Q&As

Advice is required for a client who wishes to enforce a restrictive covenant in respect of his neighbour’s land. The covenant provides that owners of the neighbour’s land cannot construct any fence nor allow any hedge or other plants to grow above a height of 2m. The neighbour has planted trees which are over 2m in height and argues that this is not in breach of the covenant because they are trees (and not plants or hedges) and it is not a restrictive covenant but a positive one.

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Published on LexisPSL on 16/08/2017

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Advice is required for a client who wishes to enforce a restrictive covenant in respect of his neighbour’s land. The covenant provides that owners of the neighbour’s land cannot construct any fence nor allow any hedge or other plants to grow above a height of 2m. The neighbour has planted trees which are over 2m in height and argues that this is not in breach of the covenant because they are trees (and not plants or hedges) and it is not a restrictive covenant but a positive one.
  • Is a tree a plant or a hedge?
  • Restrictive or positive covenant?
  • High hedges

Is a tree a plant or a hedge?

Certainly the common botanical definition of ‘tree’ would suggest that a tree is a type of plant, but we have been unable to find any case law on or other legal authority which definitively confirms whether a tree falls within the wider definition of plant or not. However, a hedge can be formed out of trees (see below).

The case of Distinctive Properties (Ascot) Ltd v Secretary of State for Communities & Local Government focusing mainly on the question of whether a sapling or seedling is a tree, but Sir David Keene indicates at para 42 that a tree would be legally construed as a plant:

‘The definition of “seedling” in the Concise Oxford Dictionary is “plant raised from seed and not from cutting, etc.” If the “plant” is of a tree species, I can see no reason

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