Gardens and the law – Q & A does what it says, ie answers some of the most frequently asked questions I get asked as a garden designer and garden consultant. Because the law changes and this article will need to be updated, it’s helpful for you to know that this version was written in April 2022.
It’s also worth checking out the blog links below as there may well be more detail about a particular gardening law topic in there. This is not a comprehensive explanation of each of the sections as there is so much to say, so yes, they will be covered in future blogs if they haven’t yet been. The sections below cover –
- Invasive, non-native Plants
- Trees and Hedges
- Boundaries, Fences and Walls
- Front Gardens
- Garden Buildings
One of the most important things to remember, probably the most important, is that just because it’s your garden doesn’t mean that you can do what you want in it. And before you begin to complain about nanny states, think about it. If you could do anything you wanted in your garden, then so too could your neighbours in theirs. Regardless of the effect to your own house and garden and to the environment as a whole.
On that cautionary note, let us begin…
Invasive, non-native Plants
Section 14 (2) of the Wildlife and Countryside Act 1981, amended in 2010, prevents the release into the wild of certain plants and animals which may cause ecological, environmental, or socio-economic harm. Specifically those plants listed on Part 2 of Schedule 9 of the Act. This was further updated and extended in 2016 to include a Europe-wide response on 14 species of non-native invasive plants which pose a seriously high risk. In Scotland, the Wildlife and Natural Environment Act (Scotland) 2011 makes it illegal to plant any non-native plant in the wild in Scotland.
But what is a non-native invasive plant? A few examples include:
- Japanese knotweed, Fallopia japonica
- Himalayan balsam, Impatiens glandulifera
- Parrot’s feather, Myriophyllum aquaticum
- Creeping water primrose, Ludwigia peploides
It is an offence to keep, cultivate, breed, transport, sell or exchange these species, or release them, intentionally or unintentionally, into the environment. But in England and Wales the list also includes such popular garden plants as:-
- Cotoneaster horizontalis
- Crocosmia × crocosmiiflora (montbretia)
- Parthenocissus quinquefolia, Virginia creeper
- Rosa rugosa, Japanese rose
Which you can still easily find offered for sale. My advice would be not to buy them (there are exceptions when you could, but can be too complicated for most gardeners to want to bother with).
However, if these plants are already in your garden you are not obliged to remove them, so long as you are acting responsibly and not encouraging them to spread. This includes careful disposal of the plant material. For example, do not add to your home compost. Some of the most problematic invasives such as Japanese knotweed are controlled waste and can only be disposed of at certain sites.
Read the Environment Agency’s booklet, ‘Managing Non-Native Plants’ for guidance.
Gardens and the law – Trees
A tree (or shrub) belongs to the owner of the land on which it grows even if its branches or roots go over or under adjoining land. This includes the branches and the fruit of any tree even windfalls.
Branches that grow so as to overhang your neighbours’ land are trespassing on their air space but you need the permission of your neighbour to prune them. Whilst your neighbour can chop the branches back to the boundary they have to return them together with any fruit that might have been on them. If they lop a branch beyond their boundary that is also trespass.
NB If you prune branches or roots from your neighbours’ trees or shrubs where they are in your garden you must take due care not to damage or kill it or you will be liable.
However, if the base of a tree sits on the boundary line between two properties it is jointly owned by both of them and consent should be sought from the other owner before work is undertaken on the tree. Confused? Wherever possible just discuss it with your neighbour.
Tree Preservation Orders
Tree Preservation Orders (TPO) are another common area of confusion. There are four types of TPO –
- Individually specified trees
- Groups of trees
- An Area TPO (commonly called a ‘blanket TPO’) protects all the trees that are present within an area at the time the Order was made
- A Woodland TPO protects all trees within the defined area present and future. It is the woodland that is being protected not specific trees
NB protected trees can be of any species
The category that most frequently seems to catch residents out is the Area TPO where it is part of a Conservation Area. Overgrown hedges that now look like a line of trees are another area of confusion.
Planning permission is required for work to a tree subject to a TPO. This may also affect some shrubs and hedges.
But it is easy enough to check if there are any TPOs in your garden by searching the local authority website.
Hedges
Where gardens and the law are concerned hedges are another minefield of contention – and not just between neighbours! There are two main areas –
Firstly, pruning a neighbours hedge is covered by the same laws as lopping tree branches (as above).
Secondly, birds nests – It is an offence under Section 1 of the Wildlife and Countryside Act 1981 to intentionally take, damage or destroy the nest of any wild bird while it is in use or being built. For this reason it is advisable to avoid pruning a hedge during the main breeding season , which is roughly March – August.
NB if you see this happening and the person will not stop, and you know there is an active nest at risk, then contact the police on 101 as they have the responsibility for enforcing this legislation.
Boundaries, Fences and Walls
The house deeds should indicate who owns fences and walls and is responsible for boundaries. Interestingly, there is no legal responsibility to keep boundaries well maintained unless the deeds state otherwise. (see also Renovating Your Garden part 1 below)
Generally speaking, you will not need to apply for planning permission to take down a fence, wall, or gate. Or indeed to alter, maintain or improve existing ones, so long as there is no increase in height. However, if your property is in a conservation area you may need consent to take these down, regardless of whether or not you intend to replace it with new.
Fences
Most people are aware that a fence or wall against your boundary should be a maximum height of 2 metres in the rear garden and 1 metre in the front garden or where it abuts a public highway.
If you want or need a higher fence – for example because the fence is in your rear garden but is adjacent to a pavement, you will need to apply for planning permission from your local council.
NB different local councils have different restrictions regarding fencing and properties, so always check first.
And although it may not be a legal requirement, discussing your plans for a new fence with your neighbour is a good idea.
Garden Walls
Heights are the same as for fences, however, walls also need their width and materials used in their construction to be considered. How high and wide walls may be also depends on where in the country your garden is, so check first.
Remember that you are liable if a wall or part of your wall falls and injures someone – whether a passer-by or a visitor.
Gardens and the law – Front Gardens
When it comes to the garden at the front of your house, gardens and the law involved are fairly strict. What you are allowed to do is subject to national laws, local council by-laws, permitted development, restrictive covenants and whole host of other rules and regulations.
We’ve already looked at fences, so let’s consider the ground and restrictions on paving it. There are reasons for the restrictions, not least the issues of flooding from water run-off from your property onto the public highway. And it’s not limited to just flooding. Oil, petrol and so on is washed into the drains and finds its way into rivers where the pollution causes damage to wildlife and the environment.
The law in England and Wales was changed in October 2008 as a result of the serious flooding in 2007. If the surface of the front garden to be covered is more than five square metres, then planning permission is needed for laying traditional, impermeable driveways that do not provide for the water to run to a permeable area.
However, many houseowners have been misled into thinking that this refers to the driveway only and that they are allowed to pave over a front garden, perhaps leaving a narrow flower border along one side. Incorrect. The 5 square metres rule applies. You think you have a tiny front garden? Could you fit a small hatchback onto it? Yes? Then it could well be 6 square metres. Makes you think!
Garden Buildings
Structures such as a greenhouse or a small shed are classed as ‘permitted development’ and do not (generally) need permission.
However, gardens and the law does cover garden buildings such as garages, summer houses, gazebos, porches and possibly walls. But in your rear garden, if the structure you want to build complies with the following, it probably won’t require planning. Presuming that it isn’t to be used as habitable space such as guest accommodation.
- it is less than 3m in height with a flat roof
- or less than 4m if it has a ridged roof
- if it takes up less than half the area of the garden, including any other buildings (but not the house itself)
- is single storey
- and is 5m away from the house
There may be restrictions due to living within National Parks, owning a listed building, etc and planning laws vary from region to region, so if in doubt check. If you have built something without permission, you can be made to remove it unless you have had 10 years of unbroken use.
Gardens and the Law – Q & A – and finally
And we haven’t even looked at trampolines, tree houses, BBQs, bonfires, ponds, hot tubs, tennis courts, keeping hens and whether that extra bit of land you bought is classified as garden or agricultural land …
That is partly because some of the laws relating to gardens are local by-laws rather than national laws. But it’s also because we’ve run out of space this week. Definitely a topic to revisit as it affects all of us – whether we own or rent the garden.
For further gardening advice and inspiration, check out Plews Potting Shed blogs, including the selection below and our monthly Tipsheet – You could come and find us on Instagram Pinterest and Facebook too.
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How To Renovate Your Garden, Part 1
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Japanese Knotweed A Brief History of an Invasive Weed
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Landscaping
Should I Plant a Garden Hedge?
Different Types of Garden Fence Materials
Do You have any Greenhouse Plans for this Year?
Garden Sheds and Garden Design Tips
