THE LEGALITY OF TREES

by Mark Mac Hattie

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, best read up on the legality of trees. There is legislation in place to protect the green giants living peacefully in your neighbourhood – some having been there even longer than the neighbourhood itself!

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

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 bylaw 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 neighbour has 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 damage to your neighbour’s property.

If the tree is causing structural damage there are a few options available:

You can reach out to discuss the situation with your neighbour. 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, they may not be cut by you or a tree feller you have employed. You must request the city’s parks department to 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…

Rule no 2: You don’t have a 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.

Rule no 3: If it’s older than hour uncle, it is 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 has been 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.

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 is time for you to contact the council.

Last but not least… Rule no 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 than 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 civilisations 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, which becomes beautiful compost, and bear 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.

“As is imitation to flattery, so is a landscape designer to nature. Being an avid user of the Mediterranean palette, whether it be plants, colours or textures, my mythical paintbrush is dipped in regions and I paint in themes.”