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.