Trees, Disputes and Legal matters

TREES NEIGHBOURS AND TREES NSW

In NSW the law in relation to disputes between neighbours concerning trees changed with the commencement of the Trees (Disputes between Neighbours) Act 2006.

The common law position prior the Trees (Disputes between Neighbours) Act 2006

Under Australian common law there are three courses of action against the owner of land on which a tree that caused the damage grew: trespass, nuisance and negligence. A trespass involves a direct intentional act. Each of these courses of action requires some action or a failure to take action where the defendant is at fault. The intrusion of branches or roots of a tree into a neighbour's property as a result of the growth of the tree where there is an act or omission of the defendant at fault would usually be be a nuisance action rather than a trespass. If a tree is growing over a neighbour's property the neighbour has, under the common law generally, a right to cut away at the boundary so much of the branches and/or roots that encroach; however the neighbour should return the branches or roots. The neighbour may be required to obtain approval of a public authority under a legislative requirement such as a tree preservation order approval from the Local Council. A tree (or for that matter a building or fence) which takes away a neighbour's view or restricts flow of air or takes away light from the neighbour's windows generally does not, in the absence of an easement, give rise to an actionable nuisance. The principles and precedents are quite complex and each fact situation needs to be considered separately in light of the relevant cases.

The Trees (Disputes between Neighbours) Act 2006 – Part 2 Court Orders – Trees that cause or are likely to cause damage or injury

The Trees (Disputes between Neighbours) Act has altered the position in relation to a common law action for nuisance for damage caused by a tree on a neighbour's property. Section 5 provides that 'no action may be brought in nuisance as a result of damage caused by a tree to which this Act applies'. The Act does not apply to all trees nor indeed to vegetation that is not a tree: see for example Buckingham v Ryder (2007) NSWLEC458 where the Court held that a vine which was not self supporting was not a tree for the purposes of the Trees (Disputes between Neighbours) Act 2006. Also the Act essentially applies in residential rather than rural areas and there are a number of exceptions including trees situated on land owned or managed by Council.

Under the section 7 of the Act an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land. The person affected must have made a reasonable effort to reach agreement with the tree owner and usually to have given notice of the application (s.10 (1)). If a neighbour's tree is leaning dangerously or its roots are causing foundations to crack an application might be made to the Court.

A common complaint is trees dropping leaves onto a neighbour's pathways or gutters. The Land and Environment Court has made a tree dispute principle as a guide when considering urban trees and ordinary maintenance issues arising from them. The Court set down a tree dispute principle in Barker v Kyriakidis (2007) NSWLEC292. The case concerned a tree with falling leaves and pieces of small deadwood. The Court stated the following principle:

"For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. … The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily would not provide the basis for ordering removal of or intervention with an urban tree."

The Court in Hendry & Another v Olsson & Another (2010) NSWLEC1302 (14 October 2010) extended this tree dispute principle. There was a claim, among other claims, that the existence of the tree had resulted in mould and slime as a consequence of shading of steps and a paved area. The extension of the principle being that in relation to trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like.

Trees (Disputes between Neighbours) Act 2006 – Part 2A High hedges that obstruct sunlight or views

A common issue in urban areas is loss of sunlight or loss of views caused by trees planted on a neighbouring property. At common law there is usually no remedy. Part 2A of the Act provides a remedy for the affected neighbour. The part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5m (above existing ground level).

 (There are some lands not covered such as land within a rural residential zoned area and also Crown land is exempt).

An owner of land may apply to the court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view of a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which Part 2A applies being situated on adjoining land.

Various orders can be made by the court to remedy, require removal and replacement of the tree or trees and other action.

In any fact situation it would be necessary to consider the terms of the legislation, relevant cases in the Land and Environment Court which have considered the legislation and the particular facts – for example, the trees planted or self sown? Do they form a hedge? What is their height? How many trees are there? Is there a severe obstruction of sunlight or of a view as required by the Act?