Taking my neighbours tree down wqithout his consent

[Tony K]

Evening.

 

As I understand it I have the legal right to cut back the roots of a neighbours tree where those roots come onto my land, in the same way that I have the right to cut back overhanging branches. I also understand that I am liable if, in so doing, I kill the tree or make it unsafe.

 

Does anyone know how I might compel my neighbour to allow me access to his land to remove his tree, the roots of which I will have to remove to a significant extent when putting in foundations for my selfbuild?

 

My self build obtained planning permission despite the reservations of the Council tree officer about the impact of my footings on this tree, a semi-mature Robinia located in my neighbours garden. The tree is not protected by a TPO, and we are not in a conservation area. The tree is right up tight to the boundary, and half its roots are therefore on my land, in the footprint of my new house. I have yet to start building.

 

Initially the Council granted planning permission for my selfbuild on the condition that my foundations be designed to protect the roots of the neighbours tree. I submitted a piled raft design, but the Tree officer felt that even with piled foundations, the wall of the new house was just too close to the trunk of the tree for the two to coexist. Planning permission has already been granted though, and cannot be reviewed, meaning that the condition falls away - I work in planning and am confident of that. All that remains is a potential civil issue between myself and my neighbour over the tree.

 

I've emailed the neighbouring landowner - an absent landlord - and asked his permission to remove the tree. I've offered to replace it with two good quality, smaller trees. Thing is, he never replies to anything. I am uncertain of how to proceed in the absence of his consent.

 

It seems plain that he can't stop me from ripping out the roots on my side, and I could just proceed to do that. However, by doing that but not removing the tree as well I would be creating a unsafe tree, both for me and his tenants, which I don't want to do. 

 

If I don't hear back from him, how can I take this forward? I am aware that the Access to Neighbouring Land Act may be an answer, but am unsure that it caters for this situation and would be grateful for any practical experience and/or alternative solutions anybody has.

 

Thanks

[Ferdinand]

ANLA is to do with maintenance of existing structures.

[Big Jimbo]

Easy tiger. I know plenty of people who would wait for your house to be half built, then set it alight, for chopping down a tree that was not on your land. You are right that you are able to cut all overhanging branches, and roots, but if you kill the tree, or it keels over, you will be liable. I understand your frustration, but you can't just destroy somebody else's property, because it happens to be of benifit to you. I would sue your butt so far down the road you would have no money left to build your house. P.S I'm not your neighbour, but if i was i would want Two new trees, and £10k minimun. And, that's if i liked you.

[bassanclan]

I imagine the tree is trespassing, I suggest you sue the tree!

[Tony K]

51 minutes ago, Big Jimbo said:

Easy tiger. I know plenty of people who would wait for your house to be half built, then set it alight, for chopping down a tree that was not on your land. You are right that you are able to cut all overhanging branches, and roots, but if you kill the tree, or it keels over, you will be liable. I understand your frustration, but you can't just destroy somebody else's property, because it happens to be of benifit to you. I would sue your butt so far down the road you would have no money left to build your house. P.S I'm not your neighbour, but if i was i would want Two new trees, and £10k minimun. And, that's if i liked you.

I appreciate what you say, and of course the tree is not mine to take down but in terms of doing such works as will kill it the thing is, I can do that anyway, can't I? I have planning permission to build on my land and the legal right to remove the roots and branches on my side of the boundary. 

 

Nothing I have read says either of these rights are suspended by likelihood of the tree dying, only that I am liable if it does. 

 

I am happy to accept that liability. That's exactly what I'm trying to do. I simply want to avoid the creation of an unsafe situation which will likely occur when I do exercise my rights. 

Edited April 27, 2020 by Tony K

[Temp]

 

2 hours ago, Tony K said:

Initially the Council granted planning permission for my selfbuild on the condition that my foundations be designed to protect the roots of the neighbours tree. I submitted a piled raft design, but the Tree officer felt that even with piled foundations, the wall of the new house was just too close to the trunk of the tree for the two to coexist. Planning permission has already been granted though, and cannot be reviewed, meaning that the condition falls away - I work in planning and am confident of that. All that remains is a potential civil issue between myself and my neighbour over the tree.

 

I'm quite interested to know how the condition "falls away"? Is it because the Tree Officer believes that no foundation design can comply so the condition is unreasonable and therefore unenforceable?

 

2 hours ago, Tony K said:

All that remains is a potential civil issue between myself and my neighbour over the tree.

 

As far as I know planning permission doesn't give you any rights over the tree. There are quite a few other situations where a grant of planning permission isn't sufficient to allow a house to be built. 

 

2 hours ago, Tony K said:

I am aware that the Access to Neighbouring Land Act may be an answer

 

As I recall this allows access for maintenance of existing buildings only NOT for the purpose of building anything new let alone cutting down trees... But I might be wrong as it's awhile since I looked at it.

 

We piled our garage and that didnt stop it killing a tree a few meters away many years later. I don't think it was the piles that did for it but the proximity of the wall as your tree officer suggested. The tree had a TPO on it as well. We plan to replace it later this year when the season is right for planting trees.

 

[Temp]

1 hour ago, Tony K said:

appreciate what you say, and of course the tree is not mine to take down but in terms of doing such works as will kill it the thing is, I can do that anyway, can't I? I have planning permission to build on my land and the legal right to remove the roots and branches on my side of the boundary. 

 

The right has limitations...

 

https://www.tbilaw.co.uk/site/blog/Business-News/what-can-i-do-about-my-neighbours-tree

 

Quote

You do have the right to cut the branches or roots back to the boundary and you do not need the consent of the tree owner before doing so, although it  is usually advisable to try and obtain consent to avoid any potential dispute.

This right is subject to some limitations.  The cutting back must not make the tree unstable or cause it to die.  The branches or roots which are cut off must be returned to the tree owner.
 

 

 

 Since you know your actions might kill the tree you could also liable for damages due to negligence not just the replacement cost of the tree. The reason I know this is because I once was part of a group that was advised by a solicitor to write to a neighbour to make certain he was aware of problems his development might cause if he went ahead. You become liable for negligence damages if you know your actions might cause a liability but do it anyway. Writing a letter prevented him from later claiming ignorance. In my case it wasn't about trees but did involve a neighbour's plans to build something. 

 

Edited April 28, 2020 by Temp

[Temp]

This is about cutting back branches but same applies to roots..

 

https://www.rhs.org.uk/advice/profile?pid=1022

Am I liable if I cause damage to a neighbour’s tree as a result?
Yes. In law you would be considered negligent. Sometimes branch removal can lead to tree failure due to disease, a change in the balance of the tree, or different wind loading that causes the tree to blow over. For these reasons it is important to employ a competent tree surgeon or arboriculturist who could minimise risk and would take on the liability for the work (check they have public liability insurance prior to engagement of services).

 

[nod]

You need to be very careful If it states in your PP that you must protect the tree you need  to do that 

You need to go back to planners for a solution.  It May well be that they find that complete removal and re planting is what they come up with 

Your other option is to remove the tree and take what follows 

 

[ToughButterCup]

8 hours ago, Tony K said:

...

how to proceed in the absence of his consent.

...

Focus on finding the landlord.  Talk.

[Pete]

We had a similar issue in that we had a massive Yew tree on the other side of a 10ft wall that the Tree officer thought would impact on our build. He then gave us a list of things we had to do which included hand digging (no machinery)within a certain distance of the tree, root protection etc. I spoke to the local who had worked with trees all his life, laid hedges etc and he said Yew trees are bomb proof and there was no need for all the precautions set out in our PP. 

We then dug down carefully (with machinery) and never came across a root so do your homework. This Yew tree is about 15m tall so has been around a while and is still there to be enjoyed.

[Jeremy Harris]

7 hours ago, Temp said:

There are quite a few other situations where a grant of planning permission isn't sufficient to allow a house to be built.

 

 

Very true, the exact situation we were in.  Delayed the purchase of our plot for a year, as the house that had planning consent could not physically be built on the plot.  Planning consent confers no rights to actually be able to build the house that's been approved at all, as I found out.

[ProDave]

Here is another thought.

 

Absent non communicative land owner next door.

 

You cut the branches and roots of the tree and build your house very close to said tree.

 

The tree dies.  Landowner either does not notice or care  and it stands there dead for a few years.

 

A big storm blows through and the dead tree lands on your house.

 

Who do you think would be responsible?

 

 

[ToughButterCup]

38 minutes ago, Jeremy Harris said:

Very true, the exact situation we were in.  .... Planning consent confers no rights to actually be able to build the house that's been approved at all, as I found out.

 

Failure to realise that caused us a full years worth of overthinking and worry .  Its very common to solve the impossible foul drainage problem post hoc.

[ToughButterCup]

Just now, ProDave said:

Who do you think would be responsible?

 

Nasty .... 

How about build up-wind ?

[Gone West]

I had Robinias at my last two houses and bearing in mind Robinias are not native and can suffer damage in cold wet winters how do you prove what killed it.

[ProDave]

It is a shame BC and planning are not more integrated.  Our planning had a proposed drainage system (filter mound) but that was rejected by BC and we ended up discharging to the burn (which is much better)

 

I guess technically we have not built exactly what planning agreed because we don't have a big hill in the middle of our garden.

[ProDave]

13 minutes ago, AnonymousBosch said:

 

Nasty .... 

How about build up-wind ?

You know what happens when you get a string wind from the "wrong" direction.

 

At the previous house a big beech tree blew down, but from a northerly wind landing it in the farmers field behind us.  The usual SW wind would have left it across the burn and much harder to chop up and remove.

[Jeremy Harris]

6 minutes ago, ProDave said:

It is a shame BC and planning are not more integrated.  Our planning had a proposed drainage system (filter mound) but that was rejected by BC and we ended up discharging to the burn (which is much better)

 

I guess technically we have not built exactly what planning agreed because we don't have a big hill in the middle of our garden.

 

We ended up with our final planning consent that physically couldn't be complied with, as the planners hadn't realised that two of the conditions they had imposed were mutually incompatible.  The planners imposed a highways condition about the maximum allowable drive gradient and an Environment Agency condition about the height above ordnance datum for the parking area, and we could only comply with one of them, not both.  We ended up getting the highways condition rescinded, although this was only done via email, so I have wondered whether or not we still have an undischarged condition sat on a file somewhere.

[Carrerahill]

11 hours ago, Tony K said:

Evening.

 

As I understand it I have the legal right to cut back the roots of a neighbours tree where those roots come onto my land, in the same way that I have the right to cut back overhanging branches. I also understand that I am liable if, in so doing, I kill the tree or make it unsafe.

 

Does anyone know how I might compel my neighbour to allow me access to his land to remove his tree, the roots of which I will have to remove to a significant extent when putting in foundations for my selfbuild?

 

My self build obtained planning permission despite the reservations of the Council tree officer about the impact of my footings on this tree, a semi-mature Robinia located in my neighbours garden. The tree is not protected by a TPO, and we are not in a conservation area. The tree is right up tight to the boundary, and half its roots are therefore on my land, in the footprint of my new house. I have yet to start building.

 

Initially the Council granted planning permission for my selfbuild on the condition that my foundations be designed to protect the roots of the neighbours tree. I submitted a piled raft design, but the Tree officer felt that even with piled foundations, the wall of the new house was just too close to the trunk of the tree for the two to coexist. Planning permission has already been granted though, and cannot be reviewed, meaning that the condition falls away - I work in planning and am confident of that. All that remains is a potential civil issue between myself and my neighbour over the tree.

 

I've emailed the neighbouring landowner - an absent landlord - and asked his permission to remove the tree. I've offered to replace it with two good quality, smaller trees. Thing is, he never replies to anything. I am uncertain of how to proceed in the absence of his consent.

 

It seems plain that he can't stop me from ripping out the roots on my side, and I could just proceed to do that. However, by doing that but not removing the tree as well I would be creating a unsafe tree, both for me and his tenants, which I don't want to do. 

 

If I don't hear back from him, how can I take this forward? I am aware that the Access to Neighbouring Land Act may be an answer, but am unsure that it caters for this situation and would be grateful for any practical experience and/or alternative solutions anybody has.

 

Thanks

This isn't what you will want to read but as I see it there should have been consultation with the neighbouring landlord at planning stage. This is the issue with the bureaucracy that is planning in this country, it seems to totally neglect certain very critical details and issues. Given that this tree is a pivot point for the whole build why wasn't it fairly high up on the list of things to resolve at the beginning of this process and if unable to be resolved the building altered to suit.

 

There are clearly many options here, but the only option I would currently pursue is making contact with the neighbouring landlord and hope he/she is a nice person! Possibly you are going to need to setup a meeting, and their number may be obtainable from the tenants.

Edited April 28, 2020 by Carrerahill

[Carrerahill]

2 hours ago, AnonymousBosch said:

Focus on finding the landlord.  Talk.

Best piece of advice yet.

[Ferdinand]

1 hour ago, Carrerahill said:

There are clearly many options here, but the only option I would currently pursue is making contact with the neighbouring landlord and hope he/she is a nice person! Possibly you are going to need to setup a meeting, and their number may be obtainable from the tenants.

 

Their contact details should be on the Registration details you can get from the Land Registry for £3.

 

Or ask the tenant, or the agent if they use one.

 

Of course, they will have been consulted in the statutory process when the PP was put through, but it only gives a few weeks and there is no guarantee it made it to the LL within the period or at all.

 

I have a huge extension for next door on the boundary of one of my rentals because the docs did not get through, and I was not sufficiently on the ball then. He tried to do some unacceptable things such as a balanced flue over my garden, and it was a hell of a performance to get them changed.

 

Ferdinand

Edited April 28, 2020 by Ferdinand

[Tony K]

10 hours ago, Temp said:

 

 

I'm quite interested to know how the condition "falls away"? Is it because the Tree Officer believes that no foundation design can comply so the condition is unreasonable and therefore unenforceable?

 

 

As far as I know planning permission doesn't give you any rights over the tree. There are quite a few other situations where a grant of planning permission isn't sufficient to allow a house to be built. 

 

 

Yes, it falls away because it is unenforceable. The formal process is to apply to have the condition removed, which I may yet do. In this case my Council planning officer just wanted it off his desk and so (at my suggestion) discharged the condition (i.e. approved the foundation details) but with an informative stating that conflict with the tree was inevitable, even with piled foundations. In so doing the Council demonstrated the error on their part - they either should have refused my planning application at the outset on the basis of harm to the tree, or approved it without condition. 

 

As you rightly say, planning permission is only one hurdle to be negotiated in the process of building a house. Others include the building regs, and any civil issues. Many projects clear one or two of these hurdles only to fall at the other. 

 

10 hours ago, Temp said:

 

The right has limitations...

 

https://www.tbilaw.co.uk/site/blog/Business-News/what-can-i-do-about-my-neighbours-tree

 

 

 

Thanks for this link. The apparent conflict between my right to cut back roots on my land and his right not to have his tree killed by my actions is addressed clearly in the advice:

 

'This right is subject to some limitations.  The cutting back must not make the tree unstable or cause it to die.'

 

However, the same advice also goes on to say that:

 

'A tree owner has a duty to do what is reasonable in all the circumstances to prevent or minimise the risk of interference with or damage to the property of his neighbour where:  (a) he knew of the encroachment of the tree roots or branches or ought to have been aware; and (b) there was a reasonably foreseeable risk of damage to property or enjoyment of it as a result of the encroachment.'

 

'A court has ruled that the party causing the nuisance is entitled to notice of the nuisance and a reasonable opportunity to abate it before any liability for remedial expenditure can arise.  

If the tree owner is not co-operative action can be taken to obtain an injunction (to stop the nuisance continuing) and/or to obtain damages to compensate you for your loss.'  

 

I wonder whether my 'enjoyment' of my property includes being able to build on it? It certainly is an interference with my property and there seems to be some acknowledgment in law that a tree owner has to address the impact of their tree.

 

2 hours ago, Carrerahill said:

This isn't what you will want to read but as I see it there should have been consultation with the neighbouring landlord at planning stage. This is the issue with the bureaucracy that is planning in this country, it seems to totally neglect certain very critical details and issues. Given that this tree is a pivot point for the whole build why wasn't it fairly high up on the list of things to resolve at the beginning of this process and if unable to be resolved the building altered to suit.

 

There are clearly many options here, but the only option I would currently pursue is making contact with the neighbouring landlord and hope he/she is a nice person! Possibly you are going to need to setup a meeting, and their number may be obtainable from the tenants.

 

The landlord was consulted and objected. Funny story. Before my planning application I asked him how he felt about putting together a deal for me to have use of part of his land for parking, as my land has no vehicle access. His principal concern was keeping his tenants happy as they are paying over the market rate in rent, and he might not achieve that again if they leave (his words). Even so, he was happy to look at various options on a deal and we agreed I would explore with the planning dept. 

 

I submitted an application to build on my land and park on a bit of his. His tenants objected, and got on to him about it. He then wrote to the Council saying that he knew nothing of this application, that I didn't have any agreement to use his land and that he wouldn't let me use it. 

 

What I don't think he knew was that letters of objection are published. I tried to contact him to see if I had misunderstood our previous conversations. Absolutely nothing heated, all very polite, but he just wouldn't respond. I think he got caught between wanting to keep the income from his tenants and the prospect of income from me. 

 

In the end I just removed his bit of land form the planning application and it got approved.

 

I have asked him if he minds me taking it down, but he hasn't responded. I will probably offer him and his tenants some money. I'm happy to do that, but I just wanted advice on how to proceed if he just stays silent. 

 

Edited April 28, 2020 by Tony K

[Bozza]

If It was me I would offer him cash to compensate for the removal of the tree.  If he declines then change your design / layout to protect the tree. The landlord will be financially motivated.  There will be a cost to changing your design to accommodate the tree.  Work out what that is to you.  Then offer him something similar.    The offer of cash should provoke a response and in fact that may well be his strategy holding out for a £ offer.     Be straight with him just say look it’s going to cost me ££££ to change my design so I’m happy to offer you £££ to keep my original design.    Knowing the tree issue is known by you, planners and him I would be very very careful about doing anything that could provoke legal recourse or a neighbourly dispute.  
 

Trees more rights than humans when it comes to planning as I found out myself with my build.

[ProDave]

Just how far away from your house is this tree?

 

I built 5 metres from a Willow tree.  I was surprised just how few tree roots we encountered digging the foundations.  Not surprising in my case as the tree is right next to a burn so that's where most of it's roots will be and where it gets most of it's water.