The law. Please note,  you can only apply to prune a neighbour’s tree. 2] [2007] NSWLEC 513, Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108, Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. In June 2007 during a violent storm on the NSW Central Coast that ran the ore carrier, the Pasha Bulker, aground onto a Newcastle beach, not far away Mr Leischke’s 80-year-old grey ironbark tree was blown over onto his neighbour’s, Mrs Robson’s, home. Conclusion. “This is not an inner urban environment where views are inherently more restricted. rise to a height of at least 2.5 metres above existing ground level (section 14A(1)). The Court ordered that the tree be removed, the wall be repaired as per the engineer’s estimate (to a maximum of $4500) and a television aerial (also damaged by the tree) be replaced, all at Anderson’s expense. Always remember - the situation is more likely to be resolved if you approach it fully informed and ready to negotiate. the obstruction is so severe or of such a nature that the applicant’s need to remedy the situation outweighs the undesirability of interfering with the trees (section 14E). Neighbours and the law by Nadine Behan. At Court, aspects of the hedge and the dwelling as well as the sunlight, were examined. This obstruction was considered severe. If the neighbour’s tree existed before the applicant built the home and the applicant could have located the home elsewhere on the property or constructed it in such a way as to avoid future damage or risk of injury from the tree then the applicant may well have to contribute to the costs of the tree work or repairs. Bin collections, parking permits, rates, development applications and reporting issues, Vision, planning, projects and consultation, Parks, pools, libraries, gyms, community centres, gardens and customer service centres, Hire a sports facility, rehearsal space, hall or meeting room, Support and funding, programs and initiatives, Lord mayor and councillors, council and committee meetings, Sydney DCP 2012: Tree management controls, Exemptions for pruning and removing trees, Check the Land and Environment Court’s website. If your neighbour's tree is diseased or damaged and in danger of falling and you have not been able to reach an agreement with your neighbour, you are not legally entitled to take action yourself if the tree is on your neighbour's property. 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 [2007] NSWLEC 128, Black v Johnson [No. It was doing zero damage to their property as it was a vacant lot. Part 2A does not apply to single trees obstructing sunlight to a window of their dwelling or a view from their dwelling. The common law position prior the Trees (Disputes between Neighbours) Act 2006 . Assess the extent of the impact the obstruction has on the view. neighbours. You can trim branches or roots that cross into your property from a neighbour’s property or a public road. In the case of the other neighbour, both the obstruction to sunlight and to views was considered severe. For trees that cause damage, subsection 9(1) of the Trees Act gives the Court power to make such orders ‘as it thinks fit’ to remedy the damage. Under the Biosecurity Act, all plants are assessable for their biosecurity risk. Under the Trees (Disputes Between Neighbours) Act 2006 (NSW), you can apply to the Land and Environment Court for an order to “remedy, restrain or prevent damage to property on the land, or prevent injury to any person” relating to a tree in a neighbouring residential area. The person applying for the Part 2 order must give 21 days notice of the application (including the terms of the order sought) to the owner of the land where the tree is located and to any relevant authority that may become involved in the proceedings and any other person that may be affected by the order. Reports from an arborist, engineer and a structural engineer were provided by the parties and the Court made a site visit. 2] [2007] NSWLEC 513 and Moroney v John [2008] NSWLEC 32 helps the Court decide who should pay for the tree work or repairs. Find out more. If the tree is unstable or unsafe, then you might have a fighting chance. 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. They found that the view from the family/kitchen area would not be of water as it was largely of another neighbour’s vegetation and the sky, and was only accessed from the windows by walking through the area or from a sitting position.Â. Here was an opportunity to have these headaches addressed. Find a range of fact sheets or call the Insurance Hotline on 1300 663 464 or the Credit & Debt Hotline on 1800 007 007. For example, it cannot be to a garden (. pay for installation of a root control barrier. An order to shift the loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just’. The overall aim, wherever possible, is to conserve vegetation, especially in … The court held that instead of having views of a broad landscape, including sky and distant trees, Ms Ingham now had only a narrow view down to the rear of her property. For disputes that do not fall within the Court’s jurisdiction under the Trees Act, for example where the offending tree is on a property that is not technically an ‘adjoining’ property, an action in the Supreme Court for nuisance would be required. Several times, Bob had asked his neighbour, Tom, to prune the tree. The tree and indeed the retaining wall had been there long before Mr Leischke bought the property and although old, the tree appeared extremely robust and healthy until the fatal storm.Â. 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. We will also notify your neighbour of your application and they … When it rained he had to fight the canopy of wet leaves to reach his back door. When the Act was before Parliament, the then Attorney General noted that Sitting views are more difficult to protect. The expectation to retain side and sitting views is often unrealistic. For example, where the neighbour’s tree has damaged the applicant’s home or risks injuring people around the home, the Tree Dispute Principle from the case of Black v Johnson [No. If you and a neighbour are locked in a dispute over a tree, mediation is a practical alternative to legal action. pruning the trees and maintaining them at a certain height, width or shape, removing the trees and replacing them with trees of a different species, authorising entry to the land to carry out the orders, the applicant has made a reasonable effort to reach agreement with the owner of the land where the tree is located, the applicant has given the proper notice (unless it has been waived by the Court). In NSW the law in relation to tree disputes between neighbours changed with the commencement of the Trees (Disputes between Neighbours) Act 2006. However, as the hedge grew they lost winter sun to these areas where they spent most of their time. All trees of a certain size are protected in the City of Sydney local area. Since 1 July 2017 the Biosecurity Act 2015 (NSW) and Biosecurity Regulation 2017 (NSW) have replaced the Noxious Weeds Act 1993. If we approve your application, all pruning must be done on your property – the permit does not give you or your contractor permission to enter your neighbour’s place. Trees can be seen as competing for space, water and sunlight, and can sometimes be responsible for inconvenience and damage. In the case of one neighbour, the obstruction to sunlight was not considered severe but the obstruction to the views was. 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. Tree disputes generally occur between neighbours. So Bob did some investigating. In some instances, the tree may be obstructing a neighbour’s view. Although you don’t need your neighbour’s permission, you may want to tell them of your intentions beforehand as a courtesy. If you have concerns about a tree located on council land, contact us. Unlike other cases involving Bunya pines, where the risk of injury was not considered likely, the Court here ordered that each year the neighbours, Mr and Mrs Vella, must pay for a thorough inspection of the tree by an arborist and the removal of cones before they reach a dangerous size. Check the Land and Environment Court’s website before you consider making an application. Consider from which part of the property the views are obtained. Protection of views across side boundaries is more difficult than those from front or rear boundaries. Luckily no one was hurt. the part of the dwelling from which the view or sunlight is obstructed (section 14F). If you have a problem with your neighbour’s weeds, talk to them about it to try to resolve the matter. 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 applicant’s (sections 7 and 14B). Section on Mediation and Community Justice Centres contributed by Gina Vizza, NSW Attorney General’s Department. Orders under Part 2A to remedy, restrain or prevent the obstruction can require action such as: An order for compensation for the obstruction, however, is not available (section 14D). The purpose of this booklet is to outline the law relating to tree problems between private neighbours and to suggest … The Biosecurity Act 2015 applies to all NSW land and waters and sets out a general duty of any person who deals with any plant that poses a biosecurity risk, to ensure that risk is prevented, eliminated or minimized, so far as is reasonably practicable (Parts 1 and 2 and section 22). They felt the Tonolis should have realised the hedge would grow this high before they bought next door. Bob was fed up with the overhanging branches of his neighbour’s tree. The neighbour one day had a company come in an chop down the tree and remove it over the next day while we were at work. Failure to comply with an order can result in further proceedings and a fine of up to $110,000 (Trees Act, section 15). Part 2 applies to trees in areas zoned as: It does not apply to trees on council land (section 4). What you can legally do yourself If you have a neighbour’s tree hanging over your land, you can: exercise the common law right of abatement—your right to remove overhanging branches and roots to your boundary line decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. Mr and Mrs Tonoli at St Ives wanted the neighbours’ Photinia hedge pruned so they could enjoy the winter sun again. Although the evidence can sometimes be technical, parties often represent themselves in Trees Act cases. As for the tree branches, the Court found no evidence of a likely risk of injury. The Court will generally need expert medical evidence provided according to the, The damage must not be minor or insignificant, for example, a negligible displacement of a fence or a badly secured vent pipe being knocked over (, The damage must be directly caused by the tree. Also determine whether the views are from a sitting or standing position. Under section 14E, to make an order, the Court must first be satisfied that: As the Act does not define ‘a reasonable effort to reach agreement’, the Court would consider the circumstances of each case. In October, Mrs Robson made an application under the Trees Act to the Land and Environment Court for compensation for the damage caused by the tree. Mr Leischke and his insurer AAMI denied any liability for the damage. 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