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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22401
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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my neighbours tree grew so large it knocked her fence down.

Customer Question

my neighbours tree grew so large it knocked her fence down. she errected the old fence around it now the tree has grown to 24 meters high and is now in our garden we can no longer use that side of the garden due to the large roots, and it has destroyed our lawn she is not very approachable what can we do
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.

Do you have a specific question?

What do you want to do? Is the tree evergreen/for/conifer type?

Customer: replied 3 years ago.


the tree is a sycamore maple which is a common variety


 


l would like the tree removed and a proper fence put back on the boundry line


 


as she has refused to remove the tree if l take legal action would l be successful and how much would it cost

Expert:  Stuart J replied 3 years ago.




This is a very common question. A
person cannot make an adjoining property owner cut the trees per se but please
see my later comments about trespass and nuisance.

Consent is needed to trim
deciduous trees which are protected by a Tree Preservation Order and a licence
may be needed to fell trees which are not protected by a TPO.



Evergreens cannot usually have a
TPO.



Regarding evergreens, a complaint
can be made to the council and they will deal with them under the nuisance tree
legislation but only with regard to the height. They want £300 fee to start the process and if they
find that the trees are a nuisance, they can compel a tree owner to cut them
down to 2 m high.



With regard to branches and roots
growing over the boundary,(deciduous or evergreen) these are nuisance and
trespass. The overhanging pieces can be chopped off as can roots growing
underground but they do not belong to anyone other than the tree owner, so the
pieces should be given back although if they are unceremoniously dumped over
their hedge without warning, it is not good for already fraught neighbour
relation



The following are links will give
you some reading with regard to high hedges and nuisance trees. Don't worry
about where the sites are geographically because the rules apply nationwide.



 



http://www.richmond.gov.uk/home/environment/planning/high_hedges/high_hedges_frequently_asked_questions.htm



 



http://www.tameside.gov.uk/planning/highhedges



 



http://www.gardenlaw.co.uk/trees.html



 



This is however not evergreen so
whilst you can trim overhangs you cannot compel her to cut it down to 2m high.



A court case could costs
£5,000-£10,000 if you lose although you can get costs awarded if you win.



 







Can I assist
further or clarify anything for you?



Thank
you



Please
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Customer: replied 3 years ago.

as the tree has grown three quarters of the tree trunk is now in my garden to accomadate the tree they moved the fence on to our garden reducing the size of our garden


do you think we have a good claim


 

Expert:  Stuart J replied 3 years ago.





It is a well-known legal
doctrine that anything which is attached to the land becomes part of the land.
From a legal perspective therefore you own three quarters of the tree and the
neighbour owns a quarter regardless of who actually planted it...

 

You could legally remove three quarters of the tree which is in
your land although that would destabilise the remaining quarter and probably
kill it. Would probably also fall over leading to a negligence claim.



I think you have quite a good claim however I can never predict
the outcome of a court case and if I could, I would be very rich.



Remember that even the outsider in a race, sometimes wins.


BUT BUT BUT BUT...

There is another argument which the neighbour can use and that
is the Prescription Act.



This actually contradicts slightly what I said above because they
can claim that because the tree has been there for over 20 years, they have now
acquired the easement to have their tree in your garden.



Your claim then (if common law trespass does not work) is in
common law nuisance. I think you have an excellent claim in nuisance and
trespass but it would be for a judge to decide.



 



Can I help further?







Please bear with
me today and in general because I am off-line and online all day and evening
(and often at weekends)



Please don't
forget to positively rate my answer service (even if it was not what you want
to hear). If you don't rate it positively, then the site keep your deposit and
I get 0 for my time. It is imperative that you give my answer a positive
rating. It doesn't give me "a pat on the head", "good boy" (like ebay), it is
my livelihood!

If in ratings you feel that you expected more or it only helped a little,
please ask.





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