It is very common for a tree belonging to a third party to grow and for the branches to overhang into your garden or for the roots to encroach under your land and cause an annoyance or potential damage. 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 and you should check that the tree is not subject to a tree preservation order (TPO) as it is a criminal offence to prune a tree which is subject to a TPO without consent.
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.
The steps which a tree owner will be expected to do will be proportional to the foreseeability of the risk. If a risk of damage is there but is unlikely to happen then the tree owner will not have to take the same steps as he would be expected to if there is a real and imminent risk of damage. For example, a tree owner would not be expected to remove all his trees on the basis of a suspicion that a small number of them may cause damage.
If damage has been caused to your property you should notify the tree owner and they will need to respond to that damage in a reasonable way and take action to avoid the problem becoming worse. 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.
These and many other similar issues our Commercial Team answer every day. It can be a Commercial Property query or sometimes a Commercial Disputes one either way simply get in touch if you need any advice.
