Whilst overhanging branches of a tree are not deemed trespass but instead nuisance, the case of Earl of Lonsdale v Nelson [1823], which dealt with trespass and not nuisance is perhaps a peculiar beginning. However, during the case’s hearing, the judge remarked that nuisances could be abated by the individual suffering from the nuisance without notice to the person causing the nuisance, though notably not when overhang was onto a public roadway or the overhang was from a tree whose owner would routinely tend to their trees themselves. The judge also remarked that permitting branches to overhang into a neighbouring property was a “most unequivocal act of negligence”, though caution must be exercised here as labelling overhang as negligent is lurking at the threshold of what could be considered appropriate for the situation. Instead, such overhang is referred to as nuisance, as outlined in the judge’s preceding comments. Building upon this ruling, the case of Rylands v Fletcher [1868], even though not to do with trees, set the precedent for foreseeability, and therefore because boundary trees will foreseeably encroach, via their branching crown (and roots), onto neighbouring land, the tree owner must, in readily recognising this, ensure the nuisance associated with their encroachment is abated. If not, if anything “mischievous” were to arise (including solely from the overhang detracting from the neighbour’s enjoyment of his or her land), the tree owner would be held liable.
The case of Earl of Lonsdale v Nelson [1823] was, at the Court of Appeal, considered in some detail during the case of Lemmon v Webb [1894], where the claimant, who owned a few large trees, consisting of oaks and elms, growing amongst a hedgerow on his property, filed a claim against Webb for damages when Webb cut off some of the branches to his boundary line without prior warning. In this instance, there was absolutely no question that Webb did indeed have the power to cut back the overhang, though discussions did take place of whether Lemmon had to be informed of such an action. Initially, Lemmon won the case with regards to this matter, though at appeal that was overturned. However, the judge at appeal did recognise that, particularly if trespass must occur for overhang to be removed, then the owner of the trees be informed prior to the works being carried out – though the judge did not mandate such a course of action, and thus there is no actual need to inform the owner of the trees if a neighbour seeks to remove overhang. All that is required is they prune the tree with “reasonable care”, and the removed wood (and leaves, flowers, etc – depends upon the time of year) is offered back to the tree’s owner as it was removed from the tree (who has the right to refuse them back, if they so desire). Such a precedent was established in the Mills v Brooker [1919] case.
Later, in Smith v Giddy [1904], a slightly different angle of approach could be seen. The claimant was contesting how Giddy’s trees were overhanging onto his property and impacting adversely upon the growth of his fruit trees. The judge ruled, in the case prior to it going to appeal (of which the outcome is not known), that if the trees are not doing any damage, then it may be up to the claimant (plaintiff) to abate the nuisance by cutting back to the boundary line. Only when overhang is actually causing damage is there a need for action on behalf of the grower of the trees, as in such a case one cannot expect the neighbour to fund such remedial works to ensure his or her property is once again free to a damaging agent.
More recently, courts seem only to rule that a tree is a nuisance if harm is being caused (stemming back from the case of Lemmon v Webb). Elliott v Islington LBC [1991] did come close to ruling a tree can be a nuisance merely for overhanging a property, though ultimately did not accept such a precedent. Instead, where overhang is not causing harm, it can be removed by the neighbour. Such a stance was also adopted by the judge in Perrin & Anor v Northampton Borough Council & Ors [2006], where it was ruled that “the owner of the land who has suffered the encroachment has a right to remove the overhanging boughs“, and also ruled in Delaware Mansions Limited & Others v Lord Mayor & Citizens of The City of Westminster [2001], where the judge remarked that overhang can be abated by the neighbouring land owner.
In terms of who can remove overhang, Read v J Lyons & Co [1947] stated that, and as subsequently re-affirmed by Hunter v Canary Wharf Ltd [1997], action of nuisance abatement can be undertaken by any person or persons who are the owner(s) of occupier(s) of the land affected by overhang. Overhang cannot however be removed by guests, lodgers, employees, or family members who do not have exclusive possession of the land affected. In the latter case of Hunter v Canary Wharf Ltd [1997], it was also ruled that nuisance can be divided into three categories: (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land, and (3) nuisance by interference with a neighbour’s quiet enjoyment of land. The encroachment of branches is typically, though not always, cited under the first reason.
Arboriculture 