As discussed in a previous article, the High Hedges (Scotland) Act 2013 (“the Act”) can provide light (both metaphorically and literally) for those aggrieved by their neighbour’s trees. There are, however, many situations where the three-fold test of the Act cannot be met and other significant problems may be caused by trees and hedges. For example, overhanging branches may be an inconvenience and roots can affect ground stability; a tree may cause significant damage to property if it falls, and the outlook from buildings may be negatively affected by a looming shrub.

There is no legal requirement to keep trees and hedges trimmed nor to prevent roots spreading over boundaries; neither is there any general legal right to light in Scotland. And while disputes (or certainly the cases focused on by the press) may arise more often in more populous areas, with space at a premium and homeowners keen to preserve the amenity of their property, the potential for problems of course arises country-wide.

Below we look at some of the considerations for those situations where the Act doesn’t provide the answer. As with most neighbour disputes, the best course of action is likely to be a discussion with the aim of reaching a resolution acceptable to all parties.

Determining ownership of trees

In the first place, it is important to work out who owns the tree.

The courts have followed the rule that ownership is determined by the stem (or trunk) of the tree. If the stem is on one side of the boundary then the whole tree is owned by the landowner on that side. However, if the stem is on the boundary itself, then the tree is ‘common property’, with ownership shared by each landowner. If a tree is common property then it cannot be felled without agreement between all owners in common. Common ownership will also be of relevance when making claims on home insurance if a tree causes damage.

Where there is any doubt about ownership it is likely that a surveyor can assess.

Self-help

The legal position is rather unclear if a tree is owned in common but if it is owned by one party, and an amicable resolution cannot be reached, the affected party may be entitled to take practical action.

Branches

If your neighbour’s tree branches overhang your boundary, then your land is subject to an ‘encroachment’ which, even if trivial, is a legal wrong. The landowner encroached upon has the right to remove the encroachment and you can therefore lop overhanging branches without asking the neighbour’s permission or giving them notice. It is worth noting that you cannot enter your neighbour’s property to action this (and cannot position your equipment on their land, or even allow it into their airspace) and you cannot keep any branches you remove, as they belong to the tree’s owner.

Roots

Encroachment also occurs when tree roots spread to your property and, again, you have the right to remove these. Roots are, of course, less likely to be noticed unless they are causing damage to ground stability or building foundations. While in theory, as with branches, a landowner has the right to remove the roots simply because they are on or in his land, even if they are causing no damage, doing so in the absence of any real need could be looked at negatively by the authorities if the result is damaging to the tree as a whole.

There is greater chance of damage to the tree, or buildings within close proximity, when dealing with roots - so it is best practice to involve a professional. Cutting the roots may affect the stability of the tree and if it subsequently falls and causes damage, this could result in a claim against you.

Do Tree Preservation Orders (TPOs) change anything?

Before undertaking any works to a tree, you should check if it is affected by a TPO. There are also restrictions on undertaking works to any trees within conservation areas, whether or not they are also protected by a TPO. It is a criminal offence to uproot, fell or lop a protected tree without the necessary consent from the planning authority. Information on whether land is within a conservation area, and what trees are affected by TPOs is available from local authority websites.

There are exemptions from the requirement to obtain the consent of the planning authority before carrying out works to a protected tree. These include:

  • works which are urgently necessary in the interests of safety;
  • works in implementation of a planning permission;
  • works necessary for the prevention or abatement of a nuisance; note that “nuisance” in this context means a legal nuisance, rather than just an inconvenience to the affected landowner. Whether or not works are necessary is a matter of objective rather than subjective opinion. It would be unwise to rely on this exemption without legal confirmation (from a court) of the existence of a nuisance and what works are necessary to prevent or abate it.

Legal Remedies

Litigation

A landowner affected by an encroaching tree can also seek remedies through the courts. The principal right is to have the encroachment removed through an action of interdict, although there are certain circumstances where this remedy may not be granted by the court. These include where the inconvenience and/or damage caused to the owner is minimal or if the loss caused by the removal of the encroachment is disproportionate, though the latter argument is more likely to be encountered in the case of an encroaching building than plants. If the encroachment is not to be removed, the affected owner may be entitled to damages.

Title conditions

As noted above, there is no general right to light in Scotland and therefore trees which neither physically encroach nor fall into the category of a “high hedge” under the Act, can continue to be a problem for landowners. Assistance in this situation can sometimes be found in the title deeds to the property, which may contain a restriction on trees and bushes above a specific height or perhaps restrictions on additional planting. Such conditions are most likely to be found in the titles of modern housing developments but may also appear in other titles, so it is worth checking your deeds (and those of your neighbour, if you are able to obtain copies).