Neighbourhood disputes over tree branches.

I deal with a variety of disputes between neighbours.  These can arise for many reasons including dividing fences or retaining walls in disrepair, encroaching garages, nuisance claims of noise and pollution, use of right of ways, high hedges and overhanging branches.

In this issue, I deal with tree disputes, an issue that arises so often it has its own legislation.  The Trees (Disputes Between Neighbours) Act 2006 (NSW) (Act) empowers the Land and Environment Court to resolve disputes between neighbours about trees and hedges.

The definition of ‘tree’

The term ‘tree’ is defined broadly and includes ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the Regulation’.

Liability does not depend on the fault of the adjoining owner or the foreseeability of damage because there is no duty of care to breach in these circumstances.  The Act removed the prior right of a neighbour to sue in nuisance for tree disputes.

The types of matters that can be adjudicated by the Court include those where:

• tree branches are overhanging, a dead tree requires removal or roots have grown onto a neighbour’s property,
• there is injury to a person as a result of a tree,
• high hedges are blocking sunlight or views from a neighbour’s property.

Dispute resolution

The first step is to attempt agreement with the neighbour because the Court will not make an order unless the applicant has made a reasonable effort to reach agreement prior to taking court action.

If after attempts at resolution the dispute remains, the applicant must give the adjoining landowner, and if appropriate the Council, and any other person likely to be affected by the order, 21 days’ notice of its intention to apply to the Court.

If agreement remains elusive after 21 days the applicant can then seek orders to remedy, restrain or prevent damage to property, or prevent injury to any person from the Court.

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 Are you having problems with your neighbour work?  

Clare Peacock is an experienced construction lawyer working on Sydney’s Northern Beaches. Clare provides practical, cost-effective building approval advice to property owners, builders and strata managers. Services include residential building disputes, body corporate issues and strata building problems.

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