FAQ
Most frequent questions and answers
Ownership
Generally speaking the person who owns the land that a tree is growing on also owns the tree. If the tree grows straddling a boundary then ownership is considered to be joint.
Responsibilities
As a tree owner you have a responsibility that your tree does not cause damage or injury to others. In law this is dealt with under Common Law Duty – the duty of care.
Negligence
In general this asks whether a reasonable person could have foreseen the potential for mechanical failure of the tree leading to damage to a person or property. Therefore, one essential element of negligence is foresight.
Foresight
Is defined as ‘failing to do what a prudent person would do, or doing what a prudent person would not do’.
In relation to trees, the tree owner is responsible for the health, safety and maintenance of their trees and are expected to ensure with reasonable foresight that any health and safety implications that may cause damage to another person or property are rectified. While it is not expected that owner is able to competently inspect a tree, it is expected that competent suitably qualified professional is employed to make an assessment on the trees in the owners care at regular intervals based on the trees location, size and potential to cause damage or harm.
Example
A large tree in a location where it is close to persons and property may have a substantial decaying cavity. If this tree were to fail at this point and damage persons or property, the owner is expected to have foreseen the tree’s failure and would be negligent in not remedying the problem as the tree initially had a potential to cause harm. However a tree in the middle of a woodland away from paths, public access and property would not require inspection as its potential to cause damage or harm is minimal.
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 and that all street lighting and signs are not obscured by vegetation. The Highway Authority have the powers to serve notice on tree owners to enforce these clearances and if necessary carry out the works themselves and charge the tree owner. If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area your must still apply to carry out these works.
WHAT IS A TREE PRESERVATION ORDER?
Planning authorities have powers to protect trees by making Tree Preservation Orders.
The issuing of a TPO makes it an offence to cut down, prune, uproot, willfully damage or destroy any protected tree(s) without first having obtained permission from the Local Authority.
All types of tree can be protected in this way, whether as single trees or as part of a woodland, copse or other grouping of trees. Protection does not however extend to hedges, bushes or shrubs.
TPO’s are recorded in the Local Land Charges Register which can be inspected at your Council offices.
When purchasing a property the official searches carried out by your Solicitor should reveal the presence of a TPO on the property or whether your property is within a Conservation Area within which trees are automatically protected. [See Trees in Conservation Areas].
A TPO will not prevent planning permission being granted for development. However, the Council will take the presence of TPO trees into account when reaching their decision.
HOW IS A TPO MADE?
If your Council wishes to issue a Tree Preservation Order over a tree (or trees) on your property, they will serve a formal notice on you and write to other interested parties advising them of the making of the Order. A notice will be posted nearby in a position where members of the public can read it.
HOW CAN I OBJECT OR SUPPORT A TPO?
You (or anyone else) have 28 days from the date of the Order within which to object or support the Order. Always set out the reasons for your views and providing any further details concerning the trees covered by the Order.
The Council will take these into account in deciding whether to confirm the Order and may hold a Public Local Inquiry in certain cases.
WHAT ARE MY RESPONSIBILITIES?
Trees covered by TPO’s remain the responsibility of the landowner, both in terms of any maintenance that may be required from time to time and for any damage they may cause. The Council must formally approve any works to a TPO tree.
If you cut down, uproot or willfully damage a protected tree or carry out works such as lopping or topping which could be likely to seriously damage or destroy the tree then there are fines on summary conviction of up to £20,000, or on indictment the fines are unlimited. Other offences concerning protected trees could incur fines of up to £2,500.
UNDERTAKING WORKS TO A PROTECTED TREE
Although there are certain circumstances in which permission to carry out works to a protected tree are not required, it is generally safe to say that you should always write to your Council seeking their permission before undertaking any works.
You should provide details of the trees on which you intend to do work, the nature of that work – such as lopping or topping – and the reasons why you think this is necessary.
You may be required to plant a replacement tree if the protected tree is to be removed.
DO I ALWAYS NEED THE COUNCIL’S PERMISSION?
YES, except in the following limited circumstances:-
Where a protected tree is dead, dying or dangerous. Even so, unless the matter is urgent, such as a tree blown down over a public highway, you should still give the Council a weeks notice before you take any action. This ensures that the Council know what you are doing ( thereby avoiding potential prosecution if the Council think the works are not actually necessary) and they can decide whether a replacement tree is required.
Where the tree is a fruit tree and the works (such as pruning) are undertaken for cultivation purposes.
Where works are necessary to prevent or remedy a statutory nuisance. Legal advice should be sought in these circumstances.
Where the tree is to be removed in accordance with a planning permission for development.
Where there is an approved Felling Licence, Forestry Dedication Covenant, or plan of forestry operations approved by the Forestry Commission.
WHAT HAPPENS IF I AM REFUSED PERMISSION?
There is a right of appeal to the Secretary of State which must be made within 28 days of receiving the Councils decision. Details should be sent with the decision notice.
Except in unusual circumstances the appeal will be dealt with on the basis of an exchange of written representations although both you and the Council have the right to elect for a public local inquiry or informal hearing.
The Secretary of State or his appointed Inspector will make the final decision based on an impartial consideration of the evidence.
If consent is refused or granted subject to conditions you may be entitled to compensation from the Council if loss or damage results from the decision. You should write to the Council within 12 months of their decision or the appeal decision if one was heard.
Compensation will not be paid in circumstances where the Council have issued a certificate indicating that their decision was in the interests of good forestry, or because the tree or woodland have an outstanding or special amenity value.
WHAT IS A CONSERVATION AREA?
Conservation Areas are, “areas of special architectural or historic interest the character and appearance of which it is desirable to preserve or enhance”. (Civic Amenities Act 1967).
As the title indicates these designations cover more than just a building or property and most local authorities have designated Conservation Areas within their boundary.
Although Councils are not required to keep any statutory lists, you can usually identify Conservation Areas from Local Plan ‘proposals maps’ and appendices. The Council may keep separate records or even produce leaflets for individual areas.
The purpose of designating a Conservation Area is to provide the Council with an additional measure of control over an area that they considered to be of special historic of architectural value.
TREES IN CONSERVATION AREAS
Trees in Conservation Areas are generally treated in the same way as if they were protected by a Tree Preservation Order; ie it is necessary to obtain the Councils approval for works to trees in Conservation Areas before they are carried out.
There are certain exceptions (where a tree is dead or in a dangerous condition) but it is advisable to seek the opinion of your Councils Tree Officer to ensure your proposed works are acceptable. Even if you are certain that you do not need permission, notifying the Council may save the embarrassment of an official visit if a neighbour contacts them to tell them what you are doing.
Nearly all trees in Conservation Areas are automatically protected. If you wish to prune or fell a tree within a Conservation Area you must give 6 weeks notice in writing to the Local Authority. This is required in order that they can check to see if the tree is already covered by a Tree Preservation Order, or consider whether it is necessary to issue a TPO to control future works on that tree.
Under common law
You may prune unprotected trees or hedges overhanging your land without the consent of the owner but you must not trespass on to your neighbour’s land to do this. In addition you must offer to return the timber and any fruit attached or which has fallen on to your land. It is also considered neighbourly to notify your neighbour of your intentions prior to carrying out the works.
The above may also be applied to root encroachment.
Warning
you may become liable for criminal damage if such work causes the tree to die or become dangerous.
Recommendation
It is recommended to carry any tree works in accordance with good horticultural or arboricultural practice. Poor tree work can be counterproductive and is often potentially dangerous.
Under common law
You may prune unprotected trees or hedges overhanging your land without the consent of the owner but you must not trespass on to your neighbour’s land to do this. In addition you must offer to return the timber and any fruit attached or which has fallen on to your land. It is also considered neighbourly to notify your neighbour of your intentions prior to carrying out the works.
The above may also be applied to root encroachment.
Warning
you may become liable for criminal damage if such work causes the tree to die or become dangerous.
Recommendation
It is recommended to carry any tree works in accordance with good horticultural or arboricultural practice. Poor tree work can be counterproductive and is often potentially dangerous.
A felling licence, under some circumstances, may be required before trees may be felled. The licences are issued through the Forestry Commission and must be applied for if the following are true.
The total amount to be felled in the area within one calendar quarter is over 5 cubic metres or the total amount to be sold is over 2 cubic metres
The trees are not located within a garden, public open space or churchyard.
The trees measure (at a height of 1.3m) 8cm or more in diameter if felling, 10cm or more in diameter if thinning or 15cm or more in diameter if coppicing
The felling is not already approved under a formal Forestry Commission scheme
The trees are not dead, dangerous or causing a nuisance .
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. It is worth considering how high a tree will grow and what it’s affect on the surrounding properties bearing in mind the owners liability, see Tree Owners Responsibilities. Most Garden Centers will be able to provide advice how big a tree will be when it reaches maturity.
Things to consider
Trees planted on clay soils close to properties may cause subsidence
Large dense trees which grow fast may cause disputes with neighbours because of shading
Certain trees have attributes that many cause problems, eg. dropping fruit, growing fast and being fragile, summer branch drop, producing unpleasant smells, damaging laws, poisons fruit or leaves etc.
Some trees may require regular maintenance
Your Rights
You cannot compel a neighbouring landowner unless their trees encroach on to you property to manage their trees or to carry out tree work to your satisfaction unless you bring forward and win a civil action – you could consult an experienced solicitor to see if you have proper grounds to proceed with this.
The Government has been considering introducing new legislation in this area, but this is not yet drafted. Remember that one person’s nuisance can become another person’s amenity. As disputes between neighbours can develop into an emotionally charged and draining experience, the best advice is to seek to resolve such a situation before it becomes out of hand.
This can be done by explaining either in conversation or by a letter to the tree owner stating how your living conditions are being affected, how this is influencing your enjoyment of life and hopefully thereby reaching agreement to carry out tree work that is mutually acceptable. Keep a photocopy of your correspondence, in case things go wrong. Mediation services are sometimes available – you may wish to consult a Citizen’s Advisory Bureau for more information on this.
Root Problems
If you believe that your property may be suffering from either direct or indirect damage by tree roots, then you are advised to consult an arboricultural consultant or a building surveyor. There will usually be evidence of damage such as deformed or cracking of walls, or uneven surface levels or blocked drains. If this is the case, you should notify your building insurer, who may initiate further investigations and negotiate with your neighbour and their insurer.
Leaves
Leaves falling from a tree are held to be a natural occurrence and no responsibility attributes itself to the owner
Aphids (Honeydew)
The same applies to honeydew as for leaves.
Shade and View
There is no effective right to light or a view in English law. The prescriptions act does afford a right to light however it is severely limited and using it in relation to trees is problematic and generally unsuccessful.
Subsidence Damage
Subsidence damage to a structure – particularly a dwelling – can be an extremely distressing experience for the occupier. The causes of subsidence in low rise buildings are numerous and often complex, ranging from leaking drains to underground mine workings and from landslip to clay shrinkage.
Where trees are protected by a Tree Preservation Order or are situated within a Conservation Area, your local Department of Planning and Environment has a responsibility, on the one hand, to protect trees in the interests of public amenity and, on the other hand, to seek to ensure that no individual suffers undue loss or distress from damage resulting from the action of tree roots. Balancing these responsibilities can prove difficult and relies on consideration of all material facts of the particular case.
In the first instance you should contact your building insurer, who will normally appoint a specialist loss adjuster and structural engineer to carry out investigations. Below is a list of key information normally required by Local authority planning departments to make an informed decision about the most appropriate course of action.
- The age of property including any extension or major alterations
- Ownership of the tree(s)
- Nature of problem e.g. cracking, deformation, etc.
- Historical defect monitoring information
- Type and depth of existing foundations
- Log of subsoil composition to approximately 3m below ground level
- Evidence of tree root presence below foundation level
- Evidence that roots belong to suspected trees
- Measurement of subsoil shrinkage potential at and below foundation formation level
- Plotting and water-tightness testing of drain runs close to building
A plan showing accurate locations of relevant site features including buildings, drains and trees on and/or adjacent to the site and of the borehole sampling locations
Your Rights
You cannot compel a neighbouring landowner unless their trees encroach on to you property to manage their trees or to carry out tree work to your satisfaction unless you bring forward and win a civil action – you could consult an experienced solicitor to see if you have proper grounds to proceed with this.
The Government has been considering introducing new legislation in this area, but this is not yet drafted. Remember that one person’s nuisance can become another person’s amenity. As disputes between neighbours can develop into an emotionally charged and draining experience, the best advice is to seek to resolve such a situation before it becomes out of hand.
This can be done by explaining either in conversation or by a letter to the tree owner stating how your living conditions are being affected, how this is influencing your enjoyment of life and hopefully thereby reaching agreement to carry out tree work that is mutually acceptable. Keep a photocopy of your correspondence, in case things go wrong. Mediation services are sometimes available – you may wish to consult a Citizen’s Advisory Bureau for more information on this.
Root Problems
If you believe that your property may be suffering from either direct or indirect damage by tree roots, then you are advised to consult an arboricultural consultant or a building surveyor. There will usually be evidence of damage such as deformed or cracking of walls, or uneven surface levels or blocked drains. If this is the case, you should notify your building insurer, who may initiate further investigations and negotiate with your neighbour and their insurer.
Leaves
Leaves falling from a tree are held to be a natural occurrence and no responsibility attributes itself to the owner
Aphids (Honeydew)
The same applies to honeydew as for leaves.
Shade and View
There is no effective right to light or a view in English law. The prescriptions act does afford a right to light however it is severely limited and using it in relation to trees is problematic and generally unsuccessful.
Subsidence Damage
Subsidence damage to a structure – particularly a dwelling – can be an extremely distressing experience for the occupier. The causes of subsidence in low rise buildings are numerous and often complex, ranging from leaking drains to underground mine workings and from landslip to clay shrinkage.
Where trees are protected by a Tree Preservation Order or are situated within a Conservation Area, your local Department of Planning and Environment has a responsibility, on the one hand, to protect trees in the interests of public amenity and, on the other hand, to seek to ensure that no individual suffers undue loss or distress from damage resulting from the action of tree roots. Balancing these responsibilities can prove difficult and relies on consideration of all material facts of the particular case.
In the first instance you should contact your building insurer, who will normally appoint a specialist loss adjuster and structural engineer to carry out investigations. Below is a list of key information normally required by Local authority planning departments to make an informed decision about the most appropriate course of action.
- The age of property including any extension or major alterations
- Ownership of the tree(s)
- Nature of problem e.g. cracking, deformation, etc.
- Historical defect monitoring information
- Type and depth of existing foundations
- Log of subsoil composition to approximately 3m below ground level
- Evidence of tree root presence below foundation level
- Evidence that roots belong to suspected trees
- Measurement of subsoil shrinkage potential at and below foundation formation level
- Plotting and water-tightness testing of drain runs close to building
A plan showing accurate locations of relevant site features including buildings, drains and trees on and/or adjacent to the site and of the borehole sampling locations
Ownership
Generally speaking the person who owns the land that a tree is growing on also owns the tree. If the tree grows straddling a boundary then ownership is considered to be joint.
Responsibilities
As a tree owner you have a responsibility that your tree does not cause damage or injury to others. In law this is dealt with under Common Law Duty – the duty of care.
Negligence
In general this asks whether a reasonable person could have foreseen the potential for mechanical failure of the tree leading to damage to a person or property. Therefore, one essential element of negligence is foresight.
Foresight
Is defined as ‘failing to do what a prudent person would do, or doing what a prudent person would not do’.
In relation to trees, the tree owner is responsible for the health, safety and maintenance of their trees and are expected to ensure with reasonable foresight that any health and safety implications that may cause damage to another person or property are rectified. While it is not expected that owner is able to competently inspect a tree, it is expected that competent suitably qualified professional is employed to make an assessment on the trees in the owners care at regular intervals based on the trees location, size and potential to cause damage or harm.
Example
A large tree in a location where it is close to persons and property may have a substantial decaying cavity. If this tree were to fail at this point and damage persons or property, the owner is expected to have foreseen the tree’s failure and would be negligent in not remedying the problem as the tree initially had a potential to cause harm. However a tree in the middle of a woodland away from paths, public access and property would not require inspection as its potential to cause damage or harm is minimal.
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 and that all street lighting and signs are not obscured by vegetation. The Highway Authority have the powers to serve notice on tree owners to enforce these clearances and if necessary carry out the works themselves and charge the tree owner. If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area your must still apply to carry out these works.
Ownership
Generally speaking the person who owns the land that a tree is growing on also owns the tree. If the tree grows straddling a boundary then ownership is considered to be joint.
Responsibilities
As a tree owner you have a responsibility that your tree does not cause damage or injury to others. In law this is dealt with under Common Law Duty – the duty of care.
Negligence
In general this asks whether a reasonable person could have foreseen the potential for mechanical failure of the tree leading to damage to a person or property. Therefore, one essential element of negligence is foresight.
Foresight
Is defined as ‘failing to do what a prudent person would do, or doing what a prudent person would not do’.
In relation to trees, the tree owner is responsible for the health, safety and maintenance of their trees and are expected to ensure with reasonable foresight that any health and safety implications that may cause damage to another person or property are rectified. While it is not expected that owner is able to competently inspect a tree, it is expected that competent suitably qualified professional is employed to make an assessment on the trees in the owners care at regular intervals based on the trees location, size and potential to cause damage or harm.
Example
A large tree in a location where it is close to persons and property may have a substantial decaying cavity. If this tree were to fail at this point and damage persons or property, the owner is expected to have foreseen the tree’s failure and would be negligent in not remedying the problem as the tree initially had a potential to cause harm. However a tree in the middle of a woodland away from paths, public access and property would not require inspection as its potential to cause damage or harm is minimal.
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 and that all street lighting and signs are not obscured by vegetation. The Highway Authority have the powers to serve notice on tree owners to enforce these clearances and if necessary carry out the works themselves and charge the tree owner. If the tree is protected by a Tree Preservation Order (TPO) or growing in a Conservation Area your must still apply to carry out these works.
Your Rights
You cannot compel a neighbouring landowner unless their trees encroach on to you property to manage their trees or to carry out tree work to your satisfaction unless you bring forward and win a civil action – you could consult an experienced solicitor to see if you have proper grounds to proceed with this. The Government has been considering introducing new legislation in this area, but this is not yet drafted. Remember that one person’s nuisance can become another person’s amenity. As disputes between neighbours can develop into an emotionally charged and draining experience, the best advice is to seek to resolve such a situation before it becomes out of hand. This can be done by explaining either in conversation or by a letter to the tree owner stating how your living conditions are being affected, how this is influencing your enjoyment of life and hopefully thereby reaching agreement to carry out tree work that is mutually acceptable. Keep a photocopy of your correspondence, in case things go wrong. Mediation services are sometimes available – you may wish to consult a Citizen’s Advisory Bureau for more information on this.
Root Problems
If you believe that your property may be suffering from either direct or indirect damage by tree roots, then you are advised to consult an arboricultural consultant or a building surveyor. There will usually be evidence of damage such as deformed or cracking of walls, or uneven surface levels or blocked drains. If this is the case, you should notify your building insurer, who may initiate further investigations and negotiate with your neighbour and their insurer.
Leaves
Leaves falling from a tree are held to be a natural occurrence and no responsibility attributes itself to the owner
Aphids (Honeydew)
The same applies to honeydew as for leaves.
Shade and View
There is no effective right to light or a view in English law. The prescriptions act does afford a right to light however it is severely limited and using it in relation to trees is problematic and generally unsuccessful.
Subsidence Damage
Subsidence damage to a structure – particularly a dwelling – can be an extremely distressing experience for the occupier. The causes of subsidence in low rise buildings are numerous and often complex, ranging from leaking drains to underground mine workings and from landslip to clay shrinkage.
Where trees are protected by a Tree Preservation Order or are situated within a Conservation Area, your local Department of Planning and Environment has a responsibility, on the one hand, to protect trees in the interests of public amenity and, on the other hand, to seek to ensure that no individual suffers undue loss or distress from damage resulting from the action of tree roots. Balancing these responsibilities can prove difficult and relies on consideration of all material facts of the particular case.
In the first instance you should contact your building insurer, who will normally appoint a specialist loss adjuster and structural engineer to carry out investigations. Below is a list of key information normally required by Local authority planning departments to make an informed decision about the most appropriate course of action.
- The age of property including any extension or major alterations
- Ownership of the tree(s)
- Nature of problem e.g. cracking, deformation, etc
.
- Historical defect monitoring information
- Type and depth of existing foundations
- Log of subsoil composition to approximately 3m below ground level
- Evidence of tree root presence below foundation level
- Evidence that roots belong to suspected trees
- Measurement of subsoil shrinkage potential at and below foundation formation level
- Plotting and water-tightness testing of drain runs close to building
A plan showing accurate locations of relevant site features including buildings, drains and trees on and/or adjacent to the site and of the borehole sampling locations
NO
Every tree is different and every site has it’s own special features that need to be taken into consideration before a price can be given and our estimates are free of charge and can be arranged at a convenient time to suit our customers.
When pricing tree works we take in the following factors
- Our customers requirements
- The size, species and condition of the tree
- Whether the customers request will severely damage the tree, have an adverse effect to its surroundings or be unpractical
- If the tree is protected by a “Tree Preservation Order” or within a “Conservation Area” and whether the clients request will be accepted by the local authority
- Access to the tree for carrying out the works and for clearing the debris
- Health and safety, when producing an estimate by law we are required to carry out a site specific risk assessment to protect our staff and the public from danger
- Surrounding features on the site that may effect the works
- Parking requirements to carry out the works, in many areas parking control is in place and we need to apply for parking restrictions
- The specific tools, plant and machinery that will be required to carry out the work
We believe that giving prices over the phone is unprofessional and unfair to our customers
The company has an excellent Health & Safety record in an industry with potential for accidents. This has been achieved through constant attention to detail, training of all staff and monitoring and improvement when necessary of all work procedures. Risk Assessment is obligatory and is always carried out prior to starting work.
City Suburban Tree Surgeons Ltd adhere to:
- All AFAG Safety Guidelines
- Health and Safety at Work Act 1974
- Management of Health and Safety at Work Regulations 1992
- LOLER: Regultations
- PUWER 98: Regulations
- RIDDOR: Reporting