A Guide to Garden Law

An Englishman's home may well indeed be his castle but when it comes to his garden, the portion of land within the boundary fence marks the arena for what many describe as a battle royal between neighbours. A number of things can disrupt an otherwise harmonious relationship from the trivial such as an occasional bonfire, to more serious concerns as the growing threat of a monster hedge allowed to grow out of control.

According to The Office of National Statistics, almost six million complaints are made about nuisance neighbours to Environmental Health Departments each year and a high proportion of those complaints relate to issues involving the garden. The Noise Abatement Society alone reported a 28% increase in garden noise complaints last summer - while a survey carried out by Abbey found that a staggering 4.5 million people moved house just to avoid unruly neighbours from hell.

Impact of neighbour disputes on sellers

When you put your home up for sale, having had a previous or ongoing neighbour dispute can blight your chances of selling, something one really shouldn't encourage in the current difficult market.

Gordon Edwards, Managing Director of Halifax Estate Agents says: "It's important to remember that any formal disputes will have to be declared on a 'Sellers Property Information Form' when you come to sell your home. Ensuring good neighbourly relations is always a prudent measure - that way unpleasant situations can be prevented."

Neighbour's garden is a mess

There is no legal compunction on your neighbour to keep a tidy garden. Of course it does help make for a better vista and assist in improving the general amenity of a neighbourhood if your next-door neighbour has the same passion for gardening as Alan Titchmarsh - but there is no legislative requirement for them to keep a manicured lawn and neatly forked borders, or topiarise their hedging. It can quite legitimately look like a Beirut street scene if your neighbour wishes. The only time that action can really be taken is if there is a health risk, for instance if rats have domiciled your neighbour's garden due to next door's unhygienic mess, in which case a call to your local Environmental Health Office (EHO) is advised.

High hedges

Cupressocyparis Leylandii, otherwise known as the ubiquitous green conifer. This gracious columnular tree may well cause exultation to lovers of Canadian pine forests but it has proven beyond doubt over the past thirty years to be the bane of many neighbours' lives whose gardens have been thrown into darkness by the triffid-like nature of its growth. According to Hedgeline, the national action group set up to help victims affected by high hedge nuisance (mostly involving conifers), over 1500 complaints were made to councils last year resulting in the issuing of 700 Anti-Social Behaviour Orders.

If your neighbour has a row of conifers planted along the border which block an unreasonable degree of light to your garden (and the law on lost light is extremely complex), the first thing to do is have a civil word with them and ask them to trim the trees. If this doesn't work, local authorities are now authorised under anti-social behaviour powers to assess the situation and determine the level of nuisance, taking action if necessary. For further information on high hedge nuisance, visit Hedgeline.

Decking - planning issues

Since the introduction of garden makeover programmes in the mid 1990s, gardens across the UK have been subject to the creative DIY skills of budding Tommy Walshes, bedecked in myriad shades and patterns of timber decking. The product has proved to be an effective 'coverage' solution for many gardens and is far more economical and easy to erect than traditional stone is to lay. However, with gardens which slope down away from the house, raised decks which maintain a level surface from the home but which necessarily raise the view over neighbouring gardens pose an issue which is becoming the source of an increasing number of disputes. Lost privacy.

Planning permission is rarely required for decks. However, there are certain circumstances where it is always advisable to seek advice from your local authority to prevent problems down the line.

• If the deck is situated within 20 metres of a highway.
• Where the deck platform is more than 0.3m (1 ft) from the ground.
• If the structure affects the amenity, value or privacy of your neighbour.
• If you live in a flat or maisonette.
• If the deck is attached to a listed building or situated in a conservation area.
• If together with other extensions, outbuildings etc, the decking or platforms covers more than 50 per cent of the total garden area.

Log cabins - summer houses

The need for an exterior bolthole - be it a home office, or an extra room for relaxation or leisure use such as a home gym - has seen the emergence of the log cabin as a 'must-have' accessory in many modern gardens.

According to the Government's Planning Portal website and following changes to planning laws made last October, outbuildings are considered to be permitted development and not requiring planning permission, subject to the following limits and conditions:

• No outbuilding should be allowed forward of the principal elevation fronting a highway.
• Outbuildings and garages should be single-storey with a maximum eaves height of 2.5 metres and maximum overall height of four metres with a dual pitched roof, or three metres for any other roof.
• If the cabin or building is within two metres of the boundary, the maximum height should be 2.5 metres
• No more than half the area of land around the "original house" should be covered by additions or other buildings.

The above applies only for ordinary domestic situations and not for listed buildings or conservation areas, so homeowners should seek further advice from their local authority if they have any doubt.

Boundary disputes

In the UK, neighbours can reach war footing over a matter of a few inches when it comes to boundary lines and so it is the demarcation between neighbouring properties which is often a rich source of neighbourly disputes. The obvious scenario for disputes centres on the erection of a new fence. You return home from work and admire your neighbour's handiwork but after taking a closer look, realise that several inches of your boundary have been encroached upon and the boundary line has magically shifted. What should you do?

In law, your neighbour is responsible for the boundary on which the T-lines on the Title Deeds fall within their garden. If they choose to replace the fence which they are responsible for, they must follow the existing boundary line and cannot steal your land, not even an inch of it. The only time your neighbour may have any rights over your land would be if they had annexed and used that portion of land without dispute for a period of 12 years. It would then transfer to their ownership under what is called 'adverse possession,' or squatter's rights, but the law is extremely complex here.

If your neighbour repositions the boundary and does not follow the previous line, instruct them to reinstate it correctly. If they refuse, you have the right to reasonably remove the fence. With particularly stubborn neighbours, a lawyer's letter usually does the trick - but do try to resolve such issues amicably as legal costs for boundary disputes are punitively high. In fact, a couple from Greater Manchester who took unilateral action over a neighbour's encroaching fence have recently lost their house in legal fees alone! See Boundary-Problems.co.uk.

Overhanging trees & roots

An established garden is a thing of beauty if kept in check, but there are some occasions when, even with the best will in the world, trees and bushes seriously overhang a boundary and impose their verdant growth on your own garden, or their roots do damage to your paths and patios.

In such circumstances, the law permits you to cut any overhanging branch (or underground root growing into your garden). However, these must be either returned to your neighbour or the offer made to return them. The only occasion when this rule does not apply is when the offending tree is subject to a Tree Preservation Order (TPO) in which case you should seek advice from the local authority without touching the tree. Before cutting into any tree and risking the wrath of your local authority (and a large fine), it is always prudent to check first to see if it is subject to a TPO.

Straying Pets

Dogs and cats are one of life's wonders, for some. However, if your neighbour's darling is coming onto your well-tended vegetable plot and depositing a health hazard in among your onions, then this does indeed constitute a nuisance for which your neighbour can be held culpable. Nothing at all can be done if the perpetrator is feral but if it is your neighbour's pet, talk to them politely and ask them to keep their animal/s under control. Ideally, ensure that your own garden is adequately dog-proof.

Shared parts

There are some situations in which neighbouring properties share services, driveways or other physical property parts such as gutters. Where this is the case, disputes can often arise.

Flats

If you live in a flat with others, the lease documentation should contain details of any maintenance or repair charges and what proportion, if any, you as leaseholder are responsible for. Major repairs affecting the structure should be carried out by the freeholder. If a freeholder refuses to carry out any repairs they are responsible for, they are breaking the conditions of the lease. Get professional legal advice if you are in this situation. If the repair work is urgent, the leaseholders may need to join forces and get the work done as an emergency measure before seeking recovery of the costs from the Landlord who can be ordered by the courts to pay compensation.

Driveways

Many semi-detached homes have adjoining driveways. For some it means, quite erroneously, the right to encroach on the other half of the drive and/or block it altogether as if it were their own. Neither neighbour has a right to park their car on a shared driveway, nor do they have a right to store anything such as dustbins etc on the shared part as this constitutes an obstruction to the neighbour's legal right of way. As in previous situations, amiable discussion is always preferable to litigation, but if the infringement continues, the victim should seek legal advice.

Drains & gutters

If you share the guttering and water egress drainage between two properties (you can tell this by looking at your deeds), both parties usually have a joint responsibility (and liability) for maintenance and repair costs. When it comes to handing over money though, some neighbours don't like paying their share.

If repair is necessary, talk to your neighbour, if necessary armed with the Title Deeds, to show that the subject or repair/maintenance is a shared asset that you both have an obligation towards. Most neighbours faced with compelling evidence such as a set of Title Deeds will usually respond positively to a polite approach without the need for escalation.

How to resolve neighbour disputes

Step 1: Talk
The greatest chance of resolving issues is always to talk first. In most neighbour disputes there isn't actually any law being broken. It is usually a case of clash of two different lifestyles and personalities.

Step 2: Write
If a civil word doesn't work, a polite but assertive letter can do the trick. Keep any letter brief, to the point and state only the facts. Do not use emotive language or make threats. Outline what steps you would like your neighbour to consider and suggest mediation if you both cannot agree. Keep a copy of the letter.

Step 3: The Professionals
If you get to the stage where nothing is working, you can and should contact your local EHO (Environmental Health Office) if appropriate and, if mediation has failed, a solicitor.

Step 4: Legal action
Taking legal action should always be a last resort. Some solicitors specialise in neighbour disputes and offer advice on their range of services.