PESKY PERENNIALS AND TREE TRAUMAS

25/01/2012

Altercations with neighbours. They happen for a number of reasons, from noise complaints to fence repair costs and everything in between. A fairly common dispute is over the neighbour’s tree – or more specifically – its overhanging branches or spreading roots, which can cause building damage, blocked drains or backyard litter.

The law can’t help if the dispute is purely about aesthetics. But if it’s to do with a person being injured (or at risk of being injured), or your property being damaged (or in danger of being damaged), then you can seek a legal remedy under the Trees (Disputes Between Neighbours) Act. As of August 2010, you can also resolve disputes about hedges that severely block your sunlight or view.

The first step is to try to resolve things with your neighbour. Failing that, you can make an application to the Land and Environment Court. The process is quick, relatively cheap (currently $212 for an individual to make an application) and the proceedings informal (no lawyer required), but you’ll still have to be able to prove your case. You’ll also need to serve a copy of the application on your neighbour, giving them 21 days notice before the hearing.

In making a decision the Court will consider things like the tree’s location, how it contributes to privacy, sun protection or land value, whether it has any historical/cultural value, its impact on land features (eg. soil stability), and how pruning would affect the tree. And importantly, whether anything else (other than the tree) has contributed, or is contributing, to the risk of someone being injured or the property damaged. The Court will also take into account whether the owner has taken steps to prevent (or fix) damage/injury.

In an interesting 2011 case, a Sydney woman took her neighbour to court over his refusal to cut back the branches of his jacaranda tree, which she alleged dropped flowers and sap on her roof and damaged her laundry. The Judge found that the linen stains in her photos were, “consistent only with a flower of the jacaranda being folded into and subsequently crushed in the linen.” A deliberate act? He didn’t say, but she did lose the case.

If the dispute can’t be resolved at a preliminary hearing, a final hearing will usually take place on site. The Court can make a range of orders, like requiring the owner to prune or remove the tree, authorising that their land be entered so an action can be carried out (eg. to get tree removal quotes), or ordering them to pay compensation for property damage.

While it’s clearly best to resolve things amicably with a neighbour, that’s often easier armed with the knowledge that the law’s on your side.



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