Trees (Disputes Between Neighbours) Act 2006

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

Sydney, Australia

1300 00 2088

Mosman Lawyer

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