The latest position on protected trees

If you or your neighbour owns trees with a Tree Preservation Order (TPO), this is important news.

The position has just recently changed about pruning protected trees where they overhang from neighbouring land. We have in the past permitted adjoining landowners to prune back branches and roots of trees where they were encroaching onto their land provided that the works did not prejudice the health and safety of the tree or make it unsightly. This was allowed because there is an exemption on TPOs that allowed works "as far as may be necessary for the prevention or abatement of a nuisance". But, there has always been uncertainty as to what is meant by 'nuisance' because the TPO legislation does not define it. Until recently the prevailing legal opinion has been that 'nuisance' is Common Law. This can simply mean encroachment of branches and roots onto adjoining property. As a result, we would rarely require that permission be sought for the removal of overhanging branches, provided that the works were carried out in a professional manner.

This situation has changed. A recent legal case in the High Court (Perrin vs Northampton Borough Council) has given clearer direction on how the 'nuisance exemption' should be applied. It has been clarified that 'nuisance' should be interpreted as being 'actionable' in law. This means that any tree cutting works proposed would have to have the effect of preventing or abating actual or imminent damage. For example, roots undermining foundations or overhanging branches damaging a roof.

The overall effect of this is that if parts of your neighbour's TPO tree is overhanging into your garden and you want to undertake some pruning works, you may only do so without permission should you be satisfied that you are doing only the minimum work necessary to prevent or abate an actionable nuisance. If you want to rely on that exemption, it is strongly advised that you obtain a legal opinion in writing before you do the work in case we investigate alleged unauthorised works, which can result in prosecution with fines up to £20,000 per tree and a criminal record. Works simply to cut back branches and roots because they overhang your property will require an application to us and consent would normally only be granted if the proposed works were for the benefit of the tree.

Our Arboricultural Officer will be able to advise on the nature and extent of tree work that would be acceptable in line with good industry practice, but cannot make a legal judgement as to whether your case is 'actionable' and therefore not requiring an official application. If in doubt, you should make an application or seek independent legal advice or both.