Highway trees and the council's separate powers

The tree on the verge outside your house belongs, in all likelihood, to the highway authority, and the rules that apply to it are not the rules that apply to the tree in your garden. Tree Preservation Orders, conservation area notices and planning permission barely touch it. Instead the council acts under the Highways Act 1980, in its capacity as highway authority rather than as local planning authority, and the two roles have different duties, different budgets and often different officers.

Who owns the tree outside your house

Ownership follows the land. A tree standing within the adopted highway, which includes the footway and usually the grass verge, is the highway authority's responsibility. In a two tier area that is the county council. In a unitary or metropolitan authority it is the same council wearing a different hat. In London it is the borough, except on the Transport for London road network, where it is Transport for London.

A tree just inside your boundary is yours, even if it overhangs the pavement, and a tree on an unadopted road is usually the frontagers' collective problem. The boundary between adopted highway and private land is rarely where people assume, and the authority's highway records are the place to settle it rather than the deeds plan.

Why this matters: if the tree is the authority's, you cannot prune it, and cutting a branch off a street tree without permission is damage to the authority's property.

Cutting back what overhangs the highway

The power that gets used most often runs the other way, against private owners.

Section 154 of the Highways Act 1980 lets the highway authority serve notice on the owner or occupier of land requiring them to cut back a hedge, tree or shrub that overhangs a road or footpath so as to endanger or obstruct the passage of vehicles or pedestrians, or that obstructs or interferes with the view of drivers or the light from a public lamp. The notice specifies what must be done and by when. If it is not complied with, the authority can carry out the work itself and recover the cost from the person served.

Three points about that power are worth knowing before you receive a notice. It applies to obstruction and danger, not to leaves, shade, birds or a neighbour's view. It bites on the owner or occupier even where the tree was planted before they arrived. And it is not overridden by a Tree Preservation Order, though the authority should still deal with the consent position, and the work should be limited to what the notice requires rather than becoming a reduction of the whole crown.

If a notice lands, get a specification written before the saw comes out. Over-pruning in response to a vague notice damages the tree and can leave you liable for replacing it, and the approach set out in specifying crown reduction so the tree officer agrees applies to highway notices as much as to planning conditions.

Sight lines, signs and street lights

Visibility is the argument that wins most often, because it engages safety rather than convenience.

Growth obscuring a traffic sign, a signal head, a street nameplate or a street light is the clearest case, and section 154 expressly covers interference with the light from a public lamp. Vegetation reducing visibility at a junction or a bend engages the authority's wider duties, and a documented near miss carries more weight than an opinion about how dangerous a corner feels.

Planting near the carriageway is controlled too. Section 141 makes it an offence to plant a tree or shrub in a made up carriageway, or within 15 feet of the centre of one, without consent. That is why hedges and ornamental trees along narrow lanes sometimes have to come back further than owners think reasonable.

Statutory undertakers add a further layer. Water, gas, electricity and telecommunications operators have powers to work in the street, and their excavations sever roots that no arboriculturist has assessed. Trench routes are agreed under the street works regime rather than through planning, which is one reason street trees decline years after a utility job.

Why a Tree Preservation Order rarely bites on a street tree

Tree Preservation Orders are made by the local planning authority under section 198 of the Town and Country Planning Act 1990, and the procedure and exemptions sit in the Town and Country Planning (Tree Preservation) (England) Regulations 2012.

An Order can in principle cover a highway tree. In practice it seldom helps, for two reasons. The Regulations exempt various categories of work, including work carried out by or on behalf of the local planning authority itself and work required by statutory undertakers, so an authority felling its own street tree is not asking itself for consent. The same logic applies to the section 211 notice normally required for work to trees in a conservation area.

Dead trees are exempt in any event, as is work urgently necessary to remove an immediate risk of serious harm, subject to notice requirements. So a neighbour hoping that an Order will stop a council felling a street tree is usually looking at the wrong instrument. The route is the authority's own tree policy and its consultation process, not the planning system.

Where a privately owned tree is worth protecting, asking the planning authority to consider an Order is still worthwhile, and the tree protection barrier specification under BS 5837 shows the level of detail expected once a tree is inside a development proposal.

Consultation before felling, and its limits

Section 116 of the Environment Act 2021 places a duty on local highway authorities in England to consult the public before felling a street tree, with exceptions set out in regulations for trees that are dead, dangerous or diseased, for smaller trees, and where felling is required under other legislation. Check whether the duty is in force and read your own authority's published policy, because the detail sits in secondary legislation and in local practice rather than on the face of the Act.

The duty is procedural. It requires the authority to consult and to have regard to the responses, not to spare the tree. A well evidenced response can still change an outcome, particularly where an alternative engineering solution exists, but the honest position is that most consultations on individual trees confirm the decision already reached.

Timing rules also constrain the work itself rather than the decision. Nesting birds are protected through the breeding season, and bats can use cavities in mature street trees, which is why timing tree works around bats and nesting birds matters even for a council contractor.

Lifted paving, roots and who is liable

Root heave lifting a footway is the most common complaint about street trees, and the law splits it two ways.

The highway authority has a duty to maintain the highway under section 41 of the Highways Act 1980, so a tripping hazard caused by its own tree is its responsibility to make safe, and it has a statutory defence if it can show a reasonable inspection and repair regime. Root damage to a private structure is different. That is a claim in nuisance against the tree's owner, and it requires evidence linking the specific tree to the specific damage, which is where most claims fail. The evidential standard is the same whichever way the claim runs, and it is set out in tree subsidence claims and the evidence a council needs.

Before assuming the tree is the cause, rule out the drain. Leaking drainage causes a good proportion of the ground movement blamed on trees, and roots follow water rather than creating the leak.

Making a case the authority can act on

A report that gets a response looks different from a complaint that does not.

1. Identify the tree precisely, with a photograph, the nearest property number and a description of its position relative to the kerb.
2. Say which problem it causes in the authority's own terms: obstruction of the footway, obscured sign, blocked street light, damaged paving, or visibility at a junction.
3. Give dates and evidence. Photographs across two seasons, a note of when the paving lifted, or a record of a near miss all help.
4. Ask for a named outcome. Crown lift to a stated clearance over the footway, sign clearance, or a paving repair is easier to action than a request to do something.
5. Send it to the highway authority's tree or highways inspection team, and copy the ward councillor. Do not send it to development management, which deals with planning applications and will redirect it.

Where a tree stands to be lost through a development proposal rather than through highway maintenance, the planning system does engage, and the replacement obligations described in replacement planting conditions after tree loss are where an objector has real influence. A Tree Survey prepared to BS 5837:2012 is the document that puts the tree's quality and constraints in front of the case officer.

This is general guidance, not legal advice. Check the position with your highway authority, and take advice from a qualified arboriculturist or solicitor before relying on it where damage or liability is in issue.