IF YOU think trees and hedges occupy a part of the natural world that exists beyond the reach of the law, think again. Thousands of disputes between neighbours over encroaching leylandii or the soil-sapping qualities of overlooking trees causing subsidence prove otherwise. How does something as blameless as a tree cause such legal grief? Charles Mynors, barrister and expert on tree law, quotes one High Court judge who, in 1926, reflected that trees were subject to a “secret and unobservable operation of nature”. He adds: “In other words, they grow.”
Trees are a source of a host of legal problems for landowners, neighbours and innocent assers-by. Guy Watson, the technical officer at the Arboricultural Association, ranks the main areas of legal dispute concerning trees as, first, the dreaded leylandii; secondly, disputes relating to subsidence; and thirdly, the perceived fear of falling and dangerous trees.
While most people know a tree when they see one, the law is not quite as straightforward. “The High Court has helpfully held that a ‘tree’ is anything that ordinarily one would call a tree,” John Hornby, a partner in the City law firm Macfarlanes’ property department, says. “The Forestry Commission becomes interested if a tree is more than 8cm (3in) in diameter; whereas for conservation-area legislation the cut-off point is a diameter of 7½cm.” Hedgerows have their own statutory protection, he adds. There are a number of different bodies that protect trees — for example, local authorities grant tree preservation orders, the Forestry Commission issues felling licences and the courts govern claims to do with negligence or nuisance.
“While hedges tend to cause light problems, trees can cause much more serious problems with regards to structural damage,” David Goff, a property partner at Gordon Dadds, says. “They are incredibly thirsty and inclined to drain moisture from the soil, which can crack and lead to subsidence. The problem is proving it was the tree that caused the problem, who owns it and what their responsibility is to you.”
The danger of falling trees is, thankfully, a much less likely prospect. However, the fear of liability has long been a concern for local authorities. Birmingham City Council was fined £153,00 plus £50,000 costs after the deaths of three people when a 200-year-old ash fell down in 1999. “The law is now reasonably well- established and the only argument is about level of damages rather than the principles of liability,” Mynors says.
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It is the disputes involving high hedges that overshadow everything else. Hedgeline, the campaigning group, is aware of 10,000 hedge feuds in the UK. “The speed of growth of leylandii is matched only by the contemporaneous rise in suburban blood pressure,” Hornby says.
One such dispute in Lincoln cost two lives in June when George Wilson was shot dead by his neighbour Robert Dickenson after Wilson had confronted him on finding his hedge severely cut back. Dickenson was charged with murder and then hanged himself while on remand.
“There is no protection for people if they find their neighbour has planted very high hedges or trees rendering their garden (as opposed to their house) devoid of light and infertile at the roots of the trees,” Hornby says. There were hopes that the High Hedges Bill, introduced by Stephen Pound, the Labour MP, would plug the gap in the law. Despite huge public support, Christopher Chope, the Tory MP, talked the Bill out on the ground that such a law would limit the freedom of leylandii owners.