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This has been inspired by a previous question I have asked, but has not been answered. Please note that I have not actually planted any trees, this is just a scenario. :)

Bob owns a house with a garden in front of the house. In front of Bob's garden is a patch of public land (common land), which is covered in grass. Bob plants a tree on the common ground (knowningly). Bob's local borough council notice that he has planted a tree on the common ground, which is not being used by the council, member's of the public, or a business.

Can the council cut down/remove the tree?

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  • All common land has an owner (or owners) so is Bob sure it's not owned by the council?
    – user35069
    Aug 24, 2021 at 14:48
  • @RockApe The council have gardeners that cut the grass every so often, but otherwise there is no sign/other indication that they own the land. Aug 24, 2021 at 15:53
  • Generally speaking, the piece of land between the street and your fence does not belong to you, your property begins at the fence. This land is the property of the council/municipality. My parent's house had a tree there and we had to petition the municipality to remove it as we had no right to do so ourselves
    – Neil Meyer
    Aug 25, 2021 at 9:20
  • Unfortunately you have accepted an answer that appears to have been written by an American who is guessing the situation in England and Wales and is full of errors, so I won't bother trying to write an answer. The short answer is: if you plant a tree on land it belongs to the owner of the land. Whether the council can cut down the tree depends on lots of other things (eg are they an owner, do they have some other right) but you no longer have a right to it unless you happen to own the land itself or have a certain right of common. Sep 1, 2021 at 22:18
  • @FrancisDavey If you can give a more informed answer feel free to do so! Sep 1, 2021 at 22:40

1 Answer 1

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Can the council cut down a tree I plant on common land?

Yes.

When you plant a tree on common land, you are making a donation to the commons and the tree is no longer yours. The fact that it is common land resolves the question. This is really obvious in the fact pattern where you plant a tree in middle of Hyde Park, and is less obvious, but still true, in the fact pattern in the question.

But, be aware that lots of land that is commonly believed to be common land (particularly in the fact pattern in the question), is in fact, private land subject to an easement in favor of the public. There is a fair amount of micro-variation in the common ownership v. private land with easement norm between different neighborhoods in the same municipality, that flows largely from customary practice at the time that particular neighborhoods were developed and deeded (which can span more than a thousand years in some U.K. cities), which has gone back and forth over time.

Where there is private land subject to a public easement, a property owner would retain ownership of the land and the tree, subject only to limitations associated with the easement. But, those limitations might very well authorize the Council to remove or cut down the tree to further the purpose of the easement (e.g. if it was blocking a sidewalk with its growth, or threatened utilities for which the easement was created).

Of course, in some circumstance, the Council can enforce general regulatory laws that authorize cutting down trees on private land (e.g. tree infected with something that could spread to all trees of that type in the area).

Also, it is possible that some public land by be under the control of an entity other than a Council, like a neighborhood association, or another governmental entity (e.g. in the case of a verge along family housing on a military base, or in the case of rental properties on land derived from by a university's land, or in housing associated with a royal palace). In those cases, somebody with responsibility for the land could cut down the tree, but not the local Council.

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  • Would telephone lines that hang 5-8 meters above the street be an easement? (considering that certain trees can grow to no more than 4 meters, depending on species) Aug 24, 2021 at 21:28
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    @Spacefighter Yes. Telephone lines can cross private property (or for that matter, government property if it is not a Council owned utility) only if it has an easement.
    – ohwilleke
    Aug 25, 2021 at 3:55
  • There is no such thing as a public easement in English law. Easements must always have a dominant tenement. All common land is owned by someone, so I am not sure what distinction you are making with "private land". Many commons are owned or managed by local authorities but "yes" is a rather misleading answer for those that are not. Sep 1, 2021 at 22:10
  • @FrancisDavey I am understanding "common land" to mean Council owned land, and a "public easement" to be an easement which members of the general public are entitled to use managed by the local government with jurisdiction over the land. I was not aware, however, that England did not have public easements, which is a widespread common law doctrine in the U.S.
    – ohwilleke
    Sep 1, 2021 at 23:58
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    It could be. I'm an English lawyer, so I don't know enough about US law to know what these mean there. Sep 2, 2021 at 18:45

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