Barcham trees and the law seminar report

Charles Mynor has led a seminar updating on trees and the law at Barcham Trees.

Barrister Mynors presented to 60 local authority tree officers and other tree care professionals. 

Mynor spent nine years as a planning officer at the Royal Borough of Kensington and Chelsea, during which time he also qualified as a chartered surveyor. Called to the Bar in 1988 (Middle Temple), he has built up a general practice on planning and is the leading specialist in the law on trees, listed buildings and outdoor advertising. He is the author of The Law of Trees, Forests and Hedgerows, the only textbook on the subject. Originally published in 2002, a second edition appeared in 2011.

He began by pointing out that trees as wildlfe habitat now have much more protection than they do simply as trees. But he said the law on trees is disjointed and there is no ‘big picture’ to which we can refer.

Mynor said a tree is owned by the freehold owner of the soil in which it grows, and often several people may have an interest in this land. If a property is occupied by a leaseholder, sub-leaseholder, licensee or mortgagee, the terms of the agreement should determine responsibility, but often leases and tenancy agreements fail to mention trees.

Trees on the boundary between properties are an inevitability, but when the roots of a tree pass from property A to property B they remain the property of the owner of the tree. If the tree is actually on the boundary it is then owned by two parties in common. In any case, the permission of the tree owner must be sought before a tree may be cut back by another party.

If person A comes on to land owned by person B and damages it, that is trespass. The law says that you may not do something on your land which annoys a neighbour, as that action constitutes nuisance, and the offended neighbour may seek an injunction. Trees can present a mixture of both trespass and nuisance when they overhang into an adjoining property, and are unique in law in being a ‘nuisance’ if they cross a boundary. There is a right in common law to ‘abate the nuisance’, which generally means cutting back the offending overhang to the boundary. This may be done without telling the owner of the tree. The owner of the tree can also be asked to cut back the tree at his own expense, and any branches cut off remaining the property of the tree owner. While there may be a right to abate, we also have a duty of care towards our neighbour not to damage his tree badly in the process. If any such damage only becomes apparant some while after the pruning took place this becomes a difficult legal area, so it is better for the tree owner to make any claim sooner rather than later.

When a tree is exactly on a boundary, if persons A and B both own a tree in common, they both own all the land on which the tree stands as ‘tenants in common’, but the law is not clear in this regard. In the USA neighbours may prune the tree on their side, but may not touch the trunk. Mynor feels this is a sensible approach, but English law is not at present like this. We must takes trees as we find them now, not as they originated. For example, a tree may originally have been on A’s land, but as it has grown it is now on the boundary between A and B. Local authorities much prefer it if any disputes involving boundary trees can be resolved aimcably without their involvement.

Root damage can be a problem and a source of dispute, and it must be proved that roots are causing the problem for which they have been blamed. Level monitoring and DNA monitoring are both important, while crack monitrong can also be useful in some cases, as it may show which way a building is twisting.

Mynor discussed negligence, which is a wide concept and linked to a duty of care. Tree owners have a duty of care to any person on their land (under the Occupiers’ Liability Act), to neighbours and to the highway and its users if a tree could fall into the highway. Anyone taking over ownership of a property is expected to make any necessary improvement to a potential threat with a reasonable time. The law does not allow anyone to walk away from a risk they own. Mynor pointed that the financial means of a tree owner is not taken into consideration when remedial work is required.  

Tree owners should be seen to take a reasonable and sensible approach, such as having them  inspected by someone with sufficient relevant experience fairly frequently, but there is no absolute standard in this matter. Rather it is a case of what is considered ‘reasonable’.  Where an inspection identifies a problem, remedial action should be taken promptly. Many tree defects are not apparent from a ground-level inspection, so a climbing inspection may be necessary in some cases. Internal defects, however, cannot be spotted.The courts nowadays are sensible about  matters of negligence, said Mynor, and reject many cases where people sue tree owners. The majority of cases do not come to court because the tree owner either admits liability or it becomes apparent the claimant is ‘trying it on’.

An Environmental Impact Assessment is required by the EU on many matters, and not just on those relating to work on trees. The Wildlife and Countryside Act and European Protected Species regulations mean that bird and bat protection are strictly non-negotiable, with all species of bats being protected by law.

Mynor said the law concerning Tree Protection Orders (TPOs) has changed recently, with the result it is now much easier to issue or update a TPO. All existing orders, whenever made, can now be ignored, with the exception of the name of the order and the tree or trees concerned.  Dying trees used to be exempt, but they are no longer. But one new exemption is the removal of dead wood from a living tree. In the past, trees were usually preserved for their visual amenity, but now they can be preserved for a variety of reasons including habitat, historical importance and even fragrance. The term ‘amenity’ is no longer viewed as a purely visual matter.

In the past 10 years there have been more challenges to TPOs than in the previous 50 years put together -  a situation which Mynor attributes to our increased propensity for litigation.  Tree Protection Orders can now only be challenged for the first six weeks after their confirmation, and after that time nothing can be done.

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