Don’t let your private hedge be a hazard to public footpaths

Charlotte Ellis, Legal Adviser at DAS Law, explains how to stay on the “right side of the law” and avoid being a nuisance when it comes to your garden or driveway.

24th May 2023

Spring has sprung once again and gardens are beginning to bloom - with flowers, trees and hedges growing at pace. But if your hedge protrudes onto a public paths or highways, it’s important to ensure it remains well maintained, otherwise you could find yourself footing a large bill from the authorities.

Protruding brambles – if a member of the public hurts themselves on a protruding bramble from my hedge, am I liable?

Providing fault can be established, hedge owners may be liable in this situation.  Negligence - acts or omissions falling short of the reasonable standard - is a prerequisite for most personal injury claims.

To bring a successful negligence claim, the injured party must demonstrate that the hedge owner owed them a duty of care and subsequently breached this obligation. Resulting injuries must have been reasonably foreseeable and victims will need to disclose evidence in support of their injuries. Crucially, personal injury claims need to be actioned in the courts within three years from the date on which the accident occurred.

Prospects will need to be assessed if pursuing this type of claim as brambles, much like other invasive plant species, will grow exponentially in the summer months. Therefore, it may possibly be seen as reasonable for hedge owners to maintain and cut the protruding brambles in the summer months to the reduce risk of injuries to members of the public.  Moreover, any compensatory award would need to be proportionate to the injury suffered.

Is there a maximum encroachment of my hedge on a public footpath?

It is common for landowners to have public rights of way, namely public footpaths, running across their land.

Local highway agencies can use the public purse to carry out routine maintenance work, but this does not absolve landowners from responsibility.

The Highways Act 1980 imposes a statutory duty on the Highway Authority to ensure that the surface is free from defect and suitable for the type of traffic ordinarily expected to use it. Whilst the responsibility for surface maintenance lies with the local authority, it is the duty of private landowners to facilitate the safe passage of this traffic. This means promptly repairing broken stiles, gates and fences and keeping paths clear from fallen trees, overgrown vegetation and parked vehicles.

Under the aforementioned legislation, it is a criminal offence to obstruct a footpath or bridleway without lawful authority. You can be subject to a penalty fine of up to £1,000.00, but higher sanctions may be imposed by the courts for non-compliance.

Can the council come and cut my hedge without giving me notice first?

Section 154 of The Highways Act 1980 stipulates that where overhanging hedges, trees or shrubs endangers or obstructs the passage of vehicles or pedestrians or interfere with a street lamp, a competent authority may issue a notice to the hedge owner to remove the cause of the danger, obstruction or interference. Failure to comply with the notice within the specified timeframe can result in the competent authority carrying out the necessary work. This authority can then look to recover any costs reasonably incurred by them through the County Courts.

Where a neighbour complains about your hedge, the local authority can issue a remedial notice if two or more evergreen hedges exceed two metres in height by virtue of Section 66 of the Anti-social Behaviour Act 2003. Failure to comply with remedial notices carries criminal sanctions and the local authority reserves the right to recover any expenses reasonably incurred in order to carry out that work.

Trailing leads – what if someone trips over my electrical cable when I am cutting the hedge?

Much like the protruding bramble scenario, claimants will need to establish that you owed them a duty of care and your breach was responsible for their injuries.

If the trip occurs on your premises, occupiers are still required to take reasonable care for the safety of trespassers in accordance with Section 1(3) of The Occupiers’ Liability Act 1957. This means taking preventative action to ensure that nobody sustains injuries because of the state of the premises, positive acts or omissions.

Harm will always be reasonably foreseeable where a power cord is trailing on a public footpath. Whilst it is not possible to opt out of occupiers’ liability, you may be able to mitigate the claimant’s compensatory award by erecting warning signs and convincing a judge that this was enough to enable the passer-by to be reasonable safe.

Debris – who is liable if a member of the public falls over a bag or pile of debris?

This depends on where the debris was left and who was responsible for leaving it behind.

If a member of the public trips over the debris in a public place and reasonable steps weren’t taken to make the area safe, the injured person could bring a public liability claim against the organisation or authority who owns and/or manages that area. The same is true of accidents which occur inside premises including supermarkets, nightclubs, restaurants and gyms.

If you are the victim, it is important that you ask the duty manager for their accident book to ensure that the incident is recorded. If anyone else witnessed the accident, make sure to obtain their contact details and take photographic evidence if safe to do so.

If the debris consists of brambles and a thorn becomes stuck in a dog’s paw, am I liable?

Pets are regarded as items of personal property by the law in England and Wales.

Dog owners could be entitled to recover their financial losses and out-of-pocket expenses, such as the cost of veterinary treatment, if they can show injury/damage has been caused by your negligence.

However, this would not likely give rise to a successful claim. For example, leaving garden waste out for waste collection is not likely to be considered a negligent act as it is not reasonably foreseeable to cause harm to by passers. Furthermore, the owner of the dog should take reasonable steps to keep their dog from harm.

Can I cut a neighbour’s hedge that is spilling on the pavement / public footpath?

Legally as a neighbour you have the right to abatement which means, you have the right to cut a neighbour’s hedge where it encroaches over the boundary of your property only. You have the right to cut encroaching branches back to the boundary line but must return these branches to the hedge owner as they are classed as their property. Take care when doing this as you may be liable if you cause the tree to die as a result of cutting back too much.

Section 154 of the Highways Act 1980 implies that where an overhanging hedge, tree or shrub overhangs a footpath to which the public has access to, a competent authority may issue a notice to the hedge owner, to remove the danger or obstruction. The Local Authority in whose area the road or footpath is situated should be notified. If the notice is not complied with within 14 days, the competent authority will carry out the necessary work to lop or cut the hedge.

Need more help?

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Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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