The Legality of Trees

You’ve been staring at it for months, your partner has asked you to get it sorted and you have been putting it off because you don’t know what the right thing is to do anymore. You are perplexed, confused and to be honest, a little annoyed. That’s right, it’s the tree branch from your neighbour’s garden that leaves a huge mess when dropping leaves every year and you’ve made up your mind to just cut it off. But before you do, let’s educate you on a few tips and the legislation you’ll need to consider first.

Sure the tree branch has been a problem and it’s caused you some laborious days cleaning up after it, but rule one of being a law abiding and courteous neighbour is:

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Rule no 1 – If it’s not yours, don’t cut it.
Why not? Simply put it’s illegal to hack off a neighbours tree branch, roots, or even remove fruit from their tree! The City of Cape Town’s by law states that the tree subsides to the land, which means whoever owns the land, owns the tree and all of its byproducts. Simply put, your neighbours have ownership over said tree and therefore may be found liable for any damages caused, but damages caused do not give you legal access to cause damages to your neighbours property. If the tree is causing structural damage there are a few options available; first you can reach out to discuss the situation. They may not even be aware that the tree is causing damage to begin with. If you manage to reach an agreement stick to what was agreed upon. If all else fails, we’re sure a braai can settle the debate. As for trees on council land (public open spaces and sidewalks) including the 1.5m strip in front of your home, may not be cut by you or a tree feller you have employed. You must request the city’s parks department come and have a look at the tree and fell the problem branches for you.

Yes, but the oak next door is blocking my view and I bought this property for its view. That leads us to rule two;

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Rule no2 – You don’t have the right to a view.
Sounds like that can’t be true? I mean people buy houses all over the country for the views, but alas, our constitution does not have it as a basic right when it comes to property, Provincial law has never thought about your view and municipal law is too busy cleaning the roads of tree leaves to be concerned.

We simply do not have the right to a view, and if you want one, it’ll cost you a pretty penny. So unless you buy the servitude to the property in front of or next to what is blocking that is your view, you will have to be lekker with your neighbours and ask them to consider clearing or topping the offending tree.

The servitude mentioned above refers to the limit of building height or an extension over a certain building height.

Your great uncle in one of the leafy suburbs asked you to come and help him take down an old tree that’s been there longer than him, because he wants to extend his veranda.

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Rule no3 – If it’s older than your uncle, it’s probably protected.
The National Heritage Act (NHA) will block you quicker than you think. Trees older than 60 years and certain indigenous species are protected by national law, which makes it a criminal offence to damage or remove them. If you are concerned that the old tree might cause damage or fall over, have a professional tree feller investigate, then apply to the department of forestry and fisheries for a permit. After the application is processed a representative with great arboricole knowledge will investigate your problem tree and proceed with either a safe or unsafe judgment. This also applies to the transplanting or propagating of protected trees on the SANBI list.

For interest, this includes ALL yellow woods in South Africa, due to their over milling in our forests that decimated the population.

If you notice that a tree might have a shot borer beetle problem or termites have attacked it, it’s time for you to contact the council.

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Last, but not least Rule 4 – Be lekker!
Yes, trees can become cumbersome and cause a lot of grief, blocked drains, fill gutters and become the occasional social spot for dogs, but they serve a greater purpose then keeping you occupied with cleaning up after them.

They are part of a larger ecology at work around you; some trees are home to entire civilizations of insects, fungi, and other critters. One of our indigenous trees the Kiggelaria africana “Wild Peach” has a specific symbiotic relationship with the indigenous caterpillar of the Acraea horta butterfly. The caterpillars strip the tree of its leaves and then the tree shoots out a new set of foliage, like nothing ever happened, a free pruning service if you will.

Trees have been around since before our legislation, they provide us with ecological and physical benefits, are essential in creating leaf litter that becomes beautiful compost and various fruits for us and other animals to feast on.

Let’s take a leaf from their book and remember the following: don’t damage what isn’t yours; look into the tree, not over it; respect the elderly and just be lekker.

Article contributed by Mark MacHattie.  Originally published as a blog by Cape Contours:

The French have taken it a step further …

France proclaims trees should have rights

“A tree is a living organism whose average lifespan is far longer than that of a human being. It should be respected throughout its life and have the right to develop and to reproduce freely, from its birth to its natural death, whether it be a town tree or a country tree. A tree should be considered as a subject of law, including when laws regarding human property are involved.”

This astonishing proclamation of rights is perhaps the most extreme manifestation of anti-speciesism to date, way beyond the demands of animal rights campaigners who are already doing all they can to erase the differences between mankind and the animal world.

Even more remarkably, the “Declaration of tree rights” was adopted in a meeting room of the French National Assembly in Paris last Friday.