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There are lots of disputes over boundaries and their heights and so, if you can, always speak to the neighbour first if you are going to alter a boundary or grow something through it. I know it’s not always possible, but everything is so much easier if you get on with your neighbours. Communication is the key.
Always make certain that the boundary fence you wish to improve is your fence. We would advise you not to 'improve' your neighbour's fence in any way, including the application of stain or preservative unless you have their written permission.
The following daunting selection of laws governing boundaries is important to know about, so do read it through before you start altering your boundaries.
Please note that we do not provide individual legal opinion as we are not qualified to do so. We receive lots of emails about boundary fences, often in connection with fence toppings or damage. If you have some issue about what a neighbour or some other person has done and you feel you have been wronged please talk to the person to see if you can remedy the situation and if this fails then you should consult a solicitor. In the first instance you could try contacting the local branch of Citizen's Advice to see if they can help.
- You will require planning permission for any new fence, gate or wall over 2m in height. This will normally include the addition of trellis panels on top of an existing fence if this takes the overall height to above 2m. This may technically also include the addition of wires and brackets to carry a climbing shrub, although this can sometimes be open to interpretation
- You do not require planning permission to grow a thorny plant along the top of your 2m fence (providing there are no support structures over 2 metres) unless there are covenants or restrictions. Check with your local planning authority
- If the new fence or wall borders or adjoins a public highway used for vehicles you may need planning permission if it is higher than 1 metre
- If you live in an area, which has open planned front gardens there is likely to be a covenant restricting the erection of any fence or hedge to the front of the dwelling and you must therefore refer to the local planning authority before you carry out any work
- If you live in a listed building or your property borders a listed building then you may need planning permission before you carry out any work on your boundary fence or wall
- You do not normally need planning permission to plant a hedge, but you should check with the local planning authority first as you will have responsibilities to maintain the hedge so that it does not cause a nuisance to others. (See High hedges below)
- Before you carry out any work on your boundaries do check with the local planning authority first to see if there are any restrictions or if you need planning permission
Highways Act 1980
Section 164 (Injurious toppings)
The local highway authority has a duty to ensure the safe use of the public highway and this section deals with the problems of injurious toppings on fences and walls that are so low that they could easily injure a person simply walking along the public footway.
Section 164, clause (1) of the Highways Act 1980 states the following:
Power to require removal of barbed wire
Where on land adjoining a highway there is a fence made with barbed wire, or having barbed wire in or on it, and the wire is a nuisance to the highway, a competent authority may by notice served on the occupier of the land require him to abate the nuisance within such time, not being less than one month nor more than 6 months from the date of service of the notice, as may be specified in it.
The term ‘barbed wire’ has been interpreted to mean anything with spikes or jagged projections and this would include any made aggressive topping or addition to a wall or fence including carpet gripper, broken glass, nails and preparatory products such as plastic and metal spikes.
The term ‘nuisance’ has been interpreted to mean something that is likely to cause injury to people and animals using the highway and most highway authorities consider things that can cause injury lower than 2.4m to be a nuisance.
If you fall foul of this law you will be issued with a notice requiring you to remove the danger within a specific time period.
Section 154 (Overhanging the highway)
The local highway authority has a duty to ensure the safe use of the public highway and this section deals with the problems of overhanging trees and hedges that shade the light from public street lamps and those which could cause damage and injury to vehicles and pedestrians using the highway.
Section 154, clauses (1) – (2) of the Highways Act 1980 states the following:
Cutting or felling etc. trees etc. that overhang or are a danger to roads or footpaths.
(1) Where a hedge, tree or shrub overhangs a highway or any other road or footpath to which the public has access so as to endanger or obstruct the passage of vehicles or pedestrians, or obstructs or interferes with the view of drivers of vehicles or the light from a public lamp, or overhangs a highway so as to endanger or obstruct the passage of horse-riders, a competent authority may, by notice either to the owner of the hedge, tree or shrub or to the occupier of the land on which it is growing, require him within 14 days from the date of service of the notice so to lop or cut it as to remove the cause of the danger, obstruction or interference.
(2) Where it appears to a competent authority for any highway, or for any other road or footpath to which the public has access—
(a) that any hedge, tree or shrub is dead, diseased, damaged or insecurely rooted, and
(b) that by reason of its condition it, or part of it, is likely to cause danger by falling on the highway, road or footpath, the authority may, by notice either to the owner of the hedge, tree or shrub or to the occupier of the land on which it is situated, require him within 14 days from the date of service of the notice so to cut or fell it as to remove the likelihood of danger.
A height clearance for large vehicles of 5.2m is usually required by the highway authority, unless there are traffic orders in force that restricts the height and or size of a vehicle that can use a particular highway.
Occupiers’ Liability Act 1957
The 1957 Act deals with lawful visitors to your home and places a duty of care on you to ensure the safety of those visitors whilst on your premises. You cannot be charged with any offences under this Act, but it can be used to sue you through the civil courts.
Occupiers' Liability Act Section 2, clauses (1) – (3) states the following:
Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
Occupiers’ Liability Act 1984
The 1984 Act deals with trespassers on your land and in your home, but only applies to personal injury (unlike the 1957 Act that also includes damage and loss to the visitor’s property). A ‘trespasser’ has a wide meaning and can be a thief about to burgle your home, but could be a child attempting to retrieve his ball.
Occupiers' Liability Act Section 1 clause (3) states the following:
Duty of occupier to persons other than his visitors
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if —
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
Importantly clause (5) of the Act states:
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
Therefore clear signage warning of an injurious topping on your wall or fence will limit your liability providing that signage is specific to the risk, e.g. ‘Danger of Injury Do not climb over spikes’ and the danger can be seen. It therefore follows that you should not put injurious toppings on the inside face of a fence or wall (such as carpet gripper) or otherwise hide them, even if you have put up warning signs.
It is largely due to the Occupiers’ Liability Acts that residents tend to use prickly shrubs to deter fence climbing as these naturally growing defenders are outside the legislation.
Finally, don’t lay man-traps as they are almost certainly going to be illegal!
The above references to Acts of Parliament are only parts of the full Acts. If you want to read them in full (and you may need to) please follow this link This link also gives you access to legislation in Northern Ireland, Scotland and Wales.