Our new neighbours have cut down the trees along our boundary. What can we do?

Property Clinic: A tree must be replaced if its removal is in breach of a planning condition

Where the felling of a tree is in breach of a planning condition, it must be replaced. Photograph: Getty Images

Where the felling of a tree is in breach of a planning condition, it must be replaced. Photograph: Getty Images

 

A recent development overlooking my property came with some conditions. One of the conditions was that semi-mature trees must be planted along the boundary wall to screen our properties from the new properties. The builder complied with this condition and planted really beautiful semi-mature trees (height approximately 15-20 feet). The purchasers of the two properties overlooking my property ripped the trees up, however, to put in sheds. Is this a breach of the condition and must they replace the trees to comply with the original condition?

Patrick Shine writes: The short answer is “yes”, there has been a breach of the planning condition and they are obliged to replace the trees.

Your best approach is to initially discuss the situation with your neighbours who may also be affected by the removal of the trees or by the removal of further trees, if this is a possibility. Research of suitable tree species, including a visit to a garden centre, in order to be in a position to suggest acceptable options, may be useful. Then make a joint approach to the two purchasers you refer to and explain your concerns to them.

It may be possible to reach some compromise if the sheds do not occupy the full width of the respective properties and there is space along the boundary wall to replace some of the trees. The accumulation of leaves between the sheds and the boundary wall may be an issue for the purchasers. Your research will reveal some evergreen species that do not shed leaves and are relatively easy to maintain and control. Avoid all leylandii types.

Claiming that they were unaware of the condition to plant these trees may not be acceptable as their respective solicitors were likely to be informed of the condition at the time of purchase by means of a standard document referred to as Objections and Requisitions on Title, which is provided by the vendor’s solicitor to the purchaser’s solicitor. This document comprises a comprehensive list of replies to questions, including replies to questions on easements, charges, conditions and other burdens or encumbrances affectioning the property, that the purchaser’s solicitor and his/her client should be made aware of.

Enforcement action

If the respective purchasers are unco-operative you have the option to formally notify the planning authority that the condition was breached. Sections 151 to 164 of the Planning and Development Act, 2000, provides for enforcement action to be taken by a planning authority in relation to unauthorised development or non-compliance. Section 154 (5), (a), (ii) makes specific reference to conditions.

The sheds require planning permission if they are not constructed within certain area and height limits. Planning permission is required if a shed is more than 25sq m in area or has a pitched roof higher than 4m, or a flat roof higher than 2.5m. There are also limits to height if it’s in close proximity to a property boundary or reduces the remaining open space to less than prescribed limits. If this is the situation, you should check the planning register to determine how the condition concerning the trees was addressed. If planning permission was required but no application was made, then the purchasers you refer to have more than the condition in relation to the trees to deal with.

If co-operation is not forthcoming and you decide to notify the planning authority, it is advisable to first talk to your solicitor as planning legislation in relation to some aspects of the enforcement process is complex and may require interpretation.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland, www.scsi.ie

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