Category Archives: Trees between neighbours dispute

Tree Disputes

In 1998, the NSW Law Reform Commission published Report 88, Neighbours and Neighbour Relations. The report identified the deficiencies of the common law of trespass and nuisance when dealing with noise and trees that damage or encroach upon neighbouring properties. Specifically, the common law mostly provides remedies for after the damage has occurred; does not recognize the right to access to light and views; and allows access to a neighbours land in very limited circumstances.

 

The Executive Director of the Law reform Commission remarked:

 

The Commission received a significant amount of evidence that trees and noise are common sources of friction between neighbours. However, the remedies proposed in the report should be regarded as remedies of last resort. Neighbours must talk to each other to try and find mutually acceptable solutions when disputes first arise. Community justice centres are available to help in this process. Reaching agreed solutions in this way is more likely to produce a better outcome and enable the neighbours to continue to live in reasonable harmony. It also avoids the delay, stress and expense of having to go to court to resolve the matter.

 

Following the report of the NSW Law Reform Commission, the Trees (Disputes Between Neighbours) Act 2006 (NSW) (“the Trees Act”) was introduced in 2007[1].

 

The Trees Act provides a mechanism “for proceedings in the Land and Environment Court for the resolution of disputes between neighbours concerning trees”. The Act takes into account not just the interests of the parties to a dispute, but also the impact on the natural and human environment and public amenity.

 

The Land and Environment Court is authorized to make orders for an intervention concerning a tree that either causes or is likely to cause damage or injury[2]; and of a hedge that obstructs sunlight or views.[3]

 

Applications under the Trees Act may be made at the Registry of either the Local Court or the Land and Environment Court. Before an application may be lodged, an applicant must have given at least 21 days notice of the orders sought to the neighbouring landowner, relevant authority or any other person they believe will be affected by the orders.[4]

 

Disputes can only be considered between “adjoining”[5] properties and situated on land that is zoned “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument[6].

 

The court does not have the jurisdiction to consider an application unless certain conditions are met under the Act.

 

Damage or injury principles

 

The Court’s jurisdiction to consider an application for orders under Part 2, s7 of the Trees Act is enlivened if one or more of the following tests[7] can be satisfied:

 

  • Has the tree caused damage to the applicant’s property?

 

  • Is the tree now causing damage to the applicant’s property?

 

  • Is the tree likely in the near future to cause damage to the applicant’s property?

 

  • Is the tree likely to cause injury to any person?

 

The application will be dismissed if none of these tests are satisfied. If one or more of the tests are satisfied, the Court will consider the “discretionary question”[8] of:

 

  • Is the damage or risk sufficiently serious to warrant the Court intervening?

 

  • If so what should the Court order?

 

  • Who should pay the cost for carrying out the orders?

 

Since 2007, principles that have emerged from Part 2 tree damage or injury decisions include:

 

  • An adjoining property includes a property directly separated by a road: P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC.

 

  • Ordinarily, a Court will not order an intervention regarding falling leaves, fruit and small amounts of deadwood as such maintenance is a responsibility expected of one living in an urban area having the environmental and aesthetic benefits of trees: Barker v Kyriakides [2007] NSWLEC 292; see also Hendry & Anor v Ollson & Anor [2010] NSWLEC 1302 with respect to cleaning of paths.

 

  • Vines are not considered as trees: Buckingam v Ryder [2007] NSWLEC 458.

 

  • Where trees existed before the construction or erection of a structure that has been damaged, consideration is to be given as to whether there were alternative opportunities available at the time of construction: Black v Johnson (No 2) [2007] NSWLEC 513.

 

  • When considering whether or not “damage is likely in the near future”[9], a 12 month “rule of thumb” is to be adopted: Yang v Scerri [2007] NSWLEC 592.

 

  • Damage from the tree excludes animals, including birds, reptiles and insects: Robson v Leischke [2008] LEC 152; see also Immarrata v Mourikis [2007] NSWLEC 601 with respect to bees.

 

  • A tree is situated principally on the property it has more than 50% of the base of its trunk at ground level: Brown & Anor v Weaver [2007] NSWLEC 738.

 

  • An applicant is not estopped (ie prevented) from making further applications if the circumstances change in the future: Hinde v Anderson and Anor [2009] NSWLEC 1148.

 

  • Orders of the Court do not prevent a local council from permitting something else to be done under a tree preservation order: Ghazal v Vella (No 2) [2011] NSWLEC 1340.

 

Sunlight or views principles

 

The Court’s jurisdiction to consider an application for orders under Part 2A, s14A of the Trees Act is enlivened if one or more of the following tests[10] can be satisfied:

 

  • Are the plants that are the subject of the application trees within the meaning of the Trees Act?

 

  • If the plants are trees, are there two or more trees?

 

  • Were the trees planted (as opposed to being self-sown or remnants of original native vegetation)?

 

  • If the trees were planted, were they planted to form a hedge?

 

  • Is there a view from the applicant’s property from the point concerning which the application is made and, by necessary inference, what comprises the view from that point?

 

  • If there is a view, is that view obstructed by the hedge?

 

  • If there is a view and the hedge obstructs it, is the obstruction of that view severe?

 

Since 2010, key principles to have emerged from Part 2A sunlight cases include:

 

  • The Court may consider council development control plans for guidance regarding overshadowing: Ball v Bahramali & Anor [2010] NSWLEC 1334.

 

  • The trees must be severely obstructing the applicant’s view at the time of the hearing: Tooth v McCombie [2011] NSWLEC 1004; Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122.

 

  • “Forming a hedge” means “there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered”: Wisdom v Payn [2011] NSWLEC 1012 AT [45].

 

  • A triangularly arranged group of three trees is considered to be a hedge: Salisbury v Harrison & Anor [2011] NSWLEC 1069.

 

  • The Trees Act does not specify a height to which all plants must be maintained; the 2.5m height threshold merely enlivens the Court’s jurisdiction: McLaren v Lewis [2011] NSWLEC 1170.

 

  • The Trees Act does not allow for orders that would create a view that was not available to the applicant at the time their property was purchased: McDougall v Philip [2011] NSWLEC 1280.

 

Types of orders and their enforcement

 

The Court has the power to order the removal of a tree. In the cases it has decided to date, outright removal orders are rare. The court more frequently orders pruning or inspection.

 

If a landowner does not comply with an tree order, their affected neighbour may apply to the local council to have the orders carried out. An authorised person from the council may, after giving written notice, enter the land to carry out the work if the land owner has failed to comply with the order[11].

[1] The Trees Act commenced on 02.02.2007.

[2] Trees Act, Part 2, s7.

[3] Trees Act, Part 2A, s14A.

[4] Trees Act, s8.

[5] Trees Act, s7.

[6] Trees Act, s4.

[7] Trees Act s10(2)(a); see Wheeler v McDonald [2007] NSWLEC 383 at [3].

[8] see Wheeler v McDonald at [4].

[9] Trees Act, s10(2)(a).

[10] Trees Act, s14E; see Haindl v Daisch [2011] NSWLEC 1145.

[11] Trees Act, s17.

Manasseh v Segal & anor [2016] NSWLEC 1014

ON 20 JANUARY 2016, the Land and Environment Court of New South Wales delivered Manasseh v Segal & anor [2016] NSWLEC 1014 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2016/1014.html.

Pursuant to the Trees (Disputes Between Neighbours) Act 2006, the Court ordered that Manasseh’s neighbours, Segal and another, engage and pay for a suitably qualified arborist to install a bracing cable between two stems of a Queensland Brushbox on their property so as to prevent the risk of branch failure.

Lawyers 1300 00 2088

Monhem v Shields [2015] NSWCA 24

ON 18 FEBRUARY 2015, the NSW Court of Appeal delivered Monhem v Shields [2015] NSWCA 24 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2015/24.html.

The NSW Land and Environment Court made orders under the Trees (Disputes Between Neighbours) Act 2006 that the appellants (the Monhems) remove a Camphor Laurel tree and pay for rectification works at their boundary with the respondents (Shields).

The Monhems did not attend the on-site hearing and subsequently applied, without success, to Sheahan J to have the orders set aside on the ground that the hearing had been held in their absence.

The Court of Appeal dismissed an application for leave to appeal stating that the the appellant had not demonstrated a proper basis for seeing aside Sheahan J’s judgment.

Lawyers 1300 00 2088

Tree Disputes Between Neighbours

Disputes between neighbours concerning trees may be resolved through proceedings in the NSW Land and Environment Court.

The Trees (Disputes Between Neighbours) Act 2006 (NSW), which commenced on 2 February 2007, creates a statutory scheme that partially takes away the right to bring a common law action in nuisance over disputes about trees in adjoining properties (s5).

http://www.austlii.edu.au/au/legis/nsw/consol_act/tbna2006363/

Applicants may apply for orders with respect to trees that cause or are likely to cause damage or injury (Part 2) and high hedges that obstruct sunlight or views (Part 2A).

Part 2 orders for trees that cause or are likely to cause damage or injury

A land owner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent damage to property or personal injury as a result of a tree situated on adjoining land (s7) that is zoned residential, rural-residential, village, township, industrial or business but not land that is managed by a council (s4).

The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s10(1)(a)) and has given notice in accordance with the Act (s10(1)(b)).

The court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property (s10(2)(a)), or is likely to cause injury to any person (s10(2)(b)).

In making its determination, the court is to consider the following matters (s12):

  • the location of the tree in relation to the boundary.
  • whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
  • whether interference with the tree would require approval under the native vegetation legislation.
  • the impact of pruning on the tree.
  • any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
  • historical, cultural, social or scientific value.
  • contribution to the local ecosystem and biodiversity.
  • contribution to the natural landscape and scenic value of the land or locality.
  • intrinsic value to public amenity.
  • impact on soil stability, the water table or other natural features of the land or locality.
  • anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
  • steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.

Part 2A orders for high hedges that obstruct sunlight or views

A landowner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (s14B(a)), or any view from a dwelling situated on the land (s14B(b)), if the obstruction occurs as a consequence of trees planted in groups of two or more that are planted to form a hedge (s14A(1)(a)) and rise to a height of at least 2.5 metres above existing ground level (s14A(1)(b)), except for trees on rural-residential land or crown land.

The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s14E(1)(a)) and has given notice in accordance with the Act (s14E(1)(b)).

The court must not make an order unless it is satisfied the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land (s14D(1)(a)(i)) or are severely obstructing a view from a dwelling situated on the applicant’s land (s14D(1)(a)(ii)) and the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order (s14D(1)(b)).

In making its determination, the court is to consider the following matters (s14F):

  • the location of the tree in relation to the boundary.
  • whether the trees existed proper to the subject dwelling.
  • whether the trees grew to a height of 2.5m during the period in which the applicant owned the property.
  • whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
  • any other relevant development consent requirements or conditions.
  • historical, cultural, social or scientific value.
  • contribution to the local ecosystem and biodiversity.
  • contribution to the natural landscape and scenic value of the land or locality.
  • intrinsic value to public amenity.
  • impact on soil stability, the water table or other natural features of the land or locality.
  • the impact of pruning on the trees.
  • any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
  • anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
  • steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.
  • the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost.
  • whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves.
  • the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view.
  • the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.
  • such other matters as the Court considers relevant in the circumstances of the case.

Procedure

Applications may be made to the Land and Environment Court or the Local Court and are considered by a Commissioner of the Land and Environment Court.

The court sets a preliminary conference which is an informal conciliation conference, often held by telephone. If an agreement cannot be reached, a second hearing is held on site with a decision often made on site with written reasons provided 3 or 4 weeks later.

Orders of the court are provided to the parties and the relevant Local Court and the Heritage Council if it was a party to the proceedings. The Local Court is required to list the orders on planning certificates relating to the land.

Enforcement

Failure to comply with an order carries a maximum penalty of $1,100 (s15(1)). Proceedings for an offence may be brought in the summary jurisdiction of the Land and Environment Court (s15(2)).

Successors in title to the land are bound by the orders if the work has not been carried out (s16). The immediate successor in title to the applicants is entitled to the benefits of the order (s17).

The Local Council may, with notice, enter the land and perform the works that have not been carried out and then recover their reasonable costs (s17). A judgment debt in favour of the council may be lodged as a charge on the land (s17A).

Form more information go to http://www.lec.lawlink.nsw.gov.au/lec/types_of_disputes/class_2/trees_and_hedges.html.

Lawyers 1300 00 2088

Goodwin v Haddad & anor [2014] NSWLEC 1145

ON 21 JULY 2014, the NSW Land and Environment Court delivered Goodwin v Haddad & anor [2014] NSWLEC 1145.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172870

The applicant sought orders under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 that the respondent, a neighbouring childcare centre, prune vegetation along their common boundary in order to restore sunlight.

The court upheld the application in part, ordering that each year in the first two weeks of March and September the respondent prune the vegetation to a height no more than 2.5 metres.

Lawyers

Sydney, Australia

1300 00 2088

Barnett v Bayliss & anor [2014] NSWLEC 1011

Barnett v Bayliss & anor [2014] NSWLEC 1011 (30 January 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2014/1011.html

Lawyers

1300 00 2088

Agnese v Ward [2013] NSWLEC 1152

ON 13 AUGUST 2013, the Land and Environment Court delivered Agnese v Ward [2013] NSWLEC 1152 (13 August 2013).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2013/1152.html

The Seaforth applicant sought an order under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for the pruning of a Eucalypt tree back to the respondent’s fence line.

The application was dismissed as the court was not satisfied that the tree did not pose a foreseeable risk of damage to property or injury to person.

Lawyers 1300 00 2088

Bowden & anor v Grayson & anor [2013] NSWLEC 1161

Bowden & anor v Grayson & anor [2013] NSWLEC 1161 (19 July 2013).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2013/1161.html

Lawyers

1300 00 2088

Purnell v Hodge [2012] NSWLEC 1362

Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor [2012] NSWLEC 1362 (25 October 2012).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2012/1362.html

Lawyers 1300 00 2088

Johnson v Angus [2012] NSWLEC 192

Johnson v Angus [2012] NSWLEC 192 (17 August 2012).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2012/192.html

Lawyers 1300 00 2088