A recent increase in clients contacting us regarding issues with trees on neighbouring land has prompted us to provide the following information.
You may have suffered damage as a result of fallen branches, have issues with blocked guttering from fallen leaves or your view is being obstructed by your neighbour's plants - read on to find out what options are available to you.
There is legislation in place in NSW, regarding issues outlined above, called the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Tree Disputes Act). The Tree Disputes Act allows you to make an application to the Land and Environment Court (the L&E Court) for an order to remedy, restrain or prevent damage to your property as a consequence of your neighbour’s tree. Such orders could include that your neighbour prune or remove the tree, that they bear the costs associated with this and potentially pay compensation for damage to your property.
Before you Apply
A pre-requisite for making an application is that you must be the owner of the land and that you have made a reasonable effort to reach agreement with the owner of your neighbour’s land.
Contacting your neighbour to discuss the issue and trying to come to a resolution is a good starting point. They may be willing to prune the offending tree or assist with clearing your gutters as a compromise. Recording any such interactions in writing will allow you to prove to the L&E Court (if you later bring proceedings) that a reasonable effort to resolve the dispute has been made.
You should also contact your local council and discuss the issue with them to see if there are any local laws or planning rules in place governing the pruning of trees etc, or if there is any assistance they may be able to provide you.
Tree Dispute Principles
The L&E Court has considered disputes in previous cases and has set out a number of principles which may apply to your situation. Some of those are outlined below:
In the case of Fang v Li [2017] NSWLEC 1503, the L&E Court provided a non-exhaustive list of investigations required where you seek to assert structural damage has been caused by tree roots on neighbouring property, these include:
• Identification of the tree to which roots belong;
• Information on the building’s history and construction methods;
• The age, depth and construction type of the footings;
• Identifying the part of the building or structure that has moved;
• Knowledge of where the building is still actively moving and in which directions; and
• Downpipes and other pipes near the building.
It is likely an engineer will need to be retained to carry out some, if not all, of the above investigations.
In the case of Barker v Kyriakides [2007] NSWLEC 292, the L&E Court outlined the following principle:
“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”
When you need assistance
If you are not comfortable contacting your neighbour, you could speak with the NSW Community Justice Centres and enquire if they can provide assistance. Alternately, instructing one of our lawyers to reach out on your behalf could be an option.
If you have already attempted to resolve this issue with your neighbour and an agreement is not possible, your next steps could include the following:
• Scheduling a mediation with the
Community Justice Centre – they can be contacted on 1800 990 777;
• Engaging
our services to write to your neighbour on your behalf regarding the issue and potential resolution; or
• Applying to
L&E Court for an order regarding the tree(s).
With any tree dispute between neighbours, we recommend making all possible attempts to resolve the issue before commencing proceedings. Legal proceedings can involve costs which far outweigh those associated with rectifying the issue and, with the L&E Court being a ‘no cost’ jurisdiction, you will probably have to pay your own legal costs of any application you make.
More information can be found on the L&E Court website
here and on the Community Justice Centres
here.
There are other avenues available, such as an act in nuisance or trespass, which could offer a more appropriate remedy depending on your circumstances and the issues you face.
How we can help?
If you would like tailored advice relevant to your situation, please click here to contact a member of our team who would be happy to assist.
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