Tree disputes: know your rights
Tree disputes are among the most common points of contention between neighbours, and between homeowners and their local council. Whether it’s an overhanging branch, invading roots, foliage blocking the sun or trees being cleared, it’s important to understand your rights and responsibilities before taking any action.
Special laws exist for resolving tree disputes
There are laws which are meant to provide a simple, inexpensive and accessible process for resolving neighbourhood disputes involving trees. These are outlined in the NSW Trees (Disputes Between Neighbours) Act and its 2010 amendments.
However, many people find it is not as simple as following this process, as there are all sorts of laws and regulations that come into play when there is a tree dispute.
You may think you can prune a neighbour’s tree that is intruding onto your property, or cut back roots that are digging into your pipes or causing cracks in the walls. But there are regulations, such as tree preservation orders and council applications you might have to go through before you can get out the saw.
Property owner’s tree removal results in five-year court case
Cutting back or chopping down a tree can get both complicated and expensive. A recent case which took five years to resolve in the Land and Environment Court involved a property owner who removed 74 trees without council permission. (See Ku-ring-gai Council v John David Chia (No 15)  NSWLEC 1.)
The property owner, whose land is in the Ku-Ring-Gai council area, had ordered that trees be cleared from bushland at the end of his property, which was in fact Crown land.
The council said the trees were protected by a preservation order. The property owner argued that there was no clear line marked where his land ended and Crown land began. He went on to say that he didn’t chop down the trees, the contractors did. So, he wasn’t responsible. The contractors asserted that they only did what they had been commissioned to do.
It was a mammoth trial. The judgement ran to 534 paragraphs, with 41 previous judgements referred to and many witnesses called. The judge found the property owner guilty of an offence against section 125(1) of the Environmental Planning and Assessment Act.
The property owner was fined $40,000 and ordered to pay the prosecutor’s costs of the proceedings. Under section 126 of the Act, offenders can face fines of up to $1 million, as well as an order to plant new trees.
Dispute between neighbours over jacaranda tree’s invasive roots
On Sydney’s north shore, a property owner recently took her neighbour to court, claiming that the roots of a large jacaranda tree were cracking her retaining wall. She wanted the tree removed and the tree’s owner to pay the cost of a new wall. (See Bertalli v Hutton  NSWLEC 1060.)
Receiving evidence from an arborist and two engineers, the Land and Environment Court cited three earlier cases as legal precedents. The court ruled that the jacaranda could not be chopped down because “its removal would result in significant loss to the respondents, to the landscape and to the local community”.
To reach this decision the court had to consult three pieces of legislation – the Trees (Disputes Between Neighbours) Act, the Environment Planning and Assessment Act and the NSW Dividing Fences Act 1991.
Subsequently, the property owner had to meet the cost of replacing the wall, as it was old and the tree’s roots were not the only cause of its problems.
Intrusive elm tree ordered to be felled
In contrast to the above cases, an old 25-metre elm tree was ordered to be chopped down in another recent matter before the Land and Environment Court.
After evidence was given by two engineers, an arborist and a landscape architect, it was found that the tree’s roots were damaging a neighbour’s stormwater pipes and veranda. (See Hale v McAlpin  NSWLEC 1176.)
Helpful resources on tree disputes
Tree disputes are often complex and can become costly and heated affairs. Attempting to resolve the dispute amicably before it ends up in court is always a good starting point. However, before you begin negotiations, it is important to know your rights under the law.
The State Library offers broad outlines of the laws governing trees, along with case studies centred around neighbour disputes. Coupled with the Trees (Disputes Between Neighbours) Act, these are valuable resources for anyone involved in a tree dispute. (See Neighbours and the Law: Trees and Plants, State Library of NSW.)
Because all tree disputes are different, it is well worth getting expert legal advice to find out exactly where you stand before taking any action, whether that be negotiating with neighbours, removing trees or clearing land.