Advice Regarding Land Use

Stacks/The Law Firm in Ballina has acted on behalf of a local family in a successful application brought against their neighbours in the Land and Environment Court under the recently amended Trees (Disputes Between Neighbours) Act 2006.  This is one of only a few such matters that has proceeded to judgment in the Northern Rivers of NSW. 

It was our client’s claim that their neighbours had planted a row of trees which  severely blocked their ocean view.  The claim was strongly contested by the neighbour but the Commissioner found that a view had been severely obstructed and orders were made for the neighbours to remove vegetation and to abide by a tree height restriction into the future.

As any solicitor knows disputes between neighbours can be very difficult and emotional.  In the past hedges and trees have been deliberately used in “revenge” against, for example, an unwanted development next door.  Other times it seems that problems are caused by a neighbour simply being unreasonable and inconsiderate when planting and maintaining trees.  Blocking of views and sunlight and debris falling across boundaries are common complaints.  Prior to this new law there was  very limited legal redress for property owners affected.  The frustration this caused resulted in some severe outcomes including physical altercations between neighbours.  

The intention of the  changes was to provide “a simple, inexpensive, and accessible process for resolving neighbour disputes about trees”.  The Commissioners that hear the matters are generally qualified arborists and the hearing is to be conducted on site and be heard within a couple of hours with judgment to be delivered on the same day.  However if you read the judgments available on the Court website it is obvious that many of these disputes have not been simple nor inexpensive with complex legal argument being advanced by parties generally instructing solicitors and even Barristers, supported by a raft of experts including architects, arborists and “visual impact assessors”.  With the greatest of respect to the Court it would seem that most unfortunately the intent of the legislation to provide a simple inexpensive process has been defeated by the Court’s decision in its consideration and judgements to apply complex legal and planning principles which it more appropriately utilises in its general jurisdiction.   There is scope for a review of this legislation and perhaps these matters should at first instance be handled by local government officers and community justice centres to reduce costs and complexity.

It is our recommendation that any individual suffering problems with neighbours  trees should seek legal advice before attempting to utilise the current process.