All of a sudden my garden seems to have come alive since my article last month. The combination of the hot days followed by wet stormy nights and the fact I finally found the time and enthusiasm to clear out my greenhouse means we have flowers and leaves and overgrown bushes seemingly overnight.
It does however bring other challenges, one which we faced this month in Marlborough Law. We were consulted by an individual whose car had been damaged when it was parked outside a neighbour’s fence which had an overhanging tree which cracked in the storm causing a rather large branch to fall onto the car and leave a deep scratch on the paintwork.
The neighbor had called it “an act of God” and refused liability for the damage commenting that it was impossible to check the condition of all his trees when a storm is brewing.
However this is not the case legally speaking. Any owner of land next to a road owes a common law duty to take reasonable care to avoid acts or omissions, e.g. not removing a broken branch which overhangs the road, which he can reasonably foresee would be likely to injure a neighbor or his property. The same duty applies regardless of whether a tree is next to a public road or any other land.
The land and tree owner may be liable in negligence, nuisance (or both negligence and nuisance) if damage or injury is caused to a car, motorist or pedestrian by a tree encroaching onto the road from private land.
To avoid the risk of litigation, it is a good idea to have trees that are close to roads regularly inspected. It is suggested that the frequency and detail of inspection should depend on how often the particular road is used.
Another area of neighbourly disputes includes occasions where tree branches or roots encroach onto neighbouring land. If this happens the owner of the neighbouring land has the right to cut back the encroaching branches to the boundary. This is known as the common law right of abatement
However where tree branches or large bushes overhang a public road, the highway authority does not have an absolute right of abatement. They will normally rely on its statutory power to act, which arises where a tree, hedge or other vegetation is causing an obstruction of the highway. They can do this regardless of who owns the trees or bushes. Section 154 of HA 1980 grants the highway authority a discretionary power to serve notice on the owners of hedges, trees or shrubs which overhang a road or access point. If they issue a notice then the owner of the vegetation must pay the costs of the work done which will be considerable more than tending to it yourself.
This is not a sign for everyone in the village to take a walk out and tackle all those home owners with trees and bushes overhanging the road or worse, report them to the Highway Authority, but just to alert all of us who have trees and bushes to be a little more vigilant while taking that evening stroll round the garden.
Until after the summer break – Stay Safe and Stay Legal.
