Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 38
When trees become litigation:
Boundaries, subsidence and
neighbour disputes
by Michael Lewis, Senior Associate & David Pack, Hannah Langford, Partners
at Devonshires.
Tree disputes rarely start as major litigation. More
often, they begin with a branch over a fence, roots
near a wall, blocked light, falling leaves, or a
neighbour who refuses to engage. But what looks
like a garden disagreement can quickly become a
property, insurance and litigation problem.
permission is refused, the Access to Neighbouring
Land Act 1992 can allow an application to court for
access where works are reasonably necessary for the
preservation of land. That is a useful remedy, but
it is not a substitute for practical engagement. In
many cases, a clear letter, proper method statement
and evidence of insurance can avoid proceedings
altogether.
For homeowners, landlords, developers and
managing agents, trees can raise a surprisingly wide
range of legal issues: nuisance, negligence, boundary
rights, access, planning controls, subsidence,
insurance claims and neighbour relations. The legal
position often depends on the facts, but the practical
lesson is consistent. Early advice is usually cheaper
than allowing a dispute to harden.
The most serious tree disputes usually involve
damage. Tree roots can contribute to cracking,
movement, blocked drains and subsidence,
particularly where soil conditions, foundation depth
and seasonal moisture changes are relevant. These
cases are evidence-heavy. A claimant will usually
need arboricultural, structural engineering and
sometimes geotechnical evidence. They may also
need to show notice, causation and foreseeability. In
Delaware Mansions v Westminster City Council, the
House of Lords considered liability for a continuing
nuisance caused by tree roots and the ability to
recover the cost of remedial works where the
defendant had notice and an opportunity to abate
the nuisance.
The most common issue is encroachment. As a
general principle, a property owner may cut back
branches or roots that cross the boundary onto their
land, but only up to the boundary line. That does
not give a right to enter a neighbour’s land without
permission, nor to damage the tree. There may also
be additional restrictions where the tree is protected
by a Tree Preservation Order (TPO) or located in a
conservation area. The Town and Country Planning
Act 1990 and related regulations explain that a
TPO can prohibit cutting down, topping, lopping,
uprooting, wilful damage or wilful destruction
without appropriate consent from the Local
Planning Authority (LPA).
High hedges raise a di昀昀erent set of issues. They are
not always best approached as ordinary litigation.
Government guidance explains that local authorities
have statutory powers to deal with certain high
hedge complaints, although the process is intended
to follow attempts at informal resolution. The regime
is speci昀椀c, and not every tall or irritating hedge will
qualify. It is therefore important to identify whether
the complaint is really about light, access, privacy,
overgrowth, boundary encroachment or general
neighbour hostility.
That means the apparently simple question, can
I cut this back, often needs a more careful answer.
Who owns the tree? Where is the boundary? Is there
a TPO? Is the land in a conservation area? Will the
proposed work destabilise or damage the tree? Is
access needed from the neighbouring land?
For commercial property owners and managing
agents, tree disputes also have a risk management
dimension. A tree that is unsafe, diseased or causing
damage may create liability if ignored. Conversely,
Access is a frequent 昀氀ashpoint. If work cannot be
carried out safely from the owner’s own land, the
neighbour’s permission may be needed. Where
EXPERT WITNESS JOURNAL
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AUGUST 2026
