Neighbour's massive conifer very close to our boundary

Neighbour's massive conifer very close to our boundary

Postby carled » Thu Mar 02, 2017 2:27 pm

Hi all.

We have a long-ish garden (25m or so) and the neighbour that backs onto us has an even longer one (40/50m). At the extreme end of his garden and just behind the fence on our garden is an enormous conifer (leilandi, I think) that is now approx 25/30m tall. When we had the fence installed a few years back, unknown to me until last night, when I checked, the installer actually cut out a notch on the top of the fence to accommodate one of its branches where it would otherwise have been touching!

Standing beneath the tree and looking up, I would estimate that between 1/3 and 1/2 of the tree overhangs our land. Needless to say, the amount of dead conifer needles/bit that drops into our garden is huge and it has turned that end of the garden into a dark and desolate wasteland where nothing can grow.

I believe I can ask him to cut back the bit of the tree that overhangs our property? If (when!) he refuses, I believe I have the right to cut it back and dispose of the trimmings (after asking him he he wants them back, of course).

The problem I can see, however, is that by cutting off such a large amount of tree, it will almost certainly kill it. Then it's highly likely that it will fall over in the next big storm and damage property somewhere in the vicinity (ours or any other of the surrounding gardens depending on which way the wind is blowing) so on that basis would we then be liable for legal action against us for killing the tree?

*edited to add
Had forgotten about roots too. As the main "trunk" (which is, by the nature of such trees, an agglomeration of about 40 big branches) is only inches from our fence, it's impossible that the roots don't significantly encroach on our land too - hence the desert-like conditions up there. It appears from the page here: http://www.gardenlaw.co.uk/trees.html that "The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub. You should always try to reach an understanding with the neighbour who owns the tree and if damage is likely to be severe, then it may be advisable to seek help from a tree surgeon." so that kind of indicates that I can take action on the bits of the tree that encroach even if it ends up killing the tree?
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Re: Neighbour's massive conifer very close to our boundary

Postby mr sheen » Thu Mar 02, 2017 3:09 pm

You have the right to use every inch of your own land that you have paid your hard earned cash for, above and below ground, exactly as you wish so you do not have to tolerate encroachment by neighbouring vegetation. In effect the neighbour has encroached onto land he does not own and cannot rely on land other people have paid for to grow the vegetation of his choice, as oppose to the landowner.

In cases of encroachment by vegetation, it is acceptable to resort to self-help to remove the encroachment up to the boundary, so that the courts are not tied up 24/7 with cases of encroaching vegetation. The arisings should be offered back but removed if he doesn't want them. Any costs associated with resorting to self-help cannot be recovered.

It is nice/polite/neighbourly to let the neighbour know of your intentions to remove the encroachment from your land. At the same time find out if he wants the arisings back. Since you think the tree may die, it is worth informing the neighbour in writing in case there are issues later on if the tree dies. It is good to start off pleasantly and give the neighbour chance to remove the encroachment himself so that he can engage a tree surgeon if he wishes to try to keep the tree as healthy as possible......but the reality of the situation is that if he chooses not to remove the encroachment, then you can do so and it would be nice if you engaged a tree surgeon but you don't have to spend any money on it.
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Re: Neighbour's massive conifer very close to our boundary

Postby carled » Thu Mar 02, 2017 3:16 pm

mr sheen wrote:You have the right to use every inch of your own land that you have paid your hard earned cash for, above and below ground, exactly as you wish so you do not have to tolerate encroachment by neighbouring vegetation. In effect the neighbour has encroached onto land he does not own and cannot rely on land other people have paid for to grow the vegetation of their choice or any other activity.

It is nice/polite/neighbourly to let the neighbour know of your intentions to remove the encroachment from your land. At the same time find out if he wants the arisings back. Since you think the tree may die, it is worth informing the neighbour in writing in case there are issues later on if the tree dies. It is good to start off pleasantly and give the neighbour chance to remove the encroachment himself so that he can engage a tree surgeon if he wishes to try to keep the tree as healthy as possible......but the reality of the situation is that if he chooses not to remove the encroachment, then you can do so and it would be nice if you engaged a tree surgeon but you don't have to spend any money on it.


Thanks for the reply. So to summarise: If I have a chat (he may be willing to get the tree removed anyway) and he refuses to do anything about it (or tries to make me pay, etc.) then I can simply tell him that I will take matters into my own hands regarding roots and branches that encroach and that if this results in the tree dying, it's not my problem? And, as you say, if he wishes to preserve the tree (assuming it can be preserved - I think it'd be too much foliage removed for it to cope) then he can engage a tree specialist to do it nicely instead.

That way, as long as I don't cut back beyond the boundary, he can do nothing even if my actions result in his tree dying?

Basically I cannot force him to pay to sort it out, but I can demonstrate that he'll probably have to pay to have the resulting dead tree dealt with, so he may as well just get it sorted anyway?
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Re: Neighbour's massive conifer very close to our boundary

Postby MacadamB53 » Thu Mar 02, 2017 3:53 pm

Hi carled,

as long as I don't cut back beyond the boundary, he can do nothing even if my actions result in his tree dying?

no, he can do something.

if his tree dies he is entitled to pursue you for damages and, depending on the evidence, you may be found liable.

Kind regards, Mac
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Re: Neighbour's massive conifer very close to our boundary

Postby carled » Thu Mar 02, 2017 4:37 pm

MacadamB53 wrote:Hi carled,

as long as I don't cut back beyond the boundary, he can do nothing even if my actions result in his tree dying?

no, he can do something.

if his tree dies he is entitled to pursue you for damages and, depending on the evidence, you may be found liable.

Kind regards, Mac


Thanks Mac. But that's at odds to the bit I've quoted from the main site at the bottom of my first post: "The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub" so that says I can cut the roots (and therefore logically the branches) despite it being a probable death sentence to the tree...? I'm not saying you're wrong, but it seems to be a clear conflict of opinion between your post and the main page?
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Re: Neighbour's massive conifer very close to our boundary

Postby TO » Thu Mar 02, 2017 5:46 pm

carled wrote:
MacadamB53 wrote:Hi carled,
as long as I don't cut back beyond the boundary, he can do nothing even if my actions result in his tree dying?
no, he can do something. if his tree dies he is entitled to pursue you for damages and, depending on the evidence, you may be found liable.

Kind regards, Mac

Thanks Mac. But that's at odds to the bit I've quoted from the main site at the bottom of my first post: "The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub" so that says I can cut the roots (and therefore logically the branches) despite it being a probable death sentence to the tree...? I'm not saying you're wrong, but it seems to be a clear conflict of opinion between your post and the main page?
Hi carled. Don't believe everything you read on the internet. Macs right. Whilst you have the right to remove the encroaching roots and branches, you have no right to destroy your neighbours property, in this instance their tree, hence not poisoning it.

If you do cut all the encroaching roots and branches off and the tree dies or blows over within a few days/weeks/months then it might be easy to demonstrate that your actions were, or were at least in part, the cause. If it dies/blows over in five years time it would be less easy to demonstrate your actions were the cause.

Proportionality of cause, and therefore the proportion of any financial liability you may incur as a consequence of your actions, would be for the Courts to determine. Forewarning your neighbour that what you intend to do could result in the destruction of their property, which then comes to pass, won't help your case in Court.
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Re: Neighbour's massive conifer very close to our boundary

Postby stufe35 » Thu Mar 02, 2017 6:57 pm

Thanks TO that's very interesting. So one would conclude the time to prevent someone's tree encroaching on your property is as soon as it happens, when you will only be chopping off small bits and are therefore unlikely to be accused of killing it.

Carled....in my experience it takes serious cutting to kill leylandi...I wouldn't lose too much sleep about chopping it back if you end up on that option. I hope your neighbour is receptive to getting rid.
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Re: Neighbour's massive conifer very close to our boundary

Postby carled » Fri Mar 03, 2017 11:24 am

TO wrote:
carled wrote:
MacadamB53 wrote:Hi carled,
as long as I don't cut back beyond the boundary, he can do nothing even if my actions result in his tree dying?
no, he can do something. if his tree dies he is entitled to pursue you for damages and, depending on the evidence, you may be found liable.

Kind regards, Mac

Thanks Mac. But that's at odds to the bit I've quoted from the main site at the bottom of my first post: "The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub" so that says I can cut the roots (and therefore logically the branches) despite it being a probable death sentence to the tree...? I'm not saying you're wrong, but it seems to be a clear conflict of opinion between your post and the main page?
Hi carled. Don't believe everything you read on the internet. Macs right. Whilst you have the right to remove the encroaching roots and branches, you have no right to destroy your neighbours property, in this instance their tree, hence not poisoning it.

If you do cut all the encroaching roots and branches off and the tree dies or blows over within a few days/weeks/months then it might be easy to demonstrate that your actions were, or were at least in part, the cause. If it dies/blows over in five years time it would be less easy to demonstrate your actions were the cause.

Proportionality of cause, and therefore the proportion of any financial liability you may incur as a consequence of your actions, would be for the Courts to determine. Forewarning your neighbour that what you intend to do could result in the destruction of their property, which then comes to pass, won't help your case in Court.


Who says I believe everything I read on the internet? I just pointed out that Mac's advice appeared to contradict a post on the main page relating to this forum. A site called "Garden Law" to boot, so I think there's a reasonable expectation that what is written on there is worthy of consideration, at least. The alternative being some (no doubt well-intentioned and helpful) unknown contributors on a forum, many of which have differing opinions.

The RSPB page here: http://www.rspb.org.uk/get-involved/community-and-advice/garden-advice/planting/hedges/the_law.aspx also states quite unequivocally, "You can also prune back roots that that invade your property, even if this is detrimental to the plant. You do not have the right to cut down vegetation on your neighbours' property, or apply weedkiller to destroy the plants."

I understand that if I cut the roots and the tree subsequently dies then it's arguable I've caused it, but equally if I cut them and the roots subsequently grow back and damage whatever I've put there, then the owner could be liable. It seems unfair that I should suffer because he cannot be bothered to keep his tree under control, basically. There do seem to be cases online where people have successfully recovered their costs from tree owners for paying to have branches and roots removed. That may be an interesting route to take!
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Re: Neighbour's massive conifer very close to our boundary

Postby MacadamB53 » Fri Mar 03, 2017 1:42 pm

Hi carled,

I agree the information on the main site you refer to is a bit misleading:

The owner of the land must not put poison down, but he is entitled to cut the roots along the boundary line even if that kills the tree or shrub.

because this might be said to imply that you can not be found liable if the tree or shrub is killed as a consequence of your actions - when the truth is you can.

unfortunately, the forum members - i.e. you and I - are not responsible for the content of the main site...

good job you joined the forum and posted your query!

Kind regards, Mac
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Re: Neighbour's massive conifer very close to our boundary

Postby TO » Fri Mar 03, 2017 5:48 pm

Hi carled

carled wrote:Who says I believe everything I read on the internet? I just pointed out that Mac's advice appeared to contradict a post on the main page relating to this forum. A site called "Garden Law" to boot, so I think there's a reasonable expectation that what is written on there is worthy of consideration, at least. The alternative being some (no doubt well-intentioned and helpful) unknown contributors on a forum, many of which have differing opinions.
Far to many people hear what they want to hear, or read what they want to believe, and there are those who, for their own reasons, will support that view. Just because the sites called Garden Law doesn't mean it provides a definitive answer to every legal question, far from it. It's not just differing opinions you need to think about, it's the differing levels of competence of the contributors. Some are well meaning, but still have their own agenda to pursue, or axe to grind. Some are professionally qualified and chartered and have worked in the industry for decades in various roles, tree officer, arboricultural consultant. Sorting the grain from the chaff isn't necessarily easy.

carled wrote:The RSPB page here: http://www.rspb.org.uk/get-involved/com ... e_law.aspx also states quite unequivocally, "You can also prune back roots that that invade your property, even if this is detrimental to the plant. You do not have the right to cut down vegetation on your neighbours' property, or apply weedkiller to destroy the plants."
I'm surprised that killing the plant is ok if you sever the roots but not if you poison it. Killing it is killing it, and in so doing you are depriving the owner of their property. There has been much case law over the years, the outcome of which can be summarised as; you must not act mischievously, your actions must be reasonable, and you owe a duty of care to your neighbour such that your acts or omissions do not cause them harm.

carled wrote:I understand that if I cut the roots and the tree subsequently dies then it's arguable I've caused it, but equally if I cut them and the roots subsequently grow back and damage whatever I've put there, then the owner could be liable. It seems unfair that I should suffer because he cannot be bothered to keep his tree under control, basically.
This has been covered by the courts as well, repeatedly. Check out Delaware Mansions v Westminster City Council, and you'll get an idea as to how to deal with the encroachment and further damage issue.

carled wrote:There do seem to be cases online where people have successfully recovered their costs from tree owners for paying to have branches and roots removed. That may be an interesting route to take!
Each case will be judged on its merits. However, where it is just mere encroachment, or even where there was an actionable nuisance that the tree owner wasn't aware of, it is unlikely that the courts would find in favour of the neighbour. I'm not aware of any single case where mere encroachment has resulted in an award in court. Even paying thousands to put right damage caused by an actionable nuisance might not be reclaimable through the courts if the tree owner wasn't aware of the damage. Even if you made them aware they wouldn't be liable for existing damage. They would however, be liable for any further damage.

Nothing's ever that easy, especially when it comes to neighbours, boundaries, and trees.

TO
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