In New South Wales, trees are considered part of the land, belonging to the owner of the home and owner is responsible for any damages caused by the trees. Disputes between neighbours as to nuisance, ownership and damages caused by the trees are determined by the Trees (Disputes Between Neighbours) Act 2006. This Act applies to trees on any land designated as residential, industrial or business does not extend to trees on public land or trees that are protected by conservation or heritage laws.
What is a tree?
The Act describes trees as any woody perennial plant or any plant resembling a tree in form and size. This includes bamboo, tiger grass/giant clumping grass and any plant that is a vine. The description is interpreted to goes as far as including pretty much any plant that is large enough in size to resemble a tree.
Who Owns the tree?
According to the Act, if a tree trunk is entirely or principally on your property, you are the owner of that tree, regardless of whether it overhangs a neighbouring property.
If your neighbour’s tree extends over to your property, you have the right to prune the tree and remove any branches that extend over the property boundary, but you are responsible for the cost of doing so. However, if you prune or damage any part of the tree on your neighbour’s side of the property boundary you could be liable for property damage.
If a tree trunk is situated on the boundary between two properties, both property owners are considered joint owners of the tree. In this case, neither owner can remove the tree or prune it without the other owner's consent. If one owner wants to remove or prune the tree and the other does not agree, they can apply to the Land and Environment Court for a decision.
Generally, you do not have any rights over a tree that is wholly in the neighbour’s property and not extending over the property boundary. Even if the tree is in good condition, however if the tree is rotten and falls onto your property, they may be liable for the damage, especially if you have warned them about the potential damage to your property.
Trees in Strata Complexes
If the base of a bush, hedge or tree in a Strata Complex is entirely or principally on common property, the Owner’s Corporation is responsible for the management of the tree. Similarly, if any branch is overhanging private property, the person whose property boundary is being burdened by the overhang has the right to prune or remove overhanging branches at their own cost.
What can you do if a tree is causing or may cause damage?
If a tree from a neighbouring property has damaged or is likely to damage property or cause injury to person, the first step is to make reasonable efforts to come to an agreement with your neighbour. If this step is futile, an application to the Land and Environment Court can be made.
The Land and Environment Court can make orders for removal of the whole or part of a tree to prevent imminent damage to property or injury to person. In the making of such orders, the Court can order reparation of any damage that may have already been caused and enforce the owner of the tree to pay the costs for both the removal or pruning of the tree and the damage it has caused or may cause. Additionally, the Court may order the payment of compensation for damages.
If a mature tree is ordered to be removed by the Court, the owners may be ordered to plant a new tree and have the responsibility of maintaining the tree to maturity.
In determining whether a tree is likely to damage property or cause injury to a person they will consider the location of the tree to a property boundary and premises, the impact of pruning on the tree in question, whether the tree has significance to the environment or the heritage of the area as well as any other contributing factors that may have caused, or is likely to cause, damage. The Court will also consider the views of the local Council, the Heritage Council and any potential requirements to meet the Environmental Planning and Assessment Act 1979.
What if the tree is blocking sunlight or a view?
The Act also provides direction in situations where two or more trees, plants or shrubs are planted together to form a hedge and grow to be more than 2.5 metres above ground and severely affect access to sunlight or a view.
Causing severe obstruction of sunlight or a view to their land by a hedge, shrub or trees on the neighbouring land can apply to the Court for orders to remedy the obstruction.
In both situation the Act stipulates that it is mandatory to attempt to come to an amicable solution directly with the owners of the tree causing the obstruction prior to taking any legal action.
If you have any questions or concerns about the ownership or management of trees on your property, it is best to seek legal advice or contact your local council.
How we can help
Please contact Julian Peters or a member from Russell Kennedy's Property and Development team should you require further advice.
If you would like to stay up to date with Alerts, news and Insights from our team, you can subscribe to our mailing list here.