Gardeners beware: check the ground rules first…


Warmer weather and a number of bank holiday weekends draw our attention to the outdoors. A visit to the garden centre will be top of the to-do list for many after the slow start to spring.  Take care though: it’s important you check the ground rules – quite literally – before you start out there.

Recent media coverage of cases where homeowners have acted outside the law, and some who failed to act at all, serve to demonstrate both how the law impacts enjoyment of your own land and the severe consequences which flow from being on the wrong side of that law.

Trees and Councils

Certain trees are subject to a number of protections but are sometimes still removed by householders without permission. Some may be individually covered by Tree Protection Orders (TPOs). A TPO is an order made by a local authority in respect of either a single tree or a group of trees of amenity value. A tree subject to an order may not normally be lopped, topped or felled without the consent of the local planning authority (LPA).

Such protections extend to trees in a designated conservation area. That is an area of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance. Trees in conservation areas protected by TPOs are subject to the normal TPO controls. All the other trees have different protection: anyone proposing to cut down or carry out work on a tree not protected by a TPO must give six weeks’ prior notice to the LPA. Such notice is under section 221 of the Town and Country Planning Act 1990 (TCPA). Its purpose is to enable the LPA to decide whether the tree or trees in question should be made subject to a TPO.

There are certain exemptions to the giving of notice, for example for small trees. It is crucial to check if your trees qualify as the regulations are very specific. Thus you can cut down, top, lop or uproot a tree whose diameter does not exceed 75 millimetres. You can cut down or uproot a tree whose diameter does not exceed 100 millimetres where carried out for the sole purpose of improving the growth of other trees. To establish the diameter of the tree to determine if it falls within the exemption it must be measured over its bark at 1.5 metres above natural ground level and where the tree is multi-stemmed it will only be a small tree if all its stems are smaller than the relevant size.

It is a criminal offence to carry out unauthorised works to a tree covered by a TPO or in a conservation area. Most offenders find themselves being interviewed under caution as a result of disgruntled neighbours making a complaint. With a criminal record in view and a potential unlimited fine per tree for breach you really do need to make sure what you are doing is legal.

Further, it has been realised that fines have tended to be small compared with the financial benefits a homeowner (or developer) might reap in the longer term by removing such trees. To tackle this local authorities have begun taking action by focusing attention on the economic advantage gained. If your property goes up in value because you carried out unauthorised work on trees you could find yourself prosecuted and paying out for the increase in value too.

By way of example, last year a property owner in Dorset cut down 11 trees, including mature oak, beech and sweet chestnut, which were covered by a TPO. Each required LPA consent to prune or fell. The (wealthy) homeowner took them down regardless. The removal of the trees gave more light to the side of the property, increased the usable garden size and was estimated by expert surveyors to have added £137,500 in value to the £2m home.

The owner had been given an earlier warning after breaching a TPO. He argued he had taken the action to protect his grandchildren from falling branches but he was ordered to pay a sum equal to the increased value of £137,500 under a Proceeds of Crime Order. Together with fines and court costs, he paid a total of just under £170,000.

The breakdown shows that his fine for the tree cutting was modest at £12,000, but he was ordered to pay £137,500 under a Proceeds of Crime Order representing the increased value of his home, plus £20,000 costs. He reportedly did it because he was ‘impatient’! As a man of means, the owner may well have been able to afford the financial penalty but he landed himself with a criminal record as well.

What is not clear from the reporting is whether he has planted or been required to plant replacement trees. Section 206 of the TCPA places a duty on the landowner to replant, the LPA being able to enforce by order.

Another Dorset homeowner who pruned, not removed, a 40 foot oak tree covered by a TPO also has a criminal record now. Cutting off branches blocking sunlight to his west facing garden to allow light in and to his Juliet balcony cost him £40,000. Virtual destruction of the ‘butchered’ tree, which reportedly will not properly recover, was reported by his neighbours. The destruction increased the value of his home by £21,000, which sum he was ordered to pay to the council under a Proceeds of Crime order. The fine for unauthorised work to the tree was a mere £1200, and the balance in costs.

Trees and neighbours

Whilst unauthorised work to trees presents its own set of problems, failure to tend to trees more generally can present quite different problems, and especially so where failure to prune or lop trees, or even remove them, affects neighbours.  Zurich insurers are currently seeking to recoup a payment by claiming damages from a London homeowner of £500,000 claiming her lack of control of four sycamore trees growing in her garden has damaged their insured’s properties.  They argue tree roots have extended under the properties and caused subsidence, in a long-running dispute that has saw arguments over the garden fence for more than 5 years. The 80 year old homeowner, acting in person thus far with the help of her son, will be facing in court, not just the neighbours, but also the freeholder of their property in the case which will be heard later this year.

Most insurance policies will require you to keep trees within your garden tended to prevent subsidence to your own property, and you should ensure you do just that lest your insurers declines to pay out. Trees that grow next to a boundary or are maybe the boundary feature itself, and encroach over the boundary tend to be less of an underground than an overground problem. Overhanging branches cause grave annoyance to many neighbours. As a matter of law, neighbours are entitled to cut the offending branches (and roots) back to the boundary providing they return the cut parts to the tree owner!

That in itself can cause neighbour disputes, inadvertently or otherwise. Always a good idea to try and avoid those disputes, indeed all disputes and a good place to start is by considering how the trees and actions or inactions impact others. Once you have done so, talk to your neighbours before you reach for your cutting implement!

Neighbours and Knotweed

Another unwelcome visitor across boundaries that may put neighbours at loggerheads is the hugely destructive Japanese Knotweed.  Introduced to the UK from Asia in Victorian times as an ornamental garden plant it is a highly destructive weed which spreads rapidly. It dies back to ground level in winter but by early summer the bamboo like stems emerge from rhizomes deep underground, growing rapidly to 7 feet or more and stifling all other plant growth. It can sprout from very small sections of those rhizomes, and therefore is easily transferred from one location to another. The plant can penetrate concrete and is a menace.

Under schedule 9 of the Wildlife and Countryside Act 1991 it is an offence to cause Japanese Knotweed to grow in the wild. An amendment to the Anti-social Behaviour, Crime and Policing Act 2014 includes invasive non-native plants including Japanese knotweed. Thus whilst it is not illegal or an offence to have it in your garden, failure to control it if you do is.

If you are unlucky enough to have Japanese Knotweed you need to take steps to control it to prevent it becoming a problem in your neighbourhood. When it has a “detrimental effect of a persistent or continuing nature on the quality of life of those in the locality” you could be prosecuted.

Recently a fine of £18,000 was imposed on a property owner under the anti-social behaviour legislation for failing to deal with the Japanese Knotweed. The owner ignored a community protection notice, ordering them to get rid of the knotweed.  When no action was taken, the local authority prosecuted, and the resulting court order included a requirement to hire a specialist company to implement a treatment plan.

The RHS advises that where problems with Japanese Knotweed occur in neighbouring gardens, you speak or correspond directly with your neighbours (who may already be taking action to control this difficult weed). These informal steps should be taken before contacting your council to talk about action under the legislation. A specialist professional company is best placed to help, being skilled at control, ensuring eradication and able to dispose of the plant waste at licenced landfill sites.

Hilary Messer

Senior Associate
Commercial Disputes
Property Disputes

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