… Notice must also be given to any relevant authority and any person that may be affected by the order sought. Under NSW law, the court can make orders to “remedy, restrain or prevent damage to a property” (or injury to a person) caused by a tree on adjoining land. In most instances, proceedings are commenced because the tree or trees in question are causing damage to a neighbouring property. This obstruction was considered severe. Or are you concerned with issues relating to planning or the environment? Similar to the notice requirements in Part 2, under Part 2A the applicant must give at least 21 days notice of the application (including the terms of the order sought) to the owner of the land where the tree is located. Having problems with neighbours over fences or trees? Find a range of fact sheets or call the Insurance Hotline on 1300 663 464 or the Credit & Debt Hotline on 1800 007 007. Contact your local Land Services Office. Reluctantly, in 2010, Mr TonoliÂ applied to the Land and Environment Court for an order under Part 2AÂ of the Trees (Disputes Between Neighbours) Act 2006 for the hedge to beÂ pruned to allow sunlight back through the windows. But the Rappos refused. If the tree is found to be diseased or unstable, it must be removed. A Part 2A order is not available where a single tree is causing the obstruction. The Courtâs Commissioner hearing the case, together with the parties and any experts involved in the case, attend the applicantâs property and the tree (or hedge) to thoroughly inspect the problem and better understand the evidence. Trees are a frequent source of disputes between neighbours. The Act gives local councils power over the control and management of weeds (section 370). In general, for this to be given proper weight by the Court, any expert providing a report or appearing as a witness must acknowledge reading and agree to be bound by the Courtâs Expert Witness Code of Conduct (Spillane v Burgess  NSWLEC 1289). Also, for the Court to issue an order against a party concerning a tree on their land, the tree must be located wholly or mainly on their land, that is, where at least fifty per cent of the treeâs trunk enters the ground (Trees Act, section 4(3))(Brown v Weaver  NSWLEC 738; Drolz v Sinclair  NSWLEC 34; Inbari v Rankin  NSWLEC 1236). Court orders made under the Trees Act may, under certain conditions, be binding on a subsequent owner (sections 16 and 16A). Community Justice Centres can help you to resolve your dispute quickly and for free using mediation. Under the Biosecurity Act, all plants are assessable for their biosecurity risk. If appropriate, the Court may direct that the notice be given in a certain way or to a certain person, that the notice requirement be waived or that the notice period be changed (section 8). From all the evidence the Court was satisfied that the growth of the tree and its root system were the main, if not the sole cause of the cracking in the wall and should be removed. If appropriate in the circumstances, the Court has the power to waive or to change the notice requirements (section 14C). If the tree is unstable or unsafe, then you might have a fighting chance. Check the RFS website and contact the local Fire Brigade Caption or Fire Control Officer. In October, Mrs Robson made an application under the Trees Act to the LandÂ and Environment Court for compensation for the damage caused by the tree.Â Mr Leischke and his insurer AAMI denied any liability for the damage. Disputes between neighbours need to be resolved between the parties. CPD. Although the evidence can sometimes be technical, parties often represent themselves in Trees Act cases. This doesnât mean the trees must form neatÂ lines, for example, they can form a triangular shape (, Concerning a severe obstruction of sunlight, the obstruction of sunlightÂ must be to a window. Ms Liu had approached the council to apply for a permit, saying the trees sparked during storms and were dropping leaves into her pool. Hunters Hill Council v Liu  NSWLEC 108. Most of the time a council will want to keep a tree if possible, so if it is just to do with sunlight, then you don’t really have much of a case. You can also contact a Community Justice Centre for mediation with your neighbour about your concerns. In 2018 Ms Liu pleaded guilty to the offence and the NSW Land and Environment Court, after taking various factors into account, fined her $48,000. Importantly, under section 10, the Court cannot make an order under Part 2 unless it is satisfied that: If these conditions are met, the Court must then consider a number of other matters contained in section 12. Where the branch or root of a tree comes onto a neighbour's land, a nuisance situation exists. For example, it cannot be to a garden (. The Court ordered the bamboo beÂ pruned and maintained at a point equal to the ridge-line of the RettenmaiersâÂ roof, at their expense. The application for compensation was dismissed. In rural areas, the threat of bushfires is also taken into account.Â Below is an outline of the laws most relevant to neighbours. All trees of a certain size are protected in the City of Sydney local area. The law about neighbours' rights and responsibilities for trees is covered by the common law of nuisance. The Tree Laws give next door neighbours many more rights than the common law gives. This is contained in Schedule 7 of the Uniform Civil Procedure Rules 2005. In Hough v Rettenmaier the neighbourâs eight metre bamboo hedge wasÂ obscuring the applicantsâ view of Port Hacking from their upper and lowerÂ balconies and family/kitchen area. You can only apply to the court if you've already made a reasonable attempt to resolve the situation. The law. Parties often use experts such as arborists, engineers, architects or builders in their evidence. The Tonolis then tried the Community Justice Centre but the RapposÂ wouldnât agree to take part in mediation. They immediately contacted their neighbour, Ms Anderson, about the crack as they believed it was caused by the Kaffir Plum tree on her property. For example, where an applicant seeks orders concerning damage from a tree that is located several houses away, it is unlikely the Court would have the power to make the orders. Published by the Legal Information Access Centre (LIAC), State Library of New South Wales. The court, in deciding what order or orders âit thinks fitâ to remedy theÂ damage, took guidance from the common law torts of trespass, nuisanceÂ and negligence that applied before the Trees Act. This chapter was updated in October 2019 to reflect changes to the management ofÂ biosecurity risks, including weeds, pests and plant and animal diseases. Please note, this information and the relevant law (Tree (Disputes Between Neighbours) Act 2006) only applies to trees on private property. In addition, it can result in the local council carrying out the work required in the order and recovering the costs together with an administrative fee. They can provide privacy and enhance amenity, but they can also annoy neighbours and damage their property. The Court also found that there was no evidence that the tree roots would in the near future, that is, in the next 12 months, cause damage to the underground services. neighbours. Applying the Tenacity Principles, the Court assessed the views and theÂ severity of the obstruction. In NSW the law in relation to tree disputes between neighbours changed with the commencement of the Trees (Disputes between Neighbours) Act 2006. The poor management of greenery can lead to disputes and hostile interactions between neighbours. InÂ In cases concerning severe obstruction of views the Court has applied relevantÂ planning principles from the case of Tenacity Consulting v WarringahÂ  NSWLEC 140.Â Using these Tenacity Principles, the steps in assessing the obstruction (from cases such as Hough v Rettenmaier  NSWLEC 1354Â and Ball v Bahramali  NSWLEC 1334) Â are:Â. It can also be found on the Land and Environment Courtâs website. You can trim branches or roots that cross into your property from a neighbour’s property or a public road. Another Tree Dispute Principle concerns the normal mess of leaf litter and debris associated with trees. The court went on to decide that the hedges were not considered to beÂ of historic or cultural value, have no great public amenity, do not impactÂ on soil stability and donât seem necessary for privacy. In NSW the law in relation to tree disputes between neighbours changed with the commencement of the Trees (Disputes between Neighbours) Act 2006. The Court is able to waive this requirement if it thinks that it isappropriate in the circumstances (18). any steps taken by the applicant or the owner of the land that the tree is on, to prevent or rectify the damage or prevent the injury. The court ordered the hedge be pruned to a height of 4.2 metres to allowÂ regrowth up to 4.5 metres and be maintained at the height of 4.5 metres,Â at the Rapposâ expense. A helpful guide for Litigants in Person in the Land and Environment Court can be found on the Courtâs website. Always remember - the situation is more likely to be resolved if you approach it fully informed and ready to negotiate. The new Act provides a comprehensive framework for identifying, preventing and managing biosecurity risks, including weeds, pests and plant and animal diseases. For trees that cause damage, subsection 9(1)Â of the Trees Act gives the Court power to make such orders âas it thinks fitâÂ to remedy the damage. Although you don’t need your neighbour’s permission, you may want to tell them of your intentions beforehand as a courtesy. Environmental Planning and Assessment Act 1979, Trees (Disputes Between Neighbours) Act 2006, Trees (Disputes Between Neighbours) Regulation 2019, Uniform Civil Procedure Rules 2005 - Expert Witness Code of conduct in Schedule 7. If you are a landowner wishing to clear native vegetation using management burning you may need a permit under the Rural Fires Act 1997 (NSW). Under Part 2A of the Trees Act, a landowner or occupier can apply 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 or a severe obstruction of any view from a dwelling, if the obstruction is from trees on adjoining land (section 14B). Bob decided that before things got nasty, he would try to have the matter resolved amicably. the obstruction is so severe or of such a nature that the applicantâs need to remedy the situation outweighs the undesirability of interfering with the trees (section 14E). The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. When there is no tree preservation order If a neighbour’s trees are overhanging your fence or if the roots are intruding onto your property in such a way that there is an ongoing, unreasonable interference with your enjoyment of your property, then the law says this is a “nuisance”. Trees (Disputes between Neighbours) Regulation 2019, Resources on neighbours, housing and the environment, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, 10/50 Vegetation Clearance Code of Practice, Litigants in Person in the Land and Environment Court, P Baer Investments Pty Ltd v University of NSW  NSWLEC 128, Black v Johnson [No. The usual practice of the Court in any action under the Trees Act is to make a site visit. Water views are valued more highly thanÂ non-water views. Section on Mediation and Community Justice Centres contributed by Gina Vizza, NSW Attorney General’s Department. Here was an opportunity to have these headaches addressed. If you believe that your neighbour’s tree is unsafe, you should ask your neighbour to have an arborist assess the tree’s health. Section on major project approvals (p 48) by Kirsty Ruddock, Environmental Defender’s Office NSW. They also made a timeline and an agreement about sharing costs. Part 2 â dealing with orders relating to damage to property and injury to people. Find out more. The overall aim, wherever possible, is to conserve vegetation, especiallyÂ in the urban environment. When a tree falls in a storm, the owner of the tree is not automatically liableÂ for the damage it causes. In Ghazal v VellaÂ large cones dropping from a neighbourâs Bunya pine were creating problems for the Ghazal household in Blacktown. This professional will assess the cultivation and management of the tree, shrub or plant, and choose whether to cut it back or remove it. Whilst the Trees Act has simplified the process for owners to resolve tree disputes with their neighbours, the cheapest and quickest method of resolving such disputes is still for neighbours to agree between themselves and approach Council for … When they purchased their homeÂ in 2006 they had plenty of sun through the north facing windows of theirÂ living room, dining room and kitchen. In most areas of NSW, before you prune or remove a tree you must apply for permission from your local council. You can only trim up to the property boundary. The Act and regulationÂ defines âtreeâ as including bamboo, tiger vines/giant clumping grass and vines as well as any woody perennial plant (shrub) (Lentfer v Hopkins  NSWLEC 1452) or plant that resembles a tree (Trees Act, section 3 and Trees (Disputes between Neighbours) Regulation 2019, reg 4). For the Court to have jurisdiction, or power, to make any order under the Trees Act, the offending tree must be on land adjoining the applicantâs (sections 7 and 14B). The Court dismissed the application to remove the trees and ordered that the two sections of the Deansâ driveway near the trees be removed and replaced properly without damaging major tree roots and that the Ellsworths contribute 40 per cent of these costs. In Barker v Kyriakides  NSWLEC 292 the Court said that with the aesthetic and environmental benefits of having trees, especially in urban environments, we should accept the responsibility to do a reasonable amount of regular maintenance, like clearing our gutters and house surrounds, of leaf litter and debris (See also Robson v Leischke  NSWLEC 152; Moroney v John  NSWLEC 32; Lowe v Cottrell  NSWLEC 1003). In February 2016 Ms Yueling Liu engaged a tree lopper to cut down two of her neighbourâs trees in the leafy Sydney suburb of Hunters Hill. In the caseÂ of one neighbour, the obstruction to sunlight was not considered severe butÂ the obstruction to the views was. As the cones would fall without warning, the Ghazals had become increasingly worried that someone would be hurt and so applied to the Court for orders that the tree be de-coned. The owner of land on which a tree is growing is responsible for its safety and maintenance. The common law position prior the Trees (Disputes between Neighbours) Act 2006 . For helpful information about insurance cover when a tree falls, see theÂ Financial Rights Legal Centreâs factsheetÂ When a tree falls in a storm, who pays for its removal? If mediation fails, property owners can apply to the NSW Land and Environment Court to resolve the matter. With the help of the trained and skilful mediator, and with renewed goodwill as neighbours, they made a list of problems and actions that they could agree on to restore peace to their lives. Permission may be in the form of a permit or a development approval. Under Australian common law there are three courses of action against the owner of land on which a tree that caused the damage grew: trespass, nuisance and negligence. The draft drew on the work undertaken by the NSW Law Reform Commission and considered in Report 88 but took a different approach to a number of the Commission’s recommendations. The Court found thatÂ the upper balcony, being adjacent to the bedrooms, was not primary livingÂ space but the lower balcony was the main private outdoor entertaining spaceÂ adjacent to the living areas and from this balcony the bamboo almost entirelyÂ obliterated the water view. If the offending tree belongs to your neighbour, many councils require your neighbourâs consent before any work can be undertaken. In recognition, the NSW parliament enacted specific laws to deal with these and similar issues: Trees (Disputes Between Neighbours) Act 2003 (Trees Act); and the Dividing Fences Act 1991 (Fences Act) These Acts give the Land and Environment Court special powers to make orders regarding trees and fences. 2]  NSWLEC 513 and Moroney v John  NSWLEC 32 helps the Court decide who should pay for the tree work or repairs. As a result, in most parts of NSW, you have to obtain consent from a neighbour before you can cut their overhanging trees. Under NSW laws, councils do not have the authority to order a resident to prune or remove a tree, if it's impacting on a neighbouring property. ImpactÂ on the views from living areas is more significant than from bedrooms orÂ service areas. to restrain or prevent damage or further damageÂ to property, requiring an application for consent be made to a body such as the Heritage Council, authorising the applicant to take specific action to remedy, restrain or prevent damage or injury, authorising entry onto land for the purpose of carrying out an order, for the payment of costs associated with the carrying out of an order, remove a tree, grind or poison its stump and remove offending roots, pay for roofing work and replacement of tiles damaged by fallen tree limbs, pay for repair/replacement costs for sewer pipes, cracked walls or paths badly damaged by tree roots. Try to negotiate a solution that satisfies you both. Tree disputes generally occur between neighbours. For disputes that do not fall within the Courtâs jurisdiction underÂ the Trees Act, for example where the offending tree is on a property thatÂ is not technically an âadjoiningâ property, an action in the Supreme CourtÂ for nuisance would be required. Three months on, things are much friendlier: with council approval the tree has been pruned, the noise level is a bit lower, both neighbours attend each otherâs parties, the dividing fence has been repaired and so the dog poo stays on Bobâs side of the fence now: a win/win situation. In 2007 the Tonolis approached their neighbours, Mr and Mrs Rappo aboutÂ pruning the hedge. The overall aim, wherever possible, is to conserve vegetation, especially in … If the property where the tree is located is sold during proceedings under the Trees Act, the Court may require the purchaser be notified and have the opportunity of being added as a party to the proceedings (Haindl v Daisch  NSWLEC 1145). If an agreement can’t be reached, the next step is mediation, organised by a Community Justice Centre or legal action in the Land and Environment Court. 2]  NSWLEC 513, Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723  NSWLEC 1108, Smith & Hannaford v Zhang & Zhou  NSWLEC 29. In NSW it is the Trees (Disputes Between Neighbours) Act 2006, and in Queensland it is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Tree Laws). In several cases the court has emphasised that the usual dropping of leaves, flowers, fruit, seeds or small amounts of deadwood will not ordinarily justify an order to interfere with or remove a tree. Everything revolving around neighbour’s trees is guided and controlled by the Tree Disputes Between Neighbours Act 2006. Go to your page on getting council approval to remove a tree for some good ideas on excuses to remove a tree. They were also worried branches could damage their home. This often leads to disputes, generally involving a person wanting a tree removed or pruned and the neighbour on whose land it stands refusing to do so. The purpose of this booklet is to outline the law relating to tree problems between private neighbours and to suggest … Under Part 2 of the Trees Act, a landowner or occupier can apply to the Court for an order to remedy, restrain or prevent damage to property or injury to any person that is caused or is likely to be caused by a tree on adjoining land (section 7). Part 2A(introduced in 2010) â dealing with orders concerning obstruction of sunlight or views by trees that form a hedge. In rural areas, clearing vegetation on your land may require other approvals, licences or permits. As Mr Leischke had no knowledge of the treeâs problems and did nothing thatÂ contributed to the demise of the tree, the court felt that he wasnât under anyÂ duty to prevent or minimize the risk of any damage to Mrs Robsonâs propertyÂ nor should he be held responsible for the damage that resulted. As their property was a localÂ heritage item they did not want the height of the hedge changed. They include: In deciding cases under Part 2 of the Trees Act, the Land and Environment Court has developed some Tree Dispute Principles. Each time he got out of the car in his driveway he had to duck and dive around the low hanging foliage. The CJC then contacted Tom and asked if he would agree to mediation. In NSW legislation largely regulates the planting, pruning, destruction and removal of trees and plants and also deals with some of the disputes. Learn more about conflicts with neighbors, trees, property, real estate, property lines, damage, and other legal topics at FindLaw's Real Estate section. Now, an application can be made to the Land and Environment Court for orders concerning a neighbourâs tree or trees that cause or are likely to cause harm, or trees that form high hedges obstructing sunlight or views. In 2010 the dispute was taken to the Land and Environment Court. If the impact is severe, assess the reasonableness of the proposal thatÂ is causing the impact. She did not have her neighbourâs consent and did not have a permit from the Hunters Hill Council. Luckily no one was hurt. Sitting views are more difficult to protect.Â The expectation to retain side and sitting views is often unrealistic. My neighbours trees are very large and I am concerned about them falling on my house Council does not have any involvement in neighbouring tree issues. When the Act was before Parliament, the then Attorney General noted that Or with your landlord? In Dean v Ellsworth the applicants, Mr and Mrs Dean, wanted two Eucalypts on their neighboursâ property to be removed because the tree roots were damaging their driveway and could potentially damage the underground services buried beneath. Although no shade diagrams were provided, the CourtÂ accepted Mr Tonoliâs uncontested testimony that he lost sunlight to fourÂ windows between early May and late August each year and found that thisÂ amounted to a severe obstruction. The tree and indeed the retaining wall had beenÂ there long before Mr Leischke bought the property and although old, the treeÂ appeared extremely robust and healthy until the fatal storm.Â. 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