Boundary issues with local council

[tigger1957]

I moved into our property in 2006. The boundary at the bottom of our garden borders onto a public footpath. Also exactly on our border at the bottom of the garden is a very large oak tree that has a preservation order on it.

When we moved into the property our solicitors made it clear that the oak tree was on our property and it was our responsibility. They gave us a copy of the preservation order on completion of our purchase. The land registry deeds show that the tree is exactly on or straddles our boundary. When we moved in the boundary was formed by a hedgerow with the oak tree right in the middle of the hedgerow.

About 4 years ago, we wanted to erect a fence to give us more privacy from the public footpath and because we have a couple of dogs. We started to erect a fence leaving the hedgerow and oak tree clearly within our boundary.

At the time someone (presumably a neighbour) must have contacted the local council because we were working around the tree. A representative of the council (we think it was a tree arborist) came to our property to ask what we were doing.

We explained we wanted a fence erected for more privacy, but we were putting the fence behind the oak tree as the actual boundary probably ran straight through the oak tree and it was difficult to pin a fence to the trunk or dig holes for posts because of the roots.

The arborist from the council verbally said this should be ok so long as the public footpath was not compromised or obstructed by the fence. So we erected the fence with the oak tree and hedgerow within the fence and on our property.

In the process of erecting the fence we actually made the footpath clearer and tidier as most properties that bordered the public footpath allowed hedgerows to overgrow.

We though nothing more of this until I have just received a letter from the local council. Remembering that the fence was erected 4 years ago, the letter states that 'Your property appears to have been extended beyond the original land boundary (hedgerow) and is now an illegal obstruction to the public footpath. Whilst recognising that this matter may have been the result of a misunderstanding the Council has a legal duty, and associated powers, to ensure the extent (width) of public rights of way are protected from encroachment. For this reason I am afraid we will require the removal of the fence back to the boundary of the footpath, i.e. in line with neighbouring fences.'

I called the Countryside Access Officer who the letter came from. I asked why 4 years after the fence was erected has this come to their attention. It has come to their attention from a complaint by a neighbour but he reuses to tell me who this is.

My first question is surely I have a right to know who has complained and on what grounds that have made the complaint.

I also mentioned that when the fence was erected, someone from the council had given us verbal approval that we could go ahead. I can't remember a name and I'm guessing there will be no record of this.

If the reason we have received this notification is that the fence creates an illegal obstruction, it clearly doesn't because in places the footpath is narrower from hedgerow and other property fence leaning into the footpath.

The footpath is five and a half feet wide and easily wide enough for a pram or pushchair of even a wheelchair, so I don't understand what illegal obstruction it causes. The real problem is the huge oak tree with a preservation order.

I have always been led to believe this is within the boundary of my property. If it is then I have erected a fence as close to it as I possibly can.

I'm thinking of going back to my solicitor who did the conveyancing when we bought the property but if anyone can advise me where I stand I would be grateful.

[Kati]

Re: Boundary issues with local council

IMO, if the land registry deeds show the tree is either inside (or straddling) your boundary, then I cannot see that the council have a case.

Have you got copies of the deeds? You could use them to prove where the tree lies in relation to your property and fight against any removal of your fence

K x

[wales01man]

Re: Boundary issues with local council

Take a copy of the deeds to a solicitor who for a fee will tell you if you or the council are right.
As for being told who complained that's not going to happen after all if everyone who has a complaint made against them knew who complained think of what might happen in some cases?

[tigger1957]

Re: Boundary issues with local council

Kati
Thanks. I have copies of the deeds that show the tree straddling or forming part of my boundary with the hedgerow. With the preservation order on the tree not allowing me to fix or pin a fence to it, I have erected the fence as close as I was able to make it secure. In doing this there is absolutely no way that this could be construed as an illegal obstruction. No obstruction whatsoever is caused to users of the public footpath. Thanks again.

[tigger1957]

Re: Boundary issues with local council

wales01man
Thanks. I'm not particularly bothered who has complained but surely I have a right to know the reason for the complaint. For example, does the fence create an obstruction for them?

[wales01man]

Re: Boundary issues with local council

You will not be told that either forget who told tales and fight the council the deeds will show all

[des8]

Re: Boundary issues with local council

If your boundary is straddled by the oak, but you have fenced it so the oak is within your garden (I think that's what you mean) you must have encroached onto council property.
The council are therefore correct in so far as public land is no longer accessible.
If you want to erect a fence you can only do it on your own property upto the boundary line. You should have erected the fence on your side of the oak.

I sympathise with you as you only wanted privacy and to avoid damage to the tree and thought you were actually clearing the footpath, and you got wrong advice from a council employee!
Although you may have cleared the metalled pathway, it is possible that the actual route also runs alongside the boundary, the metalled path being laid to one side for some reason.
IF that is the case you are technically obstructing the path.
Section 130 of The Highways Act imposes a duty on the council as highways authority"...to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority...". But they do have discretion in how they discharge that duty.
If you have encroached on the path it might be possible with the right approach to negotiate a temporary retention of your fence, with an undertaking to remove it when it requires repair.
However what would you say if the tree was between you and a neighbour and the neighbour planted his fence on your side of the tree.

[MissFM]

Re: Boundary issues with local council

Another possible solution would be to erect a tree guard around the tree and run the fence from the guard either side on the actual boundary of your land ie notionally bisecting the tree whilst protecting it. It might be an idea to speak to the tree protection officer to see if they would contribute to the cost.

[tigger1957]

Re: Boundary issues with local council

Thanks all for your comments. I think I'll take the deeds to a solicitor and get their view. I do think the countryside access officer is being a job's worth.
One question, if I put the fence my side of the tree, so the tree was outside of my boundary (like giving up my land), am I still responsible for any pruning, lopping or work that becomes necessary and would I still be liable if a branch came down and damaged property the other side of the footpath?

[des8]

Re: Boundary issues with local council

Thanks all for your comments.
I think I'll take the deeds to a solicitor and get their view. good idea
I do think the countryside access officer is being a job's worth.probably
One question, if I put the fence my side of the tree, so the tree was outside of my boundary (like giving up my land), am I still responsible for any pruning, lopping or work that becomes necessary and would I still be liable if a branch came down and damaged property the other side of the footpath?Only if it was your side of the tree? check with solicitor

answers in red

[MissFM]

Re: Boundary issues with local council

Thanks all for your comments. I think I'll take the deeds to a solicitor and get their view. I do think the countryside access officer is being a job's worth.
One question, if I put the fence my side of the tree, so the tree was outside of my boundary (like giving up my land), am I still responsible for any pruning, lopping or work that becomes necessary and would I still be liable if a branch came down and damaged property the other side of the footpath?

I think if the tree belongs to you then you are responsible for making it safe. Also, as it has a TPO you are likely to be obliged to use a qualified tree surgeon for any major work on it

http://www.countrylife.co.uk/propert...-the-law-16946

the first step is to determine who owns the tree – and therefore, who is liable. Even if trees appear to be precisely on the boundary line, it will belong to the party on whose land it was originally planted. This is a matter of fact (and probably some detective work) in each case. If ownership is unclear, but one party has taken responsibility for topping, lopping and similar in the past, then that is taken to be evidence of ownership.

If the tree is yours, you are under a duty to your neighbour to ensure that it does not become a problem to them. This means that you should carry out whatever work is necessary and in a timely fashion, to ensure that it stays in good health and does not become a nuisance. As an aside, if you own trees running along a boundary with someone else’s animals on the other side, you will be responsible if those animals are injured by eating any overhanging part of the tree that is poisonous to them. Perhaps something of which tenders of churchyards with Yews in should be aware …

Another common problem area is trees adjacent to highways. The problem here is less one of encroaching roots or branches, as local authorities and the secretary of state have statutory powers to deal with those, but rather one of trees falling on people and injuring them and their cars. Owners of trees near highways owe a duty of care to the public using that highway (or right of way) to ensure that the tree does not present a danger. The more open to public access is to the tree and the busier the highway in question, the more care you have to take. Unsurprisingly, perhaps, this is a (very) well-litigated area.

A private tree owner can discharge that duty of care (and therefore protect himself against claims) by taking all reasonable management measures to avoid foreseeable injury or harm being caused by that tree. This can also be translated as; landowners must act in a sensible and practical way, according to the size of their properties, the nature and location of the tree/s (and the depth of their pockets). What is practical for a landed estate of 800 hectares crossed by many public highways and with thousands of trees on it, will not necessarily be suitable for the a home-owner with several garden trees that happen to border a footpath, say. If however, you take all reasonable steps to manage your trees, top and lop when necessary and undertake any reasonable investigations if you suspect them of being diseased or otherwise unsound, then you should have a good defence to any claims.

HTH x