If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area you should consult the Borough Council’s Arboricultural Officer before carrying out any work.
- Planting of trees
Generally trees can be planted anywhere on a property and there is no requirement for trees or hedges to be set back a certain distance from the boundary. However restrictions may exist through other controls such as covenants or planning controls.
- Height of trees
There is no maximum height beyond which tree owners must not allow their trees or hedges to grow. They can be as tall as the owner wishes provided they do not cause damage to adjoining property unless restrictions are imposed through other controls such as covenants or planning conditions.
- Damage by trees
Only if a tree causes actual damage to an adjoining property can the neighbour take any action in law. Actual damage could include branches breaking gutters or dislodging roof tiles and roots causing subsidence to a building. In all cases proof would be required for an action to succeed.
- The right to light
The "right to light" is often quoted in relation to trees cutting out light to adjacent property. Whilst there is an established right in the case of new buildings obstructing light there is no clear precedent that trees cutting out light can infringe a persons "right to light".
Statutory controls on tree work and felling
- Tree Preservation Orders (TPOs)
TPOs are made under the Town and Country Planning Act 1990 in respect of trees which are of particular amenity value. A copy of the order is served on the owner of the tree and other people affected by the trees e.g. adjoining landowners.
It is an offence to damage, cut down or prune any tree that is subject to a TPO without the written consent of the Borough Council. A written application must be made to the Council detailing the exact nature of work required. The Council’s arboriculturist will usually visit the site to decide if the works are appropriate. Applications must propose work which is in accordance with good arboricultural practice. The Council’s arboriculturist can provide advice on good tree care practice.
- Conservation Areas
Trees in Conservation Areas over 75mm in diameter measured 1.5 metres above the ground are also protected and it is an offence to damage, cut down or prune such trees without giving written notice of the intended works to the Borough Council. The law requires owners to give six weeks written notice during which time the work cannot be carried out. If the Council are unable to approve the work detailed in the notice it must make a Tree Preservation Order to protect the tree.
- Dangerous trees
In the case of both TPO's and Conservation Areas there are exemptions to the need to make a prior application if the tree is imminently dangerous. In these cases work to make the tree safe may be carried out immediately. You should contact the Borough Council by telephone before you do the work.
Any work must be limited to that required to remove the immediate danger. The burden of proof is on the tree owner and the person doing the work to prove that it was necessary for urgent safety reasons. This can be very difficult after the event and professional arboricultural advice should be taken before carrying out any urgent works. It would also help if photographs were taken of the tree and the defects which create the need for the emergency work.
If an applicant disagrees with the decision of the Council in respect of an application to carry out work to protected trees, they have a right of appeal to the Secretary of State for the Environment.
Work which is not exempt and is carried out without formal notification or within the six week period without the written consent of the Council is illegal.
The Borough Council may prosecute offenders and fines of up to £20,000 for each tree may be imposed by the Magistrates Court in the event of offenders being convicted of an offence. If proceedings are instituted in the Crown Court fines are unlimited. There is a duty to replace any tree removed without permission.
N.B. The existence of a Tree Preservation Order does not alter the owner’s responsibility to ensure his/her trees are safe and managed in accordance with good arboricultural practice.
- Felling Licences
Felling Licences, administered by the Forestry Authority, also control tree felling. If an owner wishes to cut down more than 5 cubic metres of timber (about 5 mature woodland trees depending on size) they must obtain written permission from the Forestry Authority.
Further Information
To find out more about specific issues please use the following telephone numbers:
Tree Preservation Orders, Conservation Areas, Information on the care of protected trees
The Arboricultural Officer
Environment & Regeneration Directorate
Warrington Borough Council
Hawthorne Avenue
Woolston
Warrington, WA1 4AN
Tel. 01925 442726 or email landscape@warrington.gov.uk
Felling Licences
The Forestry Commission
North West Conservancy
Area Office
Linmere
Delamere
Northwich, CW8 2JD
Tel. 01606 889912, Fax. 01606 301081
www.forestry.gov.uk
Information on arboricultural consultants and contractors
The Arboricultural Association
Ampfield House
Ampfield
Romsey
Hants., SO51 9PA
Tel. 01794 368717, Fax. 01794 368978 www.trees.org.uk
