All landowners are under a ‘common duty of care’ to people who may be damaged by their acts or omissions. Landowners must not expose visitors to unacceptable levels of risk. The Occupiers Liability Acts (1957 and 1984) use the terms ‘to take reasonable care’ or ‘such care as in all the circumstances of the case is reasonable’.
The Health and Safety at Work etc. Act 1974 also places a duty on employers to take all reasonable steps to ensure that employees and visitors aren’t exposed to unacceptable risks to their health or safety.
Even if an occupier has no special expertise in matters relating to trees, he or she will still be expected to act as a “reasonable and prudent landowner”’. The Law of Trees, Forests and Hedgerows, C. Mynors p147.
Under common law it is acceptable for landowners to prune back tree branches to their boundary. This even applies to roots; however, there is a proviso that with both branches and roots it is not acceptable to produce a hazard that could be a danger to people or property.
This does not mean that overhanging branches become the property of the neighbour. The branches are still the responsibility of the owner of the property on which the tree originates. This means, therefore, that dead branches overhanging from a tree owner’s land are expected to be dealt with by the tree owner so that occupants of that neighbouring land are not put at risk.
Similarly, if overhanging branches are cut off by a neighbour they still belong to the tree owner. In the past the idea was that any fruit or benefit to the tree owner from those branches should be given back to him. Nowadays, any benefits are likely to be very minor and the convention is that the parts cut off should be ‘offered back’ to the tree owner in case he may want them. Usually, it would be reasonable for the neighbour to deal with any wood arising from his decision to cut back overhanging limbs.
Trees are involved in planning regulations mainly via tree preservation orders*, conservation areas or as part of planning conditions.
A tree preservation order (TPO) is a legal document which gives the Local Planning Authority (LPA) a say in what happens to particular, identified trees, or trees on a specified area of land. A TPO is issued to cover individual trees, specific groups of trees, a specific area or a specific area of woodland. A TPO requires that work proposed to protected trees be submitted to the LPA for approval. This process should take up to 8 weeks.
A conservation area can be designated by the LPA for localities of special character. This status prevents significant changes to the surroundings without LPA consent. With regard to trees it means that no tree of diameter greater than 75mm can be pruned or removed without giving the LPA six week’s notice of proposed works.
*New TPO regulations came into force in April 2012 (The Town and Country (Tree Preservation)(England) Regulations 2012 (SI 2012/605) and can be found at http://www.legislation.gov.uk/uksi/2012/605/contents/made
The new regulations were introduced for two reasons;
1. to consolidate the existing provisions that were contained in a whole bundle of acts and regulations and
2. to streamline the existing regime in order to reduce its administrative burden and make it fairer and easier for tree owners to use.