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A legal guide to
Tree Disputes Between Neighbours

How do trees cause disputes between neighbours?

Every part of a tree can cause disputes – the branches, the tree trunk and the roots.

Here are some examples of how they cause disputes:

  • overhanging branches are hitting a roof, breaking roof tiles, damaging gutters and skylights, and beating against walls and windows, when it’s windy
  • overhanging branches are shading a yard, a garden, a vegetable patch or a lawn, making it hard to grow anything
  • overhanging branches have fallen causing damage to a clothesline or air-conditioning unit
  • overhanging branches are overextended, the tree crown has deadwood, increasing the likelihood of falling, causing injury to a person
  • berries, twigs and leaves constantly fall, filling the gutters, and making it necessary to constantly sweep the paths and clear the gutters
  • tree trunks are growing on a boundary and are destroying the fence
  • roots are cracking a concrete driveway, lifting paving or blocking drains and sewer pipes
  • roots are cracking the concrete floor and walls of a garage
  • roots are destroying a retaining wall
  • hedges are growing high enough to block sunlight to a dwelling
  • hedges are growing high enough to block a view

What can be done about a ‘problem’ tree?

The starting point is to let the neighbour know about the problem. The neighbour’s responsibility to take action starts from the time they become aware of the problem.

Many neighbours act co-operatively, especially if minor pruning is all that is required.

It becomes more tricky if major pruning is required or the tree needs to be removed. In these situations tree disputes arise.

In this article, we cover:

  • Is a Local Council permit required to prune or remove a tree?
  • What if the tree owner does not agree to prune or remove a tree?
  • The common law right to prune overhanging tree branches
  • Court orders to prune and remove trees under the Trees Law
  • Case studies to illustrate how the Trees Law is being applied in NSW

Is a Local Council permit required to prune or remove a tree?

If the plant is a tree located on private land, generally a Council permit is required to prune or remove it.

A permit can often be difficult to obtain because Councils are keen to preserve their ‘urban forests’.

Is it a tree?

A permit is only required if it is a tree. There is no standard definition of a tree. It depends on the Local Council definition. A tree can be ‘any woody perennial plant’ above 3 to 6 metres high or with a trunk girth of between 0.1 to 1.0 metres or with a crown exceeding 3 to 4 metres in width. ‘Tree’ includes palms.

If it is a tree, as a general rule, a permit is required to prune more than 10% of tree branches or tree roots. A permit is required to remove a tree.

Is it a ‘protected’ tree or an ‘exempt’ tree?

In considering an application for a permit, Local Councils distinguish between ‘protected’ trees and ‘exempt’ trees (i.e. trees exempt from protection).

Australian Natives are protected trees, especially trees that are indigenous in an area. For example, much of the Sydney Basin was turpentine-ironbark forest with indigenous trees such as Apple Gums, Grey Gums, Christmas Bush, Swamp Mahogany, Forest Red Gums, Grey Boxes, Tallowwood, Sydney peppermint, Sydney Blue Gums and Christmas bush.

A Council permit is required to prune or remove a protected tree. As a rule, Local Councils will not consent to pruning or removal of a protected tree if the tree is healthy or if it is a heritage item or a significant tree. Local Councils will consent if the tree is diseased, damaged, dead or dying; threatens human life or is likely to damage property.

Introduced species are exempt trees, they are pests because they are invasive - they grow quickly, their roots spread and cause damage to property. Local Councils publish a list of exempt trees in their area. For example, Rubber trees, Indian Coral trees, Umbrella trees, Cocos palms, Oleanders, Willows, Bamboo and Camphor Laurel.

A Council permit is not required to prune or remove an exempt tree.

Some exempt trees are noxious trees. For example, Chinaberry trees, Tree of Heaven, Rhus trees, African Olives and Privet. No Council permit is required to remove noxious trees. Not only is a permit not required but a Council can order a land owner to remove noxious trees.

Some trees are neither protected trees or exempt trees. For example: Jacarandas, Liquidambars, Oaks, Silver Birches and Leighton Greens are introduced species but are acceptable. Council consent is needed for their pruning and removal.

How is the permit obtained?

Only a tree owner can make an application for a tree permit– a neighbour is not entitled to make an application without the tree owner’s consent.

An application form needs to be lodged by the property owner, or their legally authorised representative. In strata schemes, the owners corporation generally makes the application although a unit or townhouse owner may make the application, with the consent of the owners corporation.

All applications are subject to Council's Tree Protection Orders that protect and preserve the tree species important to the local area i.e. the protected trees.

The Council will more favorably consider an application for pruning if it is supported by an arborist report which supports the application. The arborist might point to deadwood in the crown, overextended branches or branches directly overhanging the roof of a residence or commercial building, to justify pruning.

If Council does give approval to pruning, then it will require the pruning to be carried out within the guidelines of the Australian Standard: ‘Pruning of Amenity Trees’ (AS 4373-2007).

If the tree is dead, diseased or dying, or is posing an imminent threat to human life or substantial property, then Council will issue a removal permit even if it is a protected tree.

Many Councils will grant a removal permit if the tree is located within 2 (or 3) metres of a dwelling house or garage located within the same lot as the tree. Most Councils will make it a condition that a replacement tree to be planted.

In heritage/conservation areas, Development Consent is required to prune or remove a tree.

If the tree is an exempt tree or a noxious tree or in a bushfire prone area, Council will issue a removal permit without needing justification.

Failure to obtain a permit can incur substantial fines.

In the past few years, urban Councils are granting fewer and fewer permits to remove trees because on an increasing emphasis in their Vegetation/Tree Management Plans to conserve and enhance the tree scape and environmental amenity of the local area.

In inner-city Sydney, Local Councils are wanting to create an ‘urban forest’ by increasing the ‘urban tree canopy’ by 40%. If consent is granted to removal of tree, it will be made conditional upon planting a suitable replacement. As the Inner West Council says on its website: “The best time to plant a tree was 50 years ago... the second-best time is now!”

The important point to note is that if the tree owner is co-operative, and Council issues a permit, then the tree can be pruned or removed and the problem is solved.

What if the tree owner does not agree to prune or remove a tree?

The tree which moves some to tears of joy

 is in the eyes of others

only a green thing that stands in the way. 
-  William Blake, 1799, The Letters 

Tree owners can become very ‘attached’ to their trees. That might be because they like the privacy that trees provide, or because trees are peaceful to look at and provide a habitat for birds and animals. Or it might be that they may not wish to spend the money to prune or remove their tree, because the money spent gives their neighbour a better quality of life.

If the tree owner does not agree to prune or remove the tree, the neighbour has two options:

  • to prune the overhanging branches (and encroaching roots) themselves under the common law; and
  • to force the tree owner to prune or remove the tree by obtaining Court orders under the Tree Laws

The common law right to prune overhanging tree branches

The common law regards tree branches overhanging a property as a nuisance to a neighbour, because the overhanging branches affect their ‘amenity’. Loss of amenity is caused when trees: cast shade, cause grass to die off, vegetable gardens to not grow, leaves drop into swimming pools and fill roof gutters, block sunlight or a view.

The common law gives the neighbour to the right to prune the branches to abate the nuisance (‘abate’ means ‘remove’). As Justice Best said in the 1823 decision of The Earl of Lonsdale v Nelson:

If another man’s tree overhangs my land, I may lawfully cut the overhanging branches.

These rules apply to using the right to prune overhanging branches today:

  1. A neighbour has the right to ‘abate the nuisance’, that is, to prune the tree or trim the hedge branches if the branches encroach on their property. Nothing more is required. There is no need to show that the tree or hedge is causing any harm. Encroachment is enough.
  2. The right is to prune the branches to the boundary line of the property. The pruning needs to be done without entering into the tree owner’s land, unless the owner’s permission has been obtained to enter the land, or it is an emergency. It is trespass to enter onto the tree owner’s land to carry out pruning without permission.
  3. The pruning should be carried out without injuring the tree or hedge. Pruning should be carried out within the guidelines of the Australian Standard: ‘Pruning of Amenity Trees’ (AS 4373-2007). Unless the pruning is minor, a qualified arborist should be engaged to shape the tree correctly because poor pruning can damage a tree.
  4. Some Local Council websites state that the tree owner’s permission is needed to prune overhanging branches. This is not correct. In a recent decision of the NSW Supreme Court of Donnellan v Cadeddu, Justice White applied the 127-year-old precedent of Lemmon v Webb which stated that no permission is required to be obtained from the tree owner. Note – the common law develops by way of precedent decisions such as these because it is judge-made law.
  5. While asking permission is not a legal necessity, it is ‘neighbourly’ to let the neighbour (the tree owner) know that branches of their tree will be pruned, so as to give the neighbour (the tree owner) the opportunity to do so themselves.
  6. The neighbour who prunes should return the pruned branches and leaves to the tree or hedge owner, because the tree branches or hedge clippings belong to the tree or hedge owner. If the branches have fruit or flowers (including any fruit or flowers which have fallen), or if the wood is valuable, the neighbour must return them to the tree owner to avoid legal liability for taking or keeping them.
  7. Justice White said that a neighbour does not need to go to any more trouble to dispose of the trimmings than to deposit them over the fence. Again, while not a legal necessity, it is ‘neighbourly’ to ‘offer’ the trimmings to the neighbour whose tree or hedge it is (the tree or hedge owner). The ‘offer’ might be to deposit the trimmings in the tree or hedge owner’s garden organics (green lid) bin. If the tree or hedge owner rejects or does not respond to the ‘offer’, then the neighbour who prunes can dispose of the trimmings themselves. The ‘offer’ might best be in writing in the form of a note or an email.
  8. Abatement is a self-help remedy. It is to protect against the nuisance (the loss of amenity caused by the overhanging branch). The person pruning the branches bears the cost, unless the pruning is ordered by a court. In Queensland (but in no other State), the tree owner may be required to pay up to $300 of the cost of pruning without a court order if the tree owner has been given proper notice.
    Exceptions to this rule apply if the tree is poisonous, in which case the tree owner is responsible to pay for the cost of pruning, if they planted the tree.
  9. If the neighbour wants to do more than prune the overhanging branches, such as to claim compensation for damage caused by the branches or wants an order that the neighbour prune a tree because it is dangerous, difficult to access or is a hedge which blocks sunlight or a view, then they need to make an application under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Law).
  10. The common law right to prune overhanging branches is subject to Local Council requirements to obtain a permit to prune. A Court order made under the Trees Act will replace a Council permit.
  11. These same rules apply to pruning encroaching roots as they do to pruning overhanging branches. It is permissible to install root barriers inside the boundary (not on the tree owner’s side) to prevent the spread of roots. As a rule of thumb, tree roots will spread to the extent of the canopy (the ‘drip line’). The structural root zone is closer to the trunk. It is important not to cut roots inside the structural root zone, so as to not destabilise the tree.
  12. Damage caused by branches falling from a tree owner’s tree on a house, garage, shed or fence is covered by the neighbour’s homeowner’s building insurance. Damage caused by tree roots from a tree owner’s tree is not covered by insurance (it is a policy exclusion).

Court orders to prune and remove trees under the Trees Law

In Victoria, South Australia and Western Australia, the common law is the sole law that applies. There is no specific legislation dealing with tree disputes. Because the common law remedies are complex and the procedure is costly, neighbours are encouraged to mediate. It’s also worth finding out whether a tree permit will be needed from the Local Council and asking advice from an arborist.

In Victoria, the Victorian Law Reform Commission has recommended a new law to deal with Neighbourhood Tree Disputes.

In New South Wales, Queensland and Tasmania specific legislation exists. In NSW it is the Trees (Disputes Between Neighbours) Act 2006, in Queensland it is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and in Tasmania it is the Neighbourhood Disputes about Plants Act 2017 (the Trees Law).

The Trees Law give next door neighbours specific rights and a simplified procedure to enforce their rights to force a tree owner to prune or remove their tree.

The Trees Law:

  • applies to urban trees in residential and business areas, not to trees on rural land
  • applies to all woody perennials, including palms, bamboo vines and plants such as bananas, not just trees covered by Council Tree Protection Orders or permit requirements
  • allows for orders for branches overhanging the boundary to be pruned by the tree owner
  • allows for orders for trees to be removed by the tree owner, if they are likely to cause serious injury to a person
  • allows for orders for trees to be pruned by tree owner if they have caused or are likely to cause serious damage to a building within the next 12 months
  • allows for orders for trees or hedges to be pruned or removed by the tree or hedge owner to avoid severe obstruction of sunlight to a window or glass doors; and in Queensland, to solar panels or TV antennas on a roof, and in NSW to a skylight in a roof
  • allows for orders for trees and hedges to be pruned or removed by the tree or hedge owner to prevent severe obstruction of a view from a dwelling, if the view existed when the neighbour took possession of the land - in Queensland this right to a view applies to trees, in NSW, this right to a view applies to high hedges (at least two trees at least 2.5 metres high)
  • allows for orders to be made requiring the land owner to prune a tree regularly
  • allows for orders to be made requiring the tree owner to pay compensation for the damage caused by the tree to the neighbour’s building and improvements
  • allows Council tree preservation / tree protection orders and heritage orders to be overridden by court orders
  • allows for orders to plant more suitable trees, to replace the trees removed
  • allows for orders to be made that the tree owner pays for the cost of pruning or removal of their tree, unless the neighbour has contributed to the problem, in which case the neighbour might be ordered to contribute part of the cost

In NSW, the Land and Environment Court (NSWLEC) makes orders to prune or remove trees, and for payment of compensation for damage or injury caused by trees.

In Queensland, the Queensland Civil and Administrative Tribunal (QCAT) and in Tasmania, the Tasmanian Civil and Administrative Tribunal (TASCAT), make similar orders

In all states, the next door neighbour is encouraged to make reasonable efforts to reach agreement with the tree owner before going to court.

Are you looking for a more detailed analysis?

I have prepared five in-depth articles which you can access by clicking the link. They are analyses of NSW law and case studies:

  1. What can you do if branches from a neighbour's tree overhang your property and spoil the enjoyment of your yard or are overhanging your roof? Find out in Tree disputes #1 The right to prune overhanging branches
     
  2. What can you do if you are you worried that a tree branch might fall or that a tree trunk is growing too close and is damaging your property? Find out in Tree disputes #2 Tree branches and trunks causing damage
     
  3. What can you do if you are worried that tree roots from a neighbour's tree are damaging your property or sewer lines? Find out in Tree disputes #3 Tree roots causing damage
     
  4. What can you do if you are you worried that a tree or tree branch might fall and cause injury? Find out in Tree disputes #4 Trees causing injury
     
  5. What can you do if you are you suffering a severe obstruction of your sunlight or a view from a bamboo, lilly pilli or other hedge? Find out in Tree disputes #5 High hedges blocking sunlight or a view

Case studies to illustrate how the tree law is being applied in NSW

The NSW Land and Environment Court has a special division which deals with tree disputes under the NSW Trees (Disputes Between Neighbours) Act 2006.

This is a selection from the 1,200 decisions of the Court since 2007. I advised the next door neighbour successfully in four of these decisions, with the result that the trees were removed or the hedges were pruned or removed.

Case Study #1 Roots

Facts: A Tallowood (tree to the right) and a Sydney Blue Gum (tree in the middle) were planted in the early 1980s less than 1 metre from the boundary. Woody tree roots had grown under the brick footings of the 1910 era house (on the left) in inner city Enmore. The tree roots had expanded and caused “hogging” i.e. an upward deflection of the brick wall, and internal wall cracking. Tree roots were found touching and under the foundation piers which countered the tree owner’s argument that the cracking was caused by expansion and contraction of the reactive clay soil on which the house was built

Orders: Both trees were to be removed, the stumps and woody roots ground. The tree owner was to pay the cost (about $15,000 per tree). The tree owner was also ordered to contribute 20% to the cost of repairs to the sewer pipe, paving, etc.

Comments: The trees were growing too close to the house (about 2 metres). The roots were lifting and twisting the foundations. The court would have preferred these indigenous trees to remain, but the arborists and engineers considered that cutting the roots to install a root barrier would destabilise the trees. Other trees nearby would ameliorate the visual amenity of these trees.



The closest two trees - the Turpentine and the Sydney Blue Gum (white trunk) that were ordered to be removed © Anthony J Cordato

Case Study #2 A bamboo invasion

Facts: The neighbour had built garden beds and installed a root barrier near the stone dividing wall which he built between the properties about 10 years previously at Castle Cove. He made the claim because the garden beds were being colonised continuously by bamboo from the bamboo owner’s garden, and were destroying the wall.

Orders: The bamboo was to be removed to no less than 3 metres from the boundary and the garden beds rebuilt, at the bamboo owner’s cost, and the bamboo owner was to pay $500 towards the cost of replanting.

Comments: The damage caused by the bamboo was obvious to the owner for many years, yet he allowed it to continue. Bamboo and vines are covered by the Trees (Disputes Between Neighbours) Act 2006. So are many ‘trees’ which may not come within the Local Council definition of a tree.

Case Study #3 Paving damage

Facts: A strata scheme wanted to re-lay a concrete parking area which had been extensively uplifted and cracked by the roots of a Swamp Mahogany tree (an indigenous tree) growing next to the boundary. The uneven concrete was a trip hazard.

Orders: The tree was to be removed at the tree owner’s cost because the roots had been a cause of the damage. Root pruning was not feasible because it was likely to destabilise the tree. A large jacaranda growing at the rear of the tree owner’s property would compensate for the loss of the tree.

Comments: Tree roots uplifting and cracking paths and driveways are common reasons for tree removal, if root pruning is not feasible. The tree roots need not be the only cause of the damage, such as in this case where normal wear and tear or failure of the sub-grade could have contributed to the cracking of the concrete slab. This could have been the reason why no compensation for the damage was pressed.

Not long ago, I was asked to advise upon a claim made against a client for root damage which was alleged to have caused a neighbour’s driveway to lift and cause cracks in brickwork in the house. The offending tree was a Liquidambar, which is a tree known for its extensive root system.

The claim was settled out of court.

Here’s how - because the tree was growing near the boundary, we commissioned a boundary survey, and to our surprise, found that the trunk of the tree was 70% on my client’s land and 30% on the neighbour’s land. As you can imagine, not only did the neighbour’s claim for compensation ‘collapse’ because the damage was caused by a tree that they partly owned, but they agreed to contribute 30% towards the cost of removing the tree! Note that a Council tree removal permit was obtained before the tree was removed.

Case Study #4 Dying tree

Facts: A Forest Red Gum, an indigenous species at Blacktown, was in an advanced state of decline with thin canopies and significant dead wood. Once, it had contributed to the amenity of the area, but now it was a hazard likely to cause damage to property or injury to persons.

Orders: The tree be removed to a height of not more than 3 metres, and loose fence palings be reaffixed to the damaged dividing fence at the tree owner’s cost.

Comments: Removal of an indigenous trees can be justified if it is dying.

Case Study #5 Storm Damage

Facts: During a storm, limbs from two Grey Box trees on the tree owner’s property fell and damaged the neighbour’s guttering, a roof panel, fence panels and fly screen. The affected neighbour had claimed the damage on his insurance, and the claim had been paid. He wanted the trees removed to prevent a recurrence. The tree owner’s arboriculture report stated that the limbs broke from the tree because of the very strong winds, not from any structural weakness.

Orders: The two trees must remain because they contributed substantially to the general amenity of the land and contribute to the ecosystem and biodiversity of the local area. The trees are to be pruned by the tree owner every 4 years. The tree owner was ordered to pay one half of the insurance excess of $300.

Comments: The Court will not remove indigenous trees that are healthy. The Court will make a pruning order instead. The tree owner is not liable for storm damage caused by branches or trees falling from a healthy tree. Home Insurance covers the next door neighbour for damage from falling limbs and trees, if caused by storm and tempest.

Case Study #6 Don’t complain about fallen leaves

Facts: The neighbour complained of leaves dropping from a eucalypt tree on to his house gutters and in the yard where the clothesline was situated. The tree straddled the boundary. He wanted the tree removed.

Orders: The Court refused to make a removal order. It stated this ‘tree principle’:

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

Comments: The Court has also ruled that no order would be made to prune or remove a tree because animals, such as mammals, birds, reptiles or insects such as bees, may be attracted to a tree or use it for habitat, even if they cause a nuisance.

Case Study #7 Leighton Green (Leyland Cypress) hedge

Facts: 76 Leyland Cypress (Leighton Green) trees were planted in a double row as a high hedge on the boundary, inside the tree owner’s land at Blackheath, in the Blue Mountains. When grown, they formed a solid green screen which protects privacy and acts as a wind break.

The neighbour’s house was near the boundary. When the neighbour acquired the house in 2000, the trees were 2-3 metres tall. Sunlight entered the living areas in the afternoon in winter. There were views of the sunset over natural and cleared land. There were photographs taken at the time to prove this. Leyland Cypress is quick growing.

By 2015, the trees had grown to be 16 metres tall. They had not been pruned. The formed a high hedge which completely blocked the sunlight and the views, all year round. Shadow diagrams were produced to prove that the obstruction was severe.

The neighbour had tried to reach a reasonable agreement with the tree owner, but failed. The Leylandii trees are not indigenous; they were of no great value in terms of public amenity; and were evergreen.

Orders: 38 trees comprising the southern half of the hedge were to be removed and the boundary was to be replanted with hedge of a more suitable species which were to be pruned annually to 3 metres. The other 38 trees were to be pruned to a height of 4 metres and were to be pruned annually. The tree owner was ordered to pay the cost.

Comments: Whether in the country or the city, hedges of Leighton Green need regular pruning when they grow above 2.5 metres and form a high hedge which severely obstructs sunlight to, or a view from, the next door neighbour’s house.

Case Study #8 Harbour view

Facts: The owners of a property at Dover Heights, in the Eastern Suburbs of Sydney, had a view from their living area and back deck over Sydney Harbour to the CBD, the Harbour Bridge, sails of the Opera House and district views. They had lived there for 11 years. They were selling the property and the purchasers were concerned that two Norfolk Island Pines growing in the neighbour’s yard below them, which would completely block their million-dollar harbour view if they were allowed to continue to grow.

In past years, the neighbour had kept the trees pruned to form a hedge about 6 metres tall. At the purchaser’s request. the sellers made an Application to the Court that the hedge be kept pruned to that height so as to keep the view. The photo was in the Application.

Orders: At the hearing, no pruning orders were made because the neighbour had pruned the trees to 6 metres after being served with the Application. The court noted the neighbour’s intention to keep the trees pruned in the future.

Comments: Property owners can only protect the view they have when they buy the property. In this case, the purchasers relied upon the sellers to make the Application so that at the hearing (which was after the purchase was completed) they could take advantage of to the view the sellers enjoyed. Otherwise, if when they purchased the hedge was blocking their view, they cannot ask for the hedge to be pruned to provide them with a better view: “it is not for an applicant to gain views they have not previously enjoyed from their property”.

Case Study #9 Bamboo hedge blocks water view

Facts: A hedge of Slender Weaver Bamboo was planted all along the boundary fence, inside the neighbour’s land. It had grown to 4 metres high and formed a solid green screen. The bamboo can grow 8 metres high. The neighbour had planted the bamboo to protect the privacy – both for their house, pool and garden.

A dispute arose because the bamboo was blocking the view from a living area in the house adjoining. When the owners purchased the house adjoining in 2009, there was no bamboo. They enjoyed water and land views of Middle Head and Balmoral Beach. It was these views that the bamboo was blocking. The photo on the left was taken when they purchased the property, the photo on the right represents the ‘current’ view.

The Court decided that the neighbour who had planted the bamboo had sufficient screening by way of a fence and lattice to protect the privacy of their pool and garden, and that the hedge obscured the most valued part of the other neighbour’s view.

Orders: All of the bamboo growing along the rear boundary was to be removed within 30 days, and steps necessary to prevent the bamboo regrowing needed to be taken. The neighbour who had planted the bamboo had to pay the cost of removal.

Comments: Using bamboo to create a privacy screen is liable to cause problems unless it is kept trimmed to 2.5 metres, or a low-growing species is selected. In this case, the Court ordered that any further screening along the boundary must be of a species that grows to no more than 2 metres in height at maturity. Also, the law is not confined to water views, it can be used to protect a view of parkland or suburban landscape.

Client feedback: “Think we had a fabulous team and we appreciate all the expertise you all brought to our case.”

Case Study #10 Falling branches cause damage

Facts: A large Sydney Blue Gum grows in the rear garden of a property in the Sydney suburb of at Rockdale. It is a healthy tree, planted 30 years ago by the property owner, and is now over 30 metres high. It is pruned regularly. It is growing near the rear boundary and almost one entire quadrant of the tree’s broad crown extends above the neighbour’s property.

The tree is a significant natural feature of the landscape, as can be seen from the photos.

The neighbour applied for the tree’s removal because falling branches had caused damage to their air conditioning unit and clothesline and was likely to cause damage and possibly injury in the future. The tree owner wanted to keep the tree and was prepared to prune the deadwood and hazardous branches (at her cost).

Orders: The application for removal was refused. The tree owner was ordered to carry out the pruning within 60 days (at the tree owner’s cost). The application for compensation for the damage was refused because the tree had been pruned regularly in the past.

Comments: The Commissioner said: “the tree contributes significantly to the local environment, to public amenity and to the landscape value of the tree owner’s property and surrounding properties. … I found no reason to remove the tree, as the risk of branch failure can be sufficiently minimised by removing dead and other hazardous branches from the tree’s crown.”

Advice for tree owners

It is wise for tree owners to obtain an arborist report when faced with a tree dispute, and act on its recommendations. This can not only avoid a court proceeding, but more importanty, gives the tree owner some control over the outcome if the case goes to court.

Sensible tree owners follow these rules:

  • If the tree is growing near the boundary, they will agree to the next door neighbour trimming overhanging branches and encroaching roots, at the next door neighbour’s cost. They do so because they know if the neighbour goes to court, they will be ordered to do so and pay the cost.
     
  • If the tree owner becomes aware of the possibility of damage or injury caused by their tree, they will take action to prevent it by engaging an arborist to advise on what to do.
     
  • If the tree is an protected tree, they will know that it is very difficult to obtain Local Council consent to remove the tree, unless it is dead or dying. They will be looking to prune the tree instead.
     
  • When in doubt, a tree owner will obtain not only an arborist’s report on the tree, but also a civil engineer’s report, if there is structural damage.

    Court applications should be settled if possible, without going to a hearing, to avoid legal fees. This is because no legal fees are awarded to successful parties in the proceedings, except in rare circumstances.
     

Cordato Partners Lawyers advises on tree disputes and acts in tree applications made to the Land and Environment Court.

The advice we give is based upon our best analysis of the cases that have been before the court and our experience in advising upon and conducting those cases.

Please feel free to contact us by email or phone for a short consultation free of charge.
 

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