Can we do anything about tall trees our neighbour has planted?

Property Clinic: A court order is now required to establish any rights over land

They are planted close together and it seems to me that by next year or so they will have joined together to form a “wall” of greenery. Photograph: iStock

They are planted close together and it seems to me that by next year or so they will have joined together to form a “wall” of greenery. Photograph: iStock

 

Last year our neighbour planted a line of fir-type trees in their garden along the wall that divides our rear gardens – there are six of them. The wall between our two gardens is nearly two metres high, and now the trees are a metre above it and growing at an alarming rate. They are planted close together and it seems to me that by next year or so they will have joined together to form a “wall” of greenery that will continue to grow to a considerable height.

This will have huge implications for the light in our garden (the neighbours’ garden is much wider so it won’t have an impact on them) and also the view. I know that a rear garden wall cannot exceed 2m tall – but can people plant a “wall” of trees that will grow much taller? Our neighbour is not the sort who would be amenable to a reasonable conversation. Is there anything we can do?

When you are selling a property, your solicitor invariably gives you a questionnaire to complete to provide information needed to draft the contract for sale. One of the questions asks if you have any agreements with your neighbours as to the maintenance of your shared boundaries. For house owners the answer is often no, although if you live in a housing estate then the original deed from the builder to the first purchaser most likely contained a covenant by the purchaser not to cause a nuisance to the builder or other owners in the estate or prevent the taking in charge of the roads/services by the local authority.

It is not clear if your house is in a development. Some more detailed research might be needed to show the trees constitute a nuisance. If it could be proved that they were a nuisance and the deed for the neighbouring property contained such a covenant, you may be able to sue for breach of covenant.

Your chartered building surveyor, architect or engineer could advise you on the planning aspect of the matter, and if the planting of the trees could constitute a change of use or an intensification of use for which planning permission was required.

A right over land (as opposed to a right or interest in land) is called an easement. There are many different types – the one most familiar to many Irish people is turbary, the right to cut turf on a bog. The right to light is also an easement but traditionally there was never a general right to light.

To sue someone for blocking light to your windows, you had to prove that you had acquired a right to light by relying on section 3 of the Prescription Act 1832 (you had to show you enjoyed the access to the light for 20 years or more). Prescription is the presumption of a right over land and historically was obtained by showing long use or enjoyment of the right. There were a number of other requirements in the Act also, such as exercising the rights openly, continuously, without interruption and without objection from a third party.

However, and unfortunately for you, since the introduction of section 35 of the Land and Conveyancing Law Reform Act 2009, it is no longer possible to establish any rights over land merely by long use. Now a court order is required. Once a court order is obtained confirming the existence of a right over land, this order must be registered in the Land Registry or Registry of Deeds.

In the absence of being able to agree something directly with your neighbour, you could seek assistance from a mediator. Failing that, you are looking at making a court application for an order confirming your right to light.

Paul Stack is a solicitor at P&G Stack Solicitors

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