Important Legal Aspects re Tree Disputes Between Neighbours
Benefits of Trees
Plants are an essential part of life on Earth - they convert sunlight energy to eadible food.
In the modern urban environment - trees beautify our surroundings - and provde shade and shelter.
BUT most large trees can become dangerous or destructive if planted in the wrong location
Trees can also become a major annoyance - in certain situations
Large trees can drop heavy branches if dead or dying - particularly during storms and strong winds.
The dropped braches can land on people or electricity wires causing severe injury even fatalities.
Tree roots can uplift footpaths causing a safety hazard and injury to people.
Tree roots can uplift foundations of building causing the building to collapse.
Tree roots and branches can damage footpaths - driveways - fences - roof tiles - buildings and other structures
A Major Annoyance
Trees can block drains and sewer pipes
Leaves - twigs - berries - can block guttering and litter surrounding properties-
Tree can also block sunlight in the wrong location - making it very difficult to grow a lawn
Trees can also grow quickly to obscure valuable view lines.
Local Councils TPO Tree Preservation Orders
Local Coucils TPO Regulations make it an offence to prune or remove protected trees without council consent.
To be a protected tree, a tree must be more than 2.5 metres high and not be dangerous, noxious or growing in a hazardous zone.
Dead trees, diseased trees or trees liable to fall are dangerous trees; trees such as rubber trees, umbrella trees, bamboo and camphor laurels are noxious trees; and trees growing in bushfire zones are in a hazardous zone.
All these may be removed without council consent, but only by the property owner.
A property owner must obtain a Tree Pruning or Removal Permit for tree pruning or removal of protected trees. However, a neighbour cannot obtain a permit to prune or remove a tree which is growing on their neighbour's property.
Disputes over neighbour's trees have become more and more common because urban dwellers like to plant trees near boundaries for privacy.
Trees Disputes Between Neighbours) Act 2006
In 2006 the NSW legislature enacted Trees Disputes Between Neighbours) Act 2006 (the Tree Act) to give rights to neighbours to obtain tree orders against owners, and to set out legal responsibilities in dealing with tree disputes between neighbours. An aggreved neighbour n may be able toobtain a Court order to prune or remove a tree growing on a neighbour's side of the boundary.
A tree is defined to include any woody plant and any plant resembling a tree in form or size - it includes a high hedge, bamboo, a vine, a bare trunk and a stump. It includes single trunk and multiple trunk plants - there is no minimum height requirement, except for hedges.
Where must the tree be growing?
The tree must be growing in a residential or business area in the city or in a country village.
The tree must be growing on a neighbour's land, and if on a boundary, be wholly or principally on the neighbour's land.
Trees growing on the street, or in the countryside cannot be made subject to an order under The Tree Act.
Trees growing on Council owned reserves and parklands can be made subject to an order if the trees are causing or likely to cause damage or injury.
What can a neighbour do?
The affected neighbour has the right to apply to the NSW Land and Environment Court for a court order to prune or remove the offending tree to prevent damage to property (buildings, paths and the like) on their land or to prevent injury to any person as a consequence of the tree, and for repairs to the property and compensation.
Expert evidence from an arborist may be required to prove that the tree is likely to cause or is causing damage or injury.
For example, the court may order removal of a tree which causes allergies or medical conditions, if medical and arboricultural evidence is given.
What orders can a Court make?
The Court may make these orders to prevent or rectify damage or injury by the neighbour's tree:
to the tree - pruning or removal of deadwood, installation of root barriers and/or root pruning, tree maintenance, grinding of trip hazards; and
to the property - re-laying of paths or driveway, re-laying of courtyard paving, replacement of sewer pipes, repair of retaining walls or compensation for this work.
The Court may order the cost of the tree pruning or removal, and repair and replacement work to be paid for by the owner or the neighbour, or be shared.
What principles has the Court layed down to refuse to make an order?
To date, the Court has formulated two tree dispute principles, as follows:
The tree was there first - if the tree was already growing when the structure was built or if it was self sown rather than planted, it may mean that no compensation can be recovered by an owner whose structure has been damaged by tree branches or roots from a tree growing on a neighbour's property.
Ordinary maintenance issues - if an urban tree drops leaves, flowers, fruit, seeds or small deadwood, no order will be made to prune or remove the tree.
No order to pay compensation for repair works or damage to an owner's structures will be made unless the owner has warned the neighbour and the neighbour fails to prune or remove the tree to prevent further damage - a neighbour is not responsible for damage caused before the warning was given.
No order will 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, and cause a nuisance.
Can orders be made to trim hate trees or hedges?
As a general rule, no order will be made to prune or remove a tree on a neighbour's property which obstructs sunlight to a window of a dwelling or obstructs a view from a dwelling.
But what if two or more trees form a green wall? Recent amendments to the Tree Act have given a 'ray of sunlight' - if two or more trees form a high hedge (over 2.5 metres high), and severely obscure sunlight to a window in a dwelling or a view from a dwelling then the Court may order pruning and maintenance.
Court orders are registered with Council and will appear on Planning Certificates issued by Council for attachment to Contracts for the Sale of the property on which the tree affected by the order is growing.