Overhanging branches and encroaching roots

Your overhanging branches rights come from common law, not from planning. A landowner may cut back branches and roots that cross the boundary, up to the boundary line, without asking permission and without giving notice. The House of Lords settled that in Lemmon v Webb, which also fixed the limit: you cannot enter your neighbour's land to do it without their agreement.

What you cannot do is keep the cuttings, cut beyond the line, or ignore a Tree Preservation Order because you are exercising a common law right. The statutory regime overrides the common law one, and that is where most of the trouble starts.

The right to cut back to the boundary

The encroachment of branches over, or roots under, a boundary is a nuisance in law, and the remedy of self-help, called abatement, is available without going to court. You may remove the part that is on your side.

Four limits apply.

You must not cut beyond the boundary. A cut made 200 mm into the neighbour's airspace is itself a trespass, and on a mature tree the difference between a flush cut at the boundary and a cut inside it can be the difference between a sound pruning wound and a decay pocket.

You must not enter the neighbour's land. If the work cannot be done safely from your side, you need their permission, which they are entitled to refuse.

You should not cut in a way that destabilises the tree or kills it. Severing roots on one side of a mature tree can leave it structurally unsound, and if it then fails onto your own property, the arguments about causation become expensive for everyone.

And you must not do any of it where the tree is protected.

What happens to the cuttings

The branches, the roots and any fruit on them remain the property of the tree owner. That surprises people and it is settled law.

The practical consequence is that you should offer the material back. Keeping it, burning it or taking it to the tip without permission is in principle a wrongful interference with their property, though in reality nobody litigates over a trailer of brash.

Throwing it over the fence is the version that does cause disputes. Tipping arisings onto someone else's land is a trespass, and where a neighbour relationship has already soured it is the act that turns a pruning disagreement into a formal complaint. Offer the material, in writing, and dispose of it yourself if the offer is declined.

Where the tree is protected

A Tree Preservation Order or conservation area designation removes the self-help right in practice. Cutting, topping, lopping or uprooting a protected tree without consent is an offence, and the common law right of abatement is no defence.

The 2012 Tree Preservation Regulations do exempt work necessary to abate a nuisance, but "nuisance" there means a nuisance in the legal sense rather than an inconvenience. Overhanging branches that shade a lawn, drop leaves into a gutter or shed fruit onto a path are unlikely to meet that test on their own. Actual or imminent damage to a structure is a different matter.

The safe route is to apply for consent to the local planning authority, or to serve the six week notice under section 211 of the Town and Country Planning Act 1990 where the tree is in a conservation area and not covered by an order. Both are free. Neither takes as long as a prosecution.

Where a planning condition on a nearby permission also protects the tree, the two regimes can point in different directions, and that situation is dealt with in the note on conflicts between a planning condition and TPO consent.

Roots, drains and structural damage

Root encroachment that causes damage is a different claim from root encroachment that is merely present. Where roots have caused subsidence to a building, the courts have allowed recovery of remedial costs from the tree owner where the owner was given notice of the continuing nuisance and failed to deal with it.

The sequence that matters is notice, then failure to abate, then loss. Carrying out underpinning first and claiming afterwards without having told the tree owner weakens the claim substantially.

For a householder, that means the order of events is this.

1. Get a structural engineer's assessment identifying the mechanism of movement and whether vegetation is implicated.
2. Get an arboricultural assessment identifying the species, the likely root spread and the water demand of the tree.
3. Notify your insurer, who will usually take over the correspondence.
4. Write to the tree owner setting out the evidence and what you are asking them to do.
5. Only then consider works.

Drain damage follows similar logic. Roots enter drains through existing defects far more often than they break sound pipes, so a CCTV survey showing the condition of the pipe before the root ingress is the evidence that decides who pays.

Why this is not a planning matter

Councils receive a steady flow of complaints about neighbours' trees and can do almost nothing about them. Loss of light to a garden, leaf fall, shading of a vegetable patch, blocked gutters, fear of a tree falling and the general nuisance of a large tree are not planning matters, and the local planning authority has no power to require a private owner to prune a tree that is not protected.

An easement of light protects defined apertures in a building, not open ground, so shading of a lawn gives no right of action. There is no right to a view in English law either.

Three exceptions exist. A high hedge complaint under Part 8 of the Anti-social Behaviour Act 2003 lets the council consider a complaint about a line of two or more mostly evergreen trees or shrubs over 2 m high that unreasonably affects enjoyment of a domestic property, with a fee payable and a remedial notice as the outcome. A highway authority can require trees overhanging a road or footway to be cut back. And a council can act where a tree is dangerous.

That first exception is narrower than it reads. A single large tree, however tall, is not a high hedge, and deciduous species are generally outside it.

Evidence before you act

Establish the boundary before touching anything. Land Registry title plans show general boundaries only, so a plan showing the line running along a hedge does not fix whether the trunk is on your side. Where the trunk straddles the line, the tree is jointly owned and neither party can remove it unilaterally.

Then photograph the encroachment with a scale in shot and a date, from the same positions you will photograph afterwards. If a dispute follows, the before-and-after pair does more work than any amount of description.

Where the tree matters enough to be worth professional input, a survey to BS 5837:2012 gives you the species, condition, dimensions and root protection area in a form everyone recognises, and a tree survey of that kind is the document an authority, an insurer and a court all read the same way. Where level changes or structures near the tree are part of the picture, the constraints set out in the note on retaining walls and level changes in a root protection area apply.

Reaching an agreement instead

Most of these disputes end with the same practical answer, reached the expensive way rather than the simple way: a cyclical pruning regime, agreed in writing, with the cost shared and the work done by one contractor on one visit.

Propose it early. Set out the frequency, the specification in arboricultural terms, who instructs the contractor, how the cost is split and who takes the arisings. Put it in a letter rather than leaving it as a conversation over the fence.

And accept that a 25 m oak on a small plot is a permanent condition of the property rather than a problem to be solved. The pruning that would make it comfortable would damage the tree, and if it is protected the authority will not allow it.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. If you are planning work near a tree that forms part of a development proposal, enter your postcode on PlanScope to see which reports the site is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.