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Know Your Rights!

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Andy Sturgeon gets to grips with the peculiarities of the law in relation to your house and garden and reveals some rather surprising liabilities.

"The law is an ass" so the saying goes, although I've always thought that's a typo. When it comes to us and our gardens, there are some quite ludicrous laws and one thing that never ceases to amaze me is that we're actually meant to look after burglars who come into the garden.

The traditional first line of defence in the past has been to cement shards of broken bottles on to the top of your wall. But what if a hapless thief accidentally slashes his arm and severs a tendon while he's grappling with your Venus de Milo? Well it seems that, if you have an "unlawful visitor" on your property and he or she gets injured, you are liable "if you were aware of the danger". The chances are that you were because cementing broken bottles on to your wall isn't the sort of thing you forget doing.

You would also be liable if "the danger is such that you should have offered some protection against it". So you'll be okay if you leave out a ladder and a nice thick pair of gloves for the burglar. And finally, you're liable if "you should have known that an unlawful visitor would come in the vicinity of the danger". In other words, you obviously knew you'd be burgled or you wouldn't have put glass on top of your wall. Therefore you're liable.

So basically as long as you leave your gate undone and put up a sign saying "Please take what you fancy, but mind yourself on the holly on the way out", you'll be fine. Heads they win, tails you lose.

When it comes to the Town and Country Planning Act there are at least parts of this law that make excellent sense. A Tree Preservation Order or TPO is a legal order placed on a tree or group of trees by a local planning department to prevent them from being felled or unnecessary work being carried out. Anyone can request an order and a provisional TPO can be slapped on the tree in seconds if you see someone firing up a chain saw next to the local cedar.

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Once an order is on a tree the owner can't even prune a branch off without permission unless there are mitigating circumstances, for example, that it's dead, dying or dangerous. And even then you have to give five days notice to the council unless it's an emergency.

The fines for contravention of an order are massive, up to 20,000 or even higher if someone, namely a property developer, is deemed to be making a profit from it, in which case getting banged up isn't out of the question.

If a neighbouring tree overhangs your property and causes damage, or just restricts the growth of your plants, you can chop branches off in line with the boundary. You can also tackle the roots, but don't get too carried away because if you destabilize the tree or kill it, you become liable. However, you must give the branches back because otherwise this is theft. This last bit is clearly daft but I can imagine the satisfaction felt when you hurl the branches back over the fence. It also applies to fruit, so in theory you have to give back all the apples and plums and stuff that fall into your garden. The law doesn't seem to mention leaves though.

The Right to Light is a funny thing. This is the one that people bang on about with the ongoing leylandii debate. The thing is, there is no automatic right to light and in order to get a neighbour to chop down a tree or hedge you have to prove a real loss. This doesn't mean if you haven't been able to get as good a tan as last year because the hedge has grown another foot, it has to be something like not being able to make your livelihood market gardening anymore. There is no 'Right to a View' either.

There is legislation afoot to combat the dreaded leylandii plague but the drafting of it is a bit tricky. Defining a hedge is hard and there are plenty of significant large hedges around the country, like the 100ft beech hedge in Perthshire, that need protecting and then of course it's got to be enforced by local authorities at great expense. In short, if you're suffering from leylandiitis don't get your hopes up.

The premium rate Tree Helpline 0906 5161147 is an excellent service for anybody who has a tree-related problem.

See also the Helping Hands workshops:
How to prune and trim a hedge
How to make your garden secure

Articles reprinted with premission from Greenfingers.com



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