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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 24559
Experience:  Senior Partner at Berkson Wallace
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Our garden is quite small, 9m x 6.5m. At the end beyond the

Customer Question

Our garden is quite small, 9m x 6.5m. At the end beyond the boundary is an oak tree who's trunk is on a public footpath. The oak trees canopy is now within 2.5m of our roof.
JA: Where are you? It matters because laws vary by location.
Customer: We have made numerous complaint to Woking BC and to our local councillor with regard to the amount of bird mess that accumulates in the garden, up to 30 spots during the day and more at night if the pigeons roost.
JA: What steps have you taken so far?
Customer: Supplied pictures to the Councillor who have passed these to the Council. Who have stated that they will at sometime remove dead branches under normal maintenance. The problem is the pigeons and the amount of tree that covers the garden. We have been told that legally we can remove branches that cover our garden but are obviously responsible if we make the 30m high tree unstable. Our garden is almost unusable except for the patio area where we have a large umbrella. I have now no confidence in the Council and will no approach Environmental Health as my daughter has a medical condition which renders her at risk because she is imnunosuppressed. What action can I take is I still have no resolution to the problem. Thanks
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No I don't think so
Submitted: 11 days ago.
Category: Property Law
Expert:  Virtual-mod replied 11 days ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 10 days ago.
Please continue. Thanks
Expert:  Stuart J replied 10 days ago.

Questions about nuisance trees crop up quite regularly.

Anything which overhangs the boundary, including routes, is 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 relations.

If a complainant is not capable of doing this themselves or do not want to do it themselves, they can charge the neighbour for the cost of doing the work provided they give the neighbour notice that if they don’t trim it, they will get someone in to do it.

If the tree owning neighbours won’t pay up, then it’s a case of taking them to the Small Claims Court for the cost.

Anyone cutting overhanging branches are not allowed to kill the tree or cut the roots back so far that they can destabilise or kill the tree.

I am not aware that it is possible to have a Tree Preservation Order on evergreen trees, although before cutting any deciduous tree always check for Tree Preservation Order.

There have been cases in respect of deciduous trees where the adjoining owner has been made to cut them because the leaves and the loss of light is nuisance.  That is nuisance on an ordinary English dictionary definition of the word.  However such actions with deciduous trees are not common.

The situation with evergreens, and Leylandi  in particular is different.  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.

The following are links will give you some reading with regard to high hedges and nuisance trees.  They come from a few particular local authorities but the rules are the same throughout the country.  The majority of local authority have pages like this, I just happened to pick these out.

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

If this is an oak tree, then it is highly likely that there is a Tree Preservation Order on it.  However just because there is a Tree Preservation Order doesn’t mean that the council can leave it there with impunity.

You still have a claim against the local authority Council in common law nuisance because this is, on an ordinary English dictionary definition of the word “nuisance”.

You can take the council to court having first sent them a letter before action, to get a court order compel them to abate the nuisance.

It is often the case  that a robustly worded letter from a/your solicitor threatening a court application and an application for costs, may resolve the issue without the need to go as far as court.

On your house insurance you may have legal expenses cover that would pay for the legal cost so it’s worthwhile checking.  Some do and some don't.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards