Trees and the law

Trees add structure and drama to a garden but their size and potential to cause nuisance or damage means they can sometimes be a worry. Understanding UK law relating to trees can help everyone grasp the rights and responsibilities of tree ownership.

Inspecting a tree

Inspecting a tree

Quick facts

Trees on boundary lines are owned jointly by both neighbours
Regular tree inspection reduces liability
Overhanging branches should be offered back to the neighbour after removal
The Wildlife and Countryside Act 1981 protects bird nests and bat roosts
Windfall fruit and fruit on overhanging branches cannot be taken without consent

Suitable for...

This page is designed to give some basic, practical guidance on the most common enquiries gardeners and homeowners have relating to trees and similar woody plants.

Information provided combines both Common Law (decisions of judges in Courts of Law over the last 700 years which is still changing as new judgements are made) and Statute Law (statutes enacted by Parliament). It applies primarily to England.

It is not intended to be a comprehensive summary of how English law relates to trees and hedges, nor does it stand as a legal document. Where matters are complex or not addressed below, the RHS strongly advises that professional legal advice be sought.

Frequently Asked Questions - legal principles

What is a ‘tree’?
This is pretty simple, even in law - anything that one would call a tree is a ’tree’ (ref: Bullock v Secretary of State for the Environment, 1980).

Who owns a tree growing on a boundary?
If the base of a tree sits on the boundary line between two properties it is jointly owned by both of them (they are classed as tenants in common). If one owner fells the whole tree without permission from the other owner, that would make them liable (as this amounts to trespass). Consent should also be sought from the other owner before work is undertaken on the tree.

Where there is any doubt as to on whose land the tree lies, a surveyor will be able to assess.

Who owns a climber/creeper that is growing up a boundary wall?
A climber or creeper belongs to the owner of the soil it is growing in, not the owner of the building it is growing up. However, the owner of the property can remove it from the wall without permission, provided they do not dig it up or destroy it (either intentionally or unintentionally).

Are there limitations on what I can plant and where within my garden?
No. You have the right to plant what you want, where you want within your property. However, it is sensible and neighbourly to consider the consequences of planting potentially large or imposing trees or hedges close to a boundary and make planting decisions to minimise negative impact. Ultimately you will still be liable for any damage caused by them.

What can I do if a neighbour’s tree blocks out my light?
The Rights of Light Act 1959 states that if a property has received daylight for the last 20 years (the minimum prescribed period), they may be entitled to continue to receive that light. This means that if your neighbour builds a large fence which restrict the daylight your property receives (for example by blocking daylight reaching a window), you may be able to apply to the courts for your daylight to be restored, or for any injunction to prevent a proposed fence being built. In theory the same case can be made for large trees blocking light but trees are rarely implicated because they grow slowly and it is difficult to be precise about when the loss of light occurred.

Trees restricting light that fall within the terms of the High Hedges Act might be contested on these grounds rather than the Right to Light Act.

In all other cases there is no inherent ‘right to light’ in relation to trees or hedges.

What should I do if the tree in question is covered by a Tree Preservation Order or is in a Conservation Area?
See our advice page on Tree Preservation Orders.

Frequently Asked Questions - practical issues

Branches

Can I cut off overhanging branches?
Yes, provided it is done without trespassing onto the other person’s property. It is also permissible to climb into the tree to undertake the work, again so long as it does not require going into the neighbour’s garden/land. Note that trees covered by a Tree Preservation Order (TPO) or in a Conservation Area will require prior consent from the local authority.

Do I have to get permission from my neighbour or give them notice to cut off the overhanging branches?
No. Your actions are classed as ‘abating a nuisance’ which does not require permission. Only in situations where you need access to their land to undertake the work would permission be required. Similarly prior consent from the local authority is required for trees with a TPO or in a Conservation Area.

What do I do with the prunings?
Once branches are cut off they should be offered back to the tree owner. If the owner doesn’t want them then you will be responsible for disposing of the prunings; you can’t simply throw them over the boundary into your neighbour’s garden!

Can I cut back further than the boundary to prevent regrowth causing a problem?
No.

What if my neighbour complains about how the tree looks after I have cut off the branches to the boundary?
They do not have any legal recourse but in the interests of good neighbourly relations you might consider options for compromise, such as sharing the cost of a tree surgeon to create a balanced canopy.

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).

Fruit

Can I pick and keep the fruit from overhanging branches?
No, not without permission from the owner.

Can I collect windfalls from a neighbour’s tree that overhangs my garden?
No, not without their permission. Windfall fruit still belongs to the owner.

Fruit fallen from fruiting trees in a public space or on common land is in most cases OK to forage. If in doubt, check to see who owns the land and seek permission first.

What about liability for poisonous fruit, seeds or leaves?
The tree (or hedge) owner will be liable for damage caused by fruit, seeds or foliage but only if it overhangs the boundary.

Leaves

Can I tell my neighbour to come over and sweep up the leaves from their overhanging tree?
No. The owner of a tree is not obliged to clear up fallen leaves. The exception is if damage occurs as a result (e.g. blocked drains) in which case it is advisable to notify the tree owner in a letter.

Roots

Can I cut off roots growing into my property?
Yes. You have the same rights (and liabilities) as for cutting off branches. And prior consent from the local authority is required if the tree has a TPO or is within a Conservation Area.

What if the tree falls over after I cut the roots?
As well as rights, you have the same liabilities as for cutting off branches. So for example, if by reason of cutting through your neighbour's tree roots, the tree is weakened and falls over, you would be liable for any damage it causes. Thus it is important to exercise reasonable care before cutting any tree roots and seek professional advice for anything but the most minor work.

Insurance and liability

Is damage from trees covered by my household insurance?
Some insurers will ask how far away trees are from your home, and it's important to check the terms and conditions of your policy to see what the insurer's position is towards trees. Damage to houses (your own or your neighbour's) caused by falling trees and branches is generally covered by home insurance policies as standard, but check the wording of your cover for any exclusions.

Something that can be more problematic is the part of the tree you can't see - the roots growing under the ground. You'll be asked whether, to the best of your knowledge, the property has ever been affected by subsidence, landslip, heave, or tree root damage.

What happens if a tree causes damage through subsidence to a property but the builder didn’t dig the foundations deep enough?
Builders should be aware of existing trees and there are national guidelines that advise on depth of foundations. However, it is usually classed as the tree’s fault for having trespassing roots. Fortunately, modern Building Regulations have better property protection systems in place so cases of tree-related subsidence is very rare on new homes.

Can I argue that I didn’t plant the tree and are therefore not responsible for it?
No, not if you own the land on which the tree grows. It doesn’t matter who planted the tree. Even if it was planted by a previous owner or self-sown, liability for the tree resides with the current landowner.

If my tree causes damage can I be sued or is it all an ‘Act of God?’
A tree owner has a general duty of care not to injure their neighbour. They may be liable in negligence if:

  • the tree sheds a branch
  • injury or harm results
  • the injury or harm was foreseeable
  • the person injured or harmed was someone to whom the owner had a duty of care
  • the injury or harm was a breach of that duty

What if I had been told the tree was dangerous and didn’t do anything about it?
You would be liable if you didn’t take the necessary action after an inspection (see Further information and recommendations regarding inspecting trees).

Doesn’t the Council look after trees growing over the Highway?
No, only if the trees are growing on Council land. If the tree is on private land then the landowner is responsible.

A Council or Highways Agency may serve notice on the tree owner to require adequate clearance of hedges or trees encroaching onto pavements or roads. If the owner fails to have the work carried out, this may be done by the authority who can then bill the owner.

Cable (e.g. electric) companies have the right to keep public service cables clear but should serve notice before carrying out the work.

What responsibilities do I have with wildlife and trees?
The Wildlife and Countryside Act 1981 applies, deeming that it is an offence to damage or destroy bat roosts and the nest of any wild bird while it is in use or being built. Avoid tree work at certain times of year and check old trees for cracks and holes before doing tree work, or draw them to the attention of the tree surgeon before work.

Further information and recommendations

Inspecting trees

There is nothing set down about how often a tree should be inspected. However, if you own a tree and fail to inspect it, you will be considered to be negligent should something happen. Equally, in law if it is obvious to a layman that there is something wrong with a tree and he fails to do anything about it then he is negligent. It is particularly important to check trees after high winds.

An inspection can be done by the tree owner. The National Tree Safety Group’s ‘Common sense risk assessment of trees’ (pdf) is a good place to find information. However, for trees in high risk areas (e.g. overhanging a public footpath) or where there is any concern about the safety of a tree it is best to have a professional inspection (see below).

Getting in the professionals

For anything but the most trivial of tree work (i.e. that can be carried out with a hand saw), it is important to employ the services of a professional tree surgeon or arboriculturist. The Arboricultural Association has a directory of members.

If you are employing a tree surgeon or arboricultural consultant who is not a member of a professional body, you ideally should seek assurances that they have;

  • Professional indemnity insurance
  • Public liability insurance
  • A Level 3 arboricultural qualification

Determine whether you need a consultant or contractor (a 'tree surgeon' may be either or both). A consultant will give professional advice on the health and safety of a tree, on the potential impact on any proposed or existing buildings or any other tree issue including Tree Preservation Orders and planning regulations. A contractor will typically carry out tree pruning, bracing, planting and felling operations and be able to identify and control (where feasible) tree pests and diseases.

And if you wish them to provide a full tree inspection check that they Lantra Professional Tree Inspection training. A written report will be sent to the owner who should then carry out any work that is recommended.

See our page on hiring contractors.


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