Legal Question of The Week 19/10/2018
My neighbour’s shrubbery is overhanging the fence into my garden, can I chop it down?
General duty between neighbours
There is a duty of care established between neighbours in these circumstances. When a property owner is aware, or ought to be aware, of the overhanging shrubbery from his property and that there is a reasonably foreseeable risk that damage could be caused to their neighbours’ property, they must take reasonable steps to minimise the risk to the neighbouring land.
Action the neighbour can take
The first step would be (subject to the circumstances) to ask the tree-owner to cut back the branches that are encroaching on to your land. If they refuse to do so they cannot be forced.
However, the case of Lemmon v Webb (1895) established that that branches overhanging onto the neighbouring land constitute a nuisance and may be cut back by the owner or occupier of the neighbouring land.
This is known as 'abatement' and gives a neighbour the right to cut back shrubbery that overhangs onto their land to the point of the boundary between their land and their neighbour’s.
Cautions that should be noted before abatement
While abatement seems to give free rein for the neighbour to cut back the shrubbery, the following cautions must be considered to prevent future disturbance:
- The cuttings of the shrubbery should (in theory) be offered back to the neighbour who owns it to prevent any future claims for conversion or theft.
- The shrubbery should not be cut back in a manner that causes it to become unstable or die. This means unless the work is minor, it would be advisable to instruct a professional in this practice.
- If it is a tree that you are cutting back it would be worth making sure that it is not protected under a Tree Preservation Order. If it is protected then consent may be required from the local planning authority before cutting the tree.
- Make sure there are no nesting birds within the shrubbery you wish to cut. There are various Acts and Directives that protect birds as well as other wildlife which you could breach if this precaution is not taken.
Who pays for the abatement?
There is no current authority stating that the owner of the tree must reimburse costs of abatement undertaken by the neighbour. This means it is likely the neighbour who abates the shrubbery is likely to be responsible for the costs of work, unless it is agreed between themselves and the owner of the tree that a different approach is to be taken.
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