Overgrown Gardens

Local authorities powers

In terms of overgrown gardens, local authorities have limited powers to intervene to compel a property owner to remove overhanging branches/trees etc. from land which he or she owns.

Relevant legislation would be section 91 of the Roads (Scotland) Act 1984 which gives a local authority power to serve a notice requiring the removal of branches or roots or whole trees which are regarded as dangerous to public roads or public footpaths.

If the owner fails to do this the local authority can also do the job themselves and charge the owner of the vegetation. Likewise, if it thinks there is an imminent danger the local authority can carry out the work itself and can recover its costs accordingly.

Significantly, section 91 does not apply to dangers to other (eg adjacent) private property so it will not be of assistance if the problem gardens are entirely affecting other private property.

Local authorities have powers to enforce improvements and repairs on a privately owned property, under the Housing (Scotland) Act 2006. This would depend on the individual circumstances of each case but may be of relevance.  Further information is available here – https://www.citizensadvice.org.uk/scotland/housing/repairs-and-improvements-s/house-repair-notices-s/#defective_building_notices

Local authorities also have powers under the Environmental Protection Act 1990 s.79 to inspect their area from time to time to detect statutory nuisances and to investigate complaints of statutory nuisances made by people living in the area, where this is reasonably practicable. Section 79 (1) (e) refers to:

“any accumulation or deposit which is prejudicial to health or a nuisance”  – https://www.legislation.gov.uk/ukpga/1990/43/section/79#extent-S

This may be of relevance if the accumulation of rubbish in the gardens in question are regarded as being prejudicial to health or a nuisance, eg by attracting vermin.

Local authorities can issue an abatement notice – https://www.citizensadvice.org.uk/scotland/housing/repairs-and-improvements-s/house-repair-notices-s/#abatement_notices – on the person responsible for creating a statutory nuisance.  Failure to comply with an abatement notice is a criminal offence. Citizens Advice Scotland provides a list of statutory nuisances which may lead to an abatement notice, at the link above.

High Hedges (Scotland) Act 2013

In relation specifically to hedges local authorities have statutory powers under the High Hedges (Scotland) Act 2013. In some circumstances, a row of trees restricting light into an individual’s garden can qualify as a ‘high hedge’ under the 2013 Act. However this only applies to a row of 2 or more trees or shrubs which rises to a height of more than 2 metres above ground level and forms a barrier to light.

Resolving civil disputes about trees

Other than the statutory powers referred to above, neighbourhood disputes about overgrown trees/hedges are a private civil law matter between the people concerned. In all but the most serious neighbour disputes, the criminal law is not relevant and so there is no role for the police in this regard.

Relevant areas of civil law

A general overview of potentially relevant areas of civil law is provided below. The issue of ‘encroachment’ may be a particularly significant area of law in the context of problem gardens and may apply where roots or branches encroach on another’s property. Negligence and the common law of nuisance are other potentially applicable areas of law in the context of overgrown or untidy gardens or gardens where rubbish has been allowed to accumulate.

Encroachment

Encroachment is the permanent or quasi-permanent intrusion into land which is owned or lawfully possessed by another person.
In a court case called Halkerston v Wedderburn the judge ordered the person defending the court action to prune branches from trees in his garden which protruded over the wall into the garden of his neighbour. This case established the potential applicability of the law of encroachment to neighbour disputes relating to trees and has been followed in later cases. It is possible to challenge an encroachment through the civil courts.

Self-help

In addition, ‘self-help’ is possible in respect of an encroachment. In other words, a person can go ahead and trim a neighbour’s overhanging branches or remove the roots intruding into his or her property back to the boundary. This can then be followed by a court action to recover the costs incurred from the neighbour in question.

However, there are significant risks with self-help, including that it may make relations with a neighbour worse. Also, if the matter ends up in court the court may not agree with the assessment that there had been an encroachment, meaning a potential legal liability for damage to the tree(s).

Importantly, if the trees do not intrude (roots or branches) into the constituent’s land there is no encroachment.

Title conditions

Title conditions are sometimes imposed in the title deeds of properties. They impose a legal obligation on the owner of one property for the benefit of another property. Properly created, they survive changes of ownership of the properties in question.

Title conditions can oblige the owner of the affected property not to do things, including to plant things which would cut off his or her neighbour’s light or view. Title conditions can also impose positive obligations on a property owner to do something. For example, a property owner can be obliged to maintain his or her property in good condition for the benefit of neighbouring property owners.

Where it is thought that there may be relevant title conditions, it is recommended that the title deeds of the properties in question are examined by a solicitor who can advise accordingly.

Breaches of title conditions can be enforced in the civil courts if necessary. They can only be enforced by people with enforcement rights. There are specific legal rules determining who has enforcement rights, although in practice they are typically held by neighbouring property owners. Again, a solicitor can advise on this matter.

Common law nuisance

The common law of nuisance has been developed by the courts. It confers upon the owners or occupiers of land the right to comfortable enjoyment of their property free of material damage or substantial interference. For a court action to be successful under the law of nuisance the invasion of a person’s use and enjoyment of their land must be so unreasonable that the complainer should not be required to tolerate it.

Negligence

A property owner may be held responsible in law for damage caused by overgrowth/ falling branches or trees (these may damage walls for example), if the failure in question could have reasonably have been foreseen. If the tree had obvious signs of disease or structural weakness, for example, the owner might be sued through the civil courts for any damage caused.
The owner of a tree, for example, has a legal obligation to take due care that it does not damage a neighbour’s property or cause personal injuries.

Antisocial behaviour

If the private property is rented out and tenants are causing the accumulation of waste in the garden, then councils can ensure that the landlord takes steps to prevent them behaving antisocially. Shelter’s website has some useful information on this issue, here – https://scotland.shelter.org.uk/get_advice/advice_topics/neighbourhood_issues/antisocial_behaviour/private_landlords_and_antisocial_behaviour

“If your neighbours are behaving in an antisocial way and they are living in a property rented out by a registered private landlord, the landlord can’t just ignore the problem.

If you know who the landlord is, check that they are registered with the local council (bear in mind that there may be a backlog of applications so they may not yet appear on the register). If they are registered, contact them and tell them what’s been going on. If necessary, remind the landlord that they have to do something about the problem. If they don’t, you can report this to the council’s antisocial behaviour team.

If you can’t track down the landlord or don’t feel comfortable contacting them, get in touch with your local council’s antisocial behaviour team and ask them to speak to the landlord.

Private landlords are responsible for preventing their tenants behaving in an antisocial way in and around their homes. This means that if their tenants are acting in a way that causes or is likely to cause alarm, distress, nuisance or annoyance to anyone living near their home, the landlord must take action.”

Action may involve asking the council to apply for an Antisocial Behaviour Order (ASBO) for the tenants

Legal advice/action

As you will be aware, SPICe cannot give legal advice on the circumstances of an individual case but if a person is considering asking a solicitor for civil law advice the search facility on the website of the Law Society of Scotland’s website may be helpful –

http://www.lawscot.org.uk/find-a-solicitor/

Court actions through the civil courts must be raised by the person who wants the legal remedy, as opposed to by any public body.
Typical legal remedies that can be granted where a court civil action is successful include ‘interdict’ (a court order preventing a named individual from doing something); ‘implement’ (a court order compelling a named individual to do something); and ‘damages’ (financial compensation for any loss suffered).

However, unless the legal costs (in whole or in part) are met out of the civil legal aid budget, such court actions can be expensive. They are also stressful and can make relationships with neighbouring property owners a lot worse. In addition, as with any court action, there is no guarantee of success.

Alternatives

Negotiation with the property owner 

Because of the drawbacks of court action it is often best to try and resolve the dispute out of court with the property owner in question, through negotiation.

Mediation

Sometimes there is a role of mediation to support this process, although all the people in the dispute have to be willing to participate voluntarily. To find a mediator specialising in neighbourhood disputes in a particular geographical area the website of the Scottish Mediation Network has a useful search facility – http://www.scottishmediation.org.uk/find-a-mediator/

Negotiation using a solicitor

Sometimes a solicitor is involved in the process of negotiation but the people in question manage to resolve the dispute without going to court. For example, one person’s solicitor may send a letter to the neighbour asserting the person’s legal rights and that is enough to bring about a change in the neighbour’s behaviour, and a satisfactory outcome is reached. However, again there are potential legal costs associated with this process.