Neighbours tree blocking drive.

Neighbours tree blocking drive.

Postby lindle » Tue Feb 28, 2017 10:02 pm

I live next to a village church with two very old and huge yew trees close to the boundary with my property. My private drive runs between the boundary with the church yard on one side and the brick wall of an adjacent property on the other. The drive is about 100 feet long between the two properties before opening into my front garden. Low branches of the yews are now hanging across my drive and in some cases across the brick wall over the garden of the adjacent property at the other side of my drive. I am able to drive under them with my car but delivery vans and work lorries are unable to access my property as the clearance is only around 6 feet high in several places. They have to park on the road on a dangerous bend and carry items down my drive and across my front garden to my front door - about 150 feet in total. I anticipate that soon I will be refused deliveries. Additionally it would not be possible for an ambulance to get down should I require one. I am a pensioner living on my own. Someone involved with the church recently mentioned that they have had a survey done of the trees in the churchyard and they are getting quotes for work that needs doing. A couple of trees are to be taken down close to the boundary with my garden which would mean my aspect there would be open rather than screened by the trees. This is no problem to me as I have a laurel hedge and am quite happy to look at the church and realise anyway that I would have no right to object. However, when I asked what was being done about the yews affecting my access it was made clear this is my problem. I was told it was up to me to cut off the branches which would be quite a considerable task that I am incapable of doing and would have to pay dearly for. We are in a conservation area and I know that permission has to be sought but was advised that they would have to gain permission but I could cut off what I want without permission. The church warden has reconfirmed this. I knew this to be untrue so phoned the council who confirmed that no one could touch these trees without permission. They confirmed that the church warden has always requested permission for previous work undertaken but had not yet submitted the request for the latest work they are planning. Since they are having work done anyway it would seem only appropriate that they should include work to allow me to have proper access to my property but clearly they don't intend to. I have been looking at the law and it seems that there are situations where 'nuisance' may apply meaning that tree branches are 'indirectly' affecting the enjoyment/use of my property which I would assume might mean branches overshadowing a border or lawn, for example, but not directly affecting my use of the property. In such a situation I would expect to either put up or deal with this myself. But it seems that if I am directly prevented from using my property then we are in the realms of trespass. These trees are massive and if this is allowed to continue over the summer I can anticipate not being able to access my property by car and would have to park some way away on a road which would affect my car insurance due to the risk attaching. It would also mean having to carry shopping over a considerable distance to my door. Surely they are not allowed to knowingly prevent me from accessing my property or, as is currently the case, having deliveries or access for emergency services? I would think that if they were to include this work with that they are currently planning the cost would be relatively low whereas it would probably cost me well over £1000 that I simply do not have and in any event I am unable to accept this is my responsibility. Please can anyone confirm my right of access to my own property in this situation?
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Re: Neighbours tree blocking drive.

Postby despair » Wed Mar 01, 2017 12:30 am

i know tree surgeons are pricey but i doubt the bill would begin to approach £1000 to cut back branches to the boundary

you might also want to contact Age Concern or other voluntary groups in your area because they often have people who have the skills to help out
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Re: Neighbours tree blocking drive.

Postby ukmicky » Wed Mar 01, 2017 12:57 am

Trees legally cant trespass. What you have legally is a nuisance.

Its not straight forward this one and any court action to try to force them to remove the branches would be in the hands of the gods because I cant remember any case where a neighbour has taken another neighbour to court to force them to remove overhanging branches unless they are causing an actionable nuisance. Most situations with plants and tress growing into a neighbours airspace are classed as non actionable nuisance and it is left to the person being interfered with to perform self help to remove the nuisance at their own cost . If that was not the case our courts wouldn't be able to cope with all the claims and our landscape would be changed forever as everyone would be chopping things down in order to prevent any claim against them.


For a nuisance to be actionable in court any interference must be substantial and normally with trees for it to become substantial you would be talking about them causing damage.

Can trees blocking someone's access also be classed as an actionable nuisance. The answer is probably yes. I can only say probably because there has been no real case like this and because its a question of fact and degree and only a court can decide that one.They will ask themselves are you asking for more height than what is reasonable or if the nuisance is such that you could and should be exercising your common law right to remove the offending growth yourself. Courts do expect a landowner to exercise a level of self help before they go to court.



These trees are massive and if this is allowed to continue over the summer I can anticipate not being able to access my property by car


Branches start off small and are well within the ability of a home owner to remove . If your car can currently get through with no problem then that suggests to me as most branches start off small any growth that could occur over the summer could easily be removed by yourself or your gardener if you employ one.

Even though the trees are not yours you can still apply to the council to work on them due to conservation area requirements.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Neighbours tree blocking drive.

Postby arborlad » Wed Mar 01, 2017 11:45 am

lindle wrote:I live next to a village church with two very old and huge yew trees close to the boundary with my property. My private drive runs between the boundary with the church yard on one side and the brick wall of an adjacent property on the other. The drive is about 100 feet long between the two properties before opening into my front garden.




How old is your property, how long have you lived there?
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smile...it confuses people
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Re: Neighbours tree blocking drive.

Postby jonahinoz » Wed Mar 01, 2017 5:32 pm

Hi,

Yew was used to make bows (Remember Agicourt, and the two-fingered gesture). Yew is poisonous to horses. Solution, plant yew trees in churchyards, where horses are not allowed to graze.

Highly unlikely, but hey, you never know ... could there be any really, really, ancient decree, that prevents Yew from growing over by-ways that may be used by horses?

I'll go and get my coat now,

John W

PS ... OT, does anybody know why there are lots of horses called Bess, but very few called Harry? I've found my coat ...
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Re: Neighbours tree blocking drive.

Postby TO » Thu Mar 02, 2017 6:19 pm

Hi lindle

I appreciate they're not your trees, but they are causing you a problem. The trouble is the church don't have to do anything, and being the church probably won't, as spending money is not something they like doing. It's always very easy to get to an entrenched position where everyone has their heels dug in and won't move. I would try being a little conciliatory in order to reach a compromise.

You're right not to believe the church warden. As you're in a conservation area you must notify the council of any proposed works. I'd start by doing that. Something short and to the point along the lines of Notice under S211 TCPA 1990. I hereby give notice that I intend to crown lift all the trees encroaching from the churchyard over my drive to a height of 5.5m above the level of the drive.

5.5m is considered the minimum clearance above a highway to avoid obstruction, so they shouldn't object to that. Armed with your consent approach the church again, ask them to do it. Get a couple of written quotes and offer to pay half the costs, (use the cheapest of course but don't tell the church that), but at least find out who the church intend to get to do the works and arrange for them to do yours at the same time. If nothing else it will be a bit cheaper than having it done separately.

The alternative is, as some on this site would have you do, a digging in of heels and a long drawn out neighbour dispute which you won't win.

Regards the law. Trees don't trespass, they encroach. This may, or may not, become a nuisance. The Courts have differentiated between mere encroachment and nuisance. Nuisance has been taken to mean actionable nuisance. That is the trees are causing damage, or are imminently likely to. Is the encroachment you describe an actionable nuisance, probably not. But that would be for the Courts to decide, and I suspect the case would turn on a different issue. I.e. does the protection afforded to the trees by their location in a conservation area override your common law right to remove the encroachment. Again I'd say not, others will disagree.

TO
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