Root Cause - how trees can cause disputes and damage to property

A matter of interest to all lettings agents and all those with an interest in the land, is trees.  Like pets, they are fine until they become a problem.  Any new development will see young saplings planted by frenetic gardeners with little or no regard to what will happen when the trees mature with their roots embarking on a never ending quest for water and nutrition.  Recent cases of acrimonious and costly neighbour disputes over subsidence claims and leylandii hedges underline the need for at least a passing knowledge of the law.

Tree Law

A tree or shrub belongs to the owner of the land on which it grows even if its branches or roots go over or under adjoining land. This includes the branches and the fruit of any tree or shrub (and even windfall apples etc.).  Falling leaves and fruit still belong to the owner of the tree or shrub, although the law does not require the owner to come and sweep up the leaves or pick up the fruit. Having said that, if falling leaves block a gutter, which results in water damage, the owner of the tree could be sued for damage.

Branches

Branches of a tree, hedge or bush which overhang an adjoining property may be trimmed back to the boundary (but no further) since, technically, the overhang of these branches constitutes trespass.  However, the trimmings belong to the owner of the tree and should, therefore, be returned.  Good neighbourliness would suggest that one should ask first before just throwing them over the hedge as the owner may be perfectly willing for his neighbour to dispose of them.  This right will be limited if the property is in a Conservation area, area of outstanding natural beauty or where a tree is subject to a Preservation Order (where permission needs to be obtained from the local authority in order to trim or prune).

Roots

Like branches, roots that grow from your land onto a neighbours are trespassing. Your neighbour can chop the roots along the boundary line and does not need your permission to do so.

 

A tree's roots can cause damage to neighbouring property either directly or indirectly.  Roots grow and penetrate under foundations and may displace them by direct action.  Light structures with shallow foundations are most likely to suffer, e.g. garages, porches and boundary walls.  Equally, roots of trees planted in clay soils can cause shrinkage by indirect action.  In summer, this can produce considerable subsidence leading in turn to cracks in walls and floors.  In winter, with additional rainfall and less growth and evaporation, the soil retains moisture, resuming its original state and pushes the cracks together (heave) - an effect which can be equally damaging.

There are various methods used to monitor whether subsidence is active. A DIY technique is to fix stamp edge paper, or something similar, across the interior cracks and waiting a few seasons.  Alternatively, a surveyor can be employed who will use more exacting methods to monitor whether movement is active (see photo above).

Tree Nuisance

Roots can often cause substantial physical damage to a nearby property. An example is provided by a case decided in 1940(1).  The Butlers and McCarthys lived in neighbouring properties in Green Lane, Eltham, opposite a sports ground owned by the Standard Telephone Company in which the Company had planted a row of poplar trees.  By 1939 they had grown to a majestic 40 feet and were, according to the Judge, "extremely fine specimens".  While growing, the roots sucked moisture from the clay soil under the houses, leading to subsidence and cracks in the walls.  The Company argued that it could not be liable as it had no reason to realise the trees were causing damage.  That defence was rejected. Anyone who plants trees ought to appreciate their destructive potential.

The common law is clear as to the cause of action; it is private nuisance, not trespass(2).  Even if the trees sow themselves, the owner of the land on which they grew would be liable if they spread and caused damage(3).
In a more recent case, it was ruled that even if the damage from the ingress of the roots occurred prior to the freehold interest being obtained, the tree owner will be liable(4). Here, the local authority was aware of the nuisance caused by the roots of a tree, but refused to take remedial action.

Tree removal

So, what is the procedure if a tree, or a number of trees, are causing damage to property, or threatening to cause damage or nuisance to the owner's own, or a neighbour's property? 
The neighbour may, of course, precipitate action by seeking a temporary injunction requiring the tree, or other vegetation, to be removed.  If it is accepted that the tree, or other vegetation, is causing the damage and it is not due to settlement, building additions, or other causes, the injunction may be resisted by an undertaking to remove, lop and generally manage the offending tree(s) so that the source of the damage is abated, provided the necessary permission is obtained from the local authority. 
Even if the offending tree offers considerable local amenity, or aesthetic value, the court is likely to order its removal.  In Elliott v Islington London Borough Council(5), a mature chestnut was ordered to be removed as the roots were damaging the claimant's boundary wall.  A plea by the local authority that the offending roots could be diverted and the damage abated, was rejected.

Subsidence

Certain trees are more likely to cause problems than others as they make greater demands on the soil for water, and roots are capable of penetrating to significant depths.  The zone of drying, and therefore of shrinkage, can extend to a substantial area both around and under the tree or vegetation.
It is said that a mature oak may extract as much as 200 gallons of water per day from the soil in the height of summer.  Oak, poplar, ash and willow are generally regarded to pose the greatest risk having the potential to cause subsidence damage if they are nearer than a distance equal to their height.  Other species of tree can have a similar damaging effect - especially when planted on shrinkable clay soils in close proximity to a building, boundary wall, drain or paving.

It is generally thought that there is a safe distance between tree and building beyond which damage is unlikely to occur.  This is often taken as the expected maximum height of the tree, but this should be regarded only as a rule of thumb.  New trees should be planted no closer than the recommended distance having regard to the likely maximum height of the species on maturity.  The Building Research Establishment provides a table for the main species of tree, giving tree heights and recommended distances(6).  Some examples are given in the inset box overleaf.

 

Bushes and hedges are equally avaricious in their search for water, with mulberry and blackberry often blamed as the culprits when drains crumble, or cease to function.  While their roots are notorious, it is generally only when there is a water source, brought about by leaks or cracks, that they gain entry and cause considerable destruction to the system.  The first reaction is to uproot the offender, clear the roots and repair the drain.  That is simple when the tree and the drain are upon your own land, but what happens if the source of the damage is upon neighbouring land, or the tree is protected by a tree preservation order ?

Tree Preservation Orders

To protect a tree or group of trees or woodlands a local authority can make a tree preservation order to prohibit felling, topping, lopping or up-rooting or other wilful damage to listed trees.
All types of trees, including hedgerow trees, may be covered by a TPO, provided that they are of a kind that attains 6m or more in maturity.  Thus, hedges, bushes and shrubs are not normally subject to a TPO.

 

In order to make a Tree Preservation Order (TPO) the local authority has to give the land owner written notice and advertise the proposed order in the newspaper. There are a number of important issues to consider regarding TPOs:

Firstly, it is important to be aware of any trees that are subject of a TPO - if you cut down, uproot or wilfully damage, top or lop a protected tree without permission of the local authority, you will commit an offence and can be fined (in addition to normally being required to plant a replacement tree if the original tree was destroyed).

Secondly, a tree may be cut down, or cut back, if it is dying, dead or dangerous (although you are still required to give your local planning authority at least five day's notice before you cut down the tree).

Finally, fruit tree(s) cultivated for fruit production do not appear to require any permission before they are cut, trimmed or removed from your own property.

Usefully, as far as letting and managing agents are concerned, the regulations permit cutting down, topping, lopping or uprooting of a tree at the request of a drainage body, where the tree interferes, or is likely to interfere, with the maintenance, improvement or construction of watercourses or drainage works.  When a sewer or foul water drain becomes inoperative due to the ingress of tree roots, the agent merely has to contact the water authority who will take the necessary action to cure the problem.

Right to light

Whilst the issue of the right to light is complex, it can be said that, at present, there is nothing to prevent excessively high hedging unless it is contrary to a particular planning decision or it affects the light of a building to the extent that it causes a nuisance. However, given the degree of publicly expressed concern, this may well change. 
A government consultation on the problem of leylandii has found widespread support for new laws to punish gardeners who fail to control their hedges. More than 200 MPs have also signed an early-day motion calling for controls.

Summary

Managing and letting agents are advised to proceed with caution before they authorise any action with regard to the planting, felling or lopping of a particular tree, whether with the client's permission, or not.  The tree might be the subject of a tree preservation order, or located in a conservation area.  Details of confirmed and provisional orders are kept in the local charges register and a search will reveal the position.  


References:
1.  Butler v Standard Telephones and Cables, 1940.
2.  Lemmon v Webb [1894] 3 Ch. 1, approved on appeal in [1895] AC 1.
3.  Davey v Harrow Corporation [1958] 1 QB, CA.
4.  Delaware Mansions Ltd v Westminster County Council, The Times, 25 August, 1999(CA).
5.  Elliott v Islington London Borough Council [1991] 1 EGLR 167.
6.  BRE Digest 298.