Relevant information

 General advice for those new to hedge problems

 Reclaiming cost of 'cutting back' through the Small Claims Court.

 Potential or actual damage to buildings by roots.

 Giving notice of likely damage by roots and branches

 Some Facts about Hedging Trees

 Index pages


For Those Who are New To The Problem of a Nuisance Hedge.
Legally you may trim back the branches and roots as far as the boundary but you may be liable at law if you kill the tree.
(Be sure you take all steps to appear as reasonable. You could inform your neighbour that you intend to cut the trees back to the boundary and could invite him to make arrangements to witness the cutting. If the trees were to die of disease as a result of cutting it would then be difficult for your neighbour to take you to the Civil Courts and establish that you had deliberately killed the trees).

Topping the hedge is illegal and may land you in court, and having to pay compensation and a colossal expenses claim. This course of action is not recommended.


Dealing with The Neighbour.
As you have no rights to control the situation, your best course is, first of all to try and remain friendly, to appeal gently to your neighbour's sense of fair play and to ask for his help. Be firm in explaining your problem, but not confrontational or aggressive. If you antagonise your neighbour he can, quite legally grow the hedge to enormous heights, just to spite you.

Unfortunately some people have neighbours who will do this anyway, because they enjoy exerting power and the hedge gives them a means of doing so.

If you cannot get anywhere with friendly appeals over a long period, you can try putting your case more firmly. This occasionally works, but try to keep to relevant facts. Never become personal or abusive as this will produce a similar reaction in your neighbour. Remember he has all the real power.

You could mention to your neighbour that failure to keep the hedge suitably maintained would be almost certain to result in the invalidation of the third party damage cover, which most house insurance policies include. This means the responsibility for paying for any damage to your property, would be his own, and not his insurance company's. (Information from Mr Hooker, Chief Surveyor of 'The Subsidence Claims Advisory Bureau', - 01424 733727).

If you are still left with a problem hedge and can evoke no response from your neighbour, you may be able to use the High Hedges Law which was implemented in 2005 but in most areas this could be quite expensive. You need to follow our guides and troubleshooting adsvice if you are taking this course. Certainly try to avoid taking your neighbour to Court unless your circumstances render this absolutely necessary. Legal costs are enormous; often thousands and thousands of pounds. Cases can go on for years and can put the contestants into a state of prolonged anxiety, often taking over their whole lives.

Contents of this page

The Small Claims Court.

We now know of one member who was successful in the Small Claims Court: in the other cases we know of the neighbours have backed down at the summons stage.

One of our members took a neighbour to the Small Claims Court. Her claim was for compensation for damage to her fence by his hedging trees. On the eve of the hearing, her neighbour gave in, cut the hedge right down and paid her expenses. He obviously expected her to win.
One member took her neighbour to the Small Claims Court and the neighbour (who turned out to be a development company, as the property was rented) filed a counter claim. The Claim was subsequently withdrawn and the property company agreed to make good all damage the trees had caused and fell the trees at its own expense.(October/November 1998)
Similar reports of such out of Court settlements have come in since we received these two.
This is very encouraging but do consider the possibility of counter claims before going ahead with the Small Claims' Court, and also the fact that where damage is involved Your neighbour's expert witnesses must be paid for if you lose.

The Small Claims Court was set up to allow people to represent themselves in court, so that costs could not escalate to enormous figures. You do not need to hire a solicitor, or pay for your opponent's solicitor. There is a chance that, if the case becomes too complicated it may be shifted to the ordinary courts. If matters did get to this stage, you would probably be advised to back out. The detailed explanatory brochures sent out by local courts, make a clearly worded claim that proceedings can be stopped at any stage. There will be a requirement for you to pay for the expenses of the grower's expert witnesses, if you stop the case (This advice was put out on the basis of the Small Claims Court as it was before the changes in April 2000, so read the new brochures carefully.

There is a fixed fee, which depends on how much compensation is being claimed, e.g. 60 for 1,000 claimed, plus tax if you win. You have to fund any witnesses. There may also be a sheriff's fee, payable to have your money collected, if it is not forthcoming, but all expenses can be reclaimed if you win. The court can even enforce the money being stopped out of your opponent's earnings, if he loses. (Do not take anyone on, in these courts, who has no money).

A comprehensive explanation of all matters concerning the Small Claims Court is obtainable from your local law courts. (N.B. The documentation changed on April 1st OO. The Small Claims Court is now absorbed into a three tier system of legal action. We do not believe the set-up has changed materially but read the leaflets. There are quite substantial fees now.)

The Small Claims Court is mainly used to make monetary claims, so reclaiming the costs of professional cutting-back of overhang would seem applicable. ( remeber that you could be liable if you kill the rest of their hedge/tree.) You could say to your neighbour, "Remove the trespass of your roots and branches from my property or I will have them removed, and give you the bill." You must not risk going beyond the boundary, so you must know exactly where it is. Contesting boundaries in court is very expensive, and the outcome is never certain and goes much beyond claiming the cost of cutiing back of branches to aknown boundary. The branches and roots are legally your neighbour's property so offer him the alternative of having them back, or paying for disposal.

The free solicitor, available by appointment, at the citizen's advice bureau would supply advice on which claims are appropriate to these courts. (Tree damage to buildings and drains is difficult to prove, insurance companies often sidestep the issue, and a claim over deprivation of light, requires loss of at least 50% of measurable light, and has just about always failed in private law suits in recent years).

Clare Hinchliffe.

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Reclaiming the Costs of Cutting Back Trespassing Roots and Branches

  • A course of action, which we feel that Hedge Victims may consider using is to have the hedge cut back and then reclaim the costs in the Small Claims Court.

    Owing to the efforts of our Leicester Area Organiser, we have just received details of a hedge victim taking her neighbour to the Small Claims Court and winning her claim for the expenses of cutting back his hedge. The hearing took place about five years ago. This is the first record we have of a member actual taking a hedge owner to Court and winning. All the records we have are of members' cases which have been won and settled out of Court.

    The advice which has filtered through from lawyers that there is a basis in Law for it being a neighbour's responsibility to remove his trespassing branches and roots is well founded.

    Joan had a 42 foot hedge at 27 feet but she and her husband were not young or fit enough to cut it back. Joan read a popular Law book called 'Know your Rights' which told her she had the legal right to reclaim, by going to the Small Claims Court, the expense of cutting off the overhanging branches. She went for a free half hour's advice from a solicitor, had him write a letter and notice was given of her intention to sue for costs. After the notice had elapsed she had the overhanging branches cut and sent the Bill, which was not paid in the time given. She then took the neighbour to the Small Claims Court and won the costs of the hedge pruning. The money was paid by her neighbour the next day and he voluntarily cut the hedge down to 13 feet. Her hedge is growing again and she also has a problem in her front garden. She tells me that she is looking at the new law which came out on April 1st - ASBOs.
     

    Hedgeline's plan of action, March 1999.

    We warn members not to embark on this route unless they have tried all other ways of getting their neighbours to be reasonable, and to take copies of all letters and keep records of conversations.

    1. Get three quotes for removal of overhanging branches and/or invading roots.

    2. Give you neighbour notice of your intention to cut overhanging branches or roots and reclaim costs from him. Keep originals and send copies to your neighbour. I would get a witness to the putting of the letter through his/her door. Do this at least twice. Give the cutting date and insist that you will need cash next day.
    Let him know that you intend to have witnesses to the fact that you do not go over the boundary at the cutting and let him know you will have witnesses. Make sure you have witnesses. A refinement would be to invite your neighbour to the cutting. He will probably not come but it will then be very difficult for him to claim that you have cut a couple of twigs over the boundary.
    At this point you can still easily reconsider and withdraw and may wish to stop here.

    If the police call when contractors are there, insist that you are within your legal rights and show the letter of notice to your neighbour. Pay the contractor and keep the receipt.

    3. Small Claim's Court forms are available from the Local County Court. Fill in the form. Let your neighbour have a copy of this and the contractor's receipt. Ask for money after three days. If it does not come in a week, send off your completed form. (There is a fee at this stage, Please see leaflets from County Courts). If you win he must pay your inital fee and cost of cutting up to 5,000. (Small Claims Court only covers claims up to this figure) You will encounter only a judge in plain clothes and you do not need a solicitor. Neither party can claim any legal expenses but witnesses must be paid for.

    Give him no grounds for a counter-claim. Make sure you have witnesses that you do not go over the boundary and let him know you have have witnesses to this.

    The Small Claims Court is essentially the same as before, but the documentation and some details changed at the beginning of April 2000 when the Woolf reforms were instituted. The fees have certainly increased. The leaflets are obtainable from the county courts, and are clear and easy to understand. For complications which have appeared, see below.

    Complications

    The Small Claims Court route for reclaiming the cost of cutting back overhang is not now proving quite straightforward.

    We are hearing reports of counter claims. One very old lady from Leicester (referred to above), our first ever known small claims success, claimed the costs of cutting back a second time but was accused of cooking the books regarding her first claim The small claims judge referred the case to a higher court so she withdrew.

    Another member, when she claimed back the costs of cutting, was told she would be taken to court for harassment if her claim was unsuccessful, so she is hesitating.


    Michael Jones and Clare Hinchliffe.


  • Potential damage to buildings

    This will not be directly covered in the new legislation. In most cases it will be possible to find another reason to invoke the High Hedges Law and get the cause of the trouble satisfactorily reduced. Where hedges are very near property it may not be possible to use the High Hedges Law to get them reduced sufficiently. You may therefore wish to let your insurance company know of your nuisance hedge problem. All subsidence sufferers should be sure to contact their Insurance Companies and the Subsidence Claims Advisory Bureau, 01424 733727.

    We can supply a letter of notice to give to neighbours where there is likely to be root damage. A recent high court ruling has determined that damage by roots will be entirely the responsibility of the tree owner where sufficient notice of possible damage has been given.

    Westminster Council Successfully Sued for Root Damage.

    You may have read about the Million Pound Tree in the National press, which was delighted to report that Westminster City Council would have to pay nearly one million pounds in costs to the owners of a building, the foundations of which had been damaged by the roots of a single plane tree owned by the council. Westminster appealed against this ruling to the House of Lords, and Hedgeline is delighted to report that it lost the appeal to the highest court in the land. The House of Lords has now published its findings in a brilliant ruling, of immense interest and benefit to hedge victims.

    The case is that of Delaware Mansions Ltd v. Lord Mayor & Citizens of Westminster. The ruling was announced on 25th October, 2001, and its reference is UKHL 55. The unanimous opinion of the Law Lords is succinctly set out, and summarises the major case law relating to damage to property, particularly foundations, caused by tree roots belonging to trees on a neighbouring property.

    This is exactly the sort of case law which most solicitors know nothing about, and consequently mutter that any action concerning roots is very complicated, and very obscure and thus very expensive. Did you know for instance, that the case of Lemmon v. Webb (1894) ruled that a neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided he could do so without entering the owners land. And that a similar right of abatement by cutting applied to encroaching roots? Well, now you do.

    A letter of notice for presenting to your neighbour is available. See end of this write-up.

    The present case took ten years to resolve. Basically, the owners of Delaware Mansions (flats in Maida Vale) noticed in 1989 that cracks were appearing in one block; a survey indicated that this was because the roots of one big plane tree on the pavement outside the flats had taken so much moisture out of the ground that the foundations were dropping; the tree owners, Westminster, were informed in August, 1990, but did nothing until January, 1991, when it agreed to dig a one metre deep trench between the tree and the flats, to inhibit root growth; this work was not carried out until October, 1991; Westminster at no stage accepted that the structural damage to the flats was caused by the roots of their tree. Underpinning of the foundations became essential, and more tree roots were found; the costs escalated to 570,000, and Westminster did its best to evade responsibility for those costs. One ground of its appeal was that the only party eligible to sue for damages was the owner of the property at the time the cracks first appeared; as the ownership had changed hands, the new owners were not entitled to sue ! The Law Lords ruled that the encroaching roots and the subsequent damage caused by them amounted to a nuisance, and that it was a continuing nuisance, no matter who the owner was. As the tree owner had been informed at an early stage of the existence of the nuisance, but had taken insufficient steps to abate the nuisance, the owner of the affected property was entitled to claim damages for all repair work.

    This case clarifies the law immensely, but emphasises the importance of the tree-owner being clearly informed as soon as possible of the likelihood of structural damage being caused by the encroaching roots of their trees.

    Never again believe a solicitor who says the law in this area is not clear

    We thank Dot Sharman, London Area Organiser, for bringing the case to light.
    Alan Bridgman ('Guidelines' negotiator and adviser on court cases).

    Letter of Notice

    A letter of notice for sending to a neighbour who is growing a problem hedge, which is likely to cause damage to your property, is available here.

    Letter of Notice (rtf)   Letter of Notice (Word)

    The very best alternative is for your insurers to write to the grower, but if the victim sends the letter himself there is good reason for him also to send a copy to his insurance company for witnessing and no harm in insisting that the insurer does witness it. If the victim sends the letter to the grower it is most important that any supporting letter, with Alan's letter of notice, should be polite (nothing which anyone could call harassment). Alan's letter is forceful enough on its own.

    The content of a covering letter could incorporate the following:-

    DO NOT take a 'harrassing' tone in this covering letter to your neighbour and please remember that:-

    Hedgeline volunteers are not necessarily legally qualified, and Hedgeline policy is to advise members NOT to go to law unless absolutely unavoidable. Hedgeline advice is given in good faith, but no responsibility is accepted for the decision of individual members to enter into litigation.

    Hedgeline does not accept any active involvement in any individual's litigation.

    Government research being done on genetic fingerprinting to identify tree roots



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    We wish to give to hedge victims all the help we possibly can. We are basing this advice on our own experience and on that of other members of the group but we must make it clear that we are not legal experts, and that no member of Hedgeline can take any responsibility for any misunderstanding or adverse consequence, of whatever kind, or however caused, which may arise from the use of the contents of this website.
    This page was written and constructed, and is maintained by Clare.

    Created on a Mac
    Copyright Clare, Hedgeline.