In urban and suburban areas trees can often be the subject of a problem between neighbours. Common reasons include:
- Roots damaging sewer pipes
- Parts of a tree damaging the roof or building
- Overhanging branches
- Trees interfering with views or sunlight
- Leaves etc overflowing or blocking gutters
- Damage to driveways and fences from tree roots and branches
The Trees (Disputes Between Neighbours) Act 2006 (Trees Act) provides for certain tree disputes to be adjudicated by the courts, providing clear remedies and pathways for resolution of disputes. Prior to the enactment of the Trees Act, it would be common for neighbours to have to seek permission of the owner of the tree, and council, to prune the tree or remove the offending branch or root and/or bring an action in nuisance against the neighbour. The process has been significantly simplified under the Trees Act.
Mediation is a good starting point for neighbours involved in a tree dispute. Mediation can help to resolve disputes in a cheaper manner than litigation. Further, if a dispute reaches the Land and Environment Court, the Court will not make an order unless the applicant has made a reasonable effort to reach agreement with the neighbour prior to going to court.
Community justice centres across NSW facilitate mediation, it is a free service. Mediators stay independent and help to facilitate each party to have the opportunity to be heard, keep the discussion on track and assist any attempts to make an agreement.
Trees & Hedges
The Trees Act defines a tree as any woody perennial plant, any plant resembling a tree in form and size, or as otherwise prescribed by the regulations. Two or more hedges must rise to a height of over 2.5 meters (s 14a) to form a high hedge.
In order for the Land and Environment Court to have jurisdiction to make orders the trees must be situated on land that is zoned rural-residential, residential, village, township, industrial or business under an environmental planning instrument (s 4). Orders cannot be made in relation to trees that are situated on Council land and the tree must be wholly or principally situated on the neighbour’s land.
Land and Environment Court Orders
The types of matters than can be adjudicated by the Land and Environment Court are where:
- tree branches are overhanging ;
- injury to a person as a result of a tree;
- roots have grown onto a neighbour’s property; or
- high hedges are blocking sunlight or views from a neighbour’s property.
The court has a broad power to resolve tree disputes i.e. the court can make such orders as it sees fit to remedy, restrain or prevent damage to property or prevent injury to a person (s 9). The tree must have already caused damage, be likely to cause damage or is currently causing damage to a person or property. Examples of the orders that the court may make include:
- prune or remove the tree;
- maintain the tree at a specific height/width;
- remove the tree and replace with different species;
- payment of costs associated with the removal/pruning of the tree
- the owner of the tree to compensate the neighbour for damages.
Where a high hedge is blocking sunlight or views the Land and Environment Court can make orders to:
- prune or remove the hedge;
- maintain the hedge at a specific height or width; r
- order to remove the trees in the hedge to be removed and replaced with a different species.
Usually, parties to proceedings will pay their own costs. The court has the power to award costs if it finds that it is reasonable to do so, for example if a party has unreasonably delayed the proceedings. Decisions of the court under the Trees Act can only be appealed on a question of law.
The Land and Environment Court also has the power to enforce its orders that have not been complied with through imposing pecuniary penalties (s 15).
Where a court has made orders that work must be carried out, the applicant in the proceedings can later request that Council take action under section 17. This is effective when the respondent is delaying or has failed to carry out the works ordered by the court.
An appropriately authorised Council Officer can enter land to determine whether the orders of the court have been carried out, and can also carry out the required work. In order to do this the Council Officer must have provided written notice and possess a written authority from Council (s 17).
In undertaking these works at the request of the Applicant, Councils can potentially incur significant costs. Beneficially, the Act provides that the costs of carrying out such work, and the administrative costs of the work can be recovered.
Implications for Council
Orders made by the court run with the land, and as such Council will need to include such information on s 149 certificates where land is being sold but the orders have not yet been carried out. The Trees Act provides that the orders of the Court will be copied to Council under s 14H.
As mentioned previously, the Trees Act does not apply to trees situated on land vested in or managed by Council. This means that it remains possible for actions in nuisance to be brought against Councils for trees on Council land that interfere with a neighbour’s property.
Whilst the Trees Act has simplified the process for owners to resolve tree disputes with their neighbours, the cheapest and quickest method of resolving such disputes is still for neighbours to agree between themselves and approach Council for approval the pruning or removing of the tree.