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Discover what you can do if a neighbour’s tree damages your property or overhangs your garden

By Kris Sun.

Neighbour disputes over trees, be they in relation to overhanging branches or potential property damage, are not uncommon in NSW. But with several laws on cutting back neighbours’ trees in place, your situation may not be as easily rectified as calling in an arborist. In fact, this is a matter generally regulated by common law under the ‘branch’ of private nuisance.

In NSW, private nuisance matters involving trees are also covered under the Trees (Disputes Between Neighbours) Act 2006 (NSW). This Act regulates all things to do with neighbours’ trees and their removal, permitting you to cut down branches or entire trunks in specific circumstances.

Below, we share some legal advice on neighbour disputes involving trees with reference to relevant legislation and processes for resolving the situation peacefully.

Can you trim or remove your neighbour’s tree?

Yes, you can trim or remove your neighbour’s tree in certain circumstances, but you may be required to obtain permission from the owner and/or the local council before doing so.

If informal discussions to resolve the matter have proved futile, there are two courses of action you can take to rectify neighbour disputes over trees.

Mediation for tree disputes

To initiate a claim in nuisance is expensive for many as the proceeding of this type is commenced in the Supreme Court of NSW. Therefore, people are often encouraged to go through mediation before filing a claim in court.

A mediator will not take sides between you and your neighbour, or make a final decision for you. Rather, this independent third party will facilitate constructive discussion to ensure each party has an opportunity to share their opinion and help them to reach a fair agreement wherever possible.

Lodging an application to the Land and Environment Court for an Order

If mediation is unsuccessful, you can bring your matter to Court. Under the Trees (Disputes Between Neighbours) Act, an owner of the land who suffers damage to the property (or injury to any person) on the land as a consequence of a tree (that is situated on adjoining land) is entitled to make an application to the Land and Environment Court for an order to restrain, remedy or prevent such damage or injury.

Other disputes that can be addressed by the Land and Environment Court include those concerning:

  • Overhanging branches
  • Roots reaching a neighbour’s property
  • High hedges obstructing views or sunlight

However, before such an order is to be made, the following matters are to be satisfied by the Court:

  • that the applicant for the matter has made a reasonable effort in reaching an agreement with the respondent in relation to the tree in dispute; and
  • a 21 days’ notice of the lodgement of the application is to be given to the respondent (unless it is waived by the Court); and
  • the tree concerned has caused, is causing or is likely to cause damage (or injury) to the applicant’s property (or to any person).

In determining such an application, the Court is to consider various matters including:

  • the location of the tree in dispute;
  • whether interference with the tree would require consent from environmental authorities or other government authorities such as the Heritage Council;
  • any impact of the maintenance of the tree would have on the tree;
  • any contribution of the tree to landscaping, garden, heritage value, privacy, and the local ecosystem and biodiversity,
  • any protection the tree would be able to provide such as from wind, sun, noise, smoke or smells etc;
  • whether the tree has any cultural, historical or social or scientific value;
  • any impact of the tree on soil stability or other natural features of the land concerned;
  • in the case the applicant alleges the tree concerned has caused, is causing or is likely to cause damage to the applicant’s property: whether there is anything else other than the tree has contributed, or is contributing to such damages alleged, including any act or omission by the applicant; whether the applicant or the respondent has taken any steps to prevent or rectify such damage;
  • in the case the applicant alleges the tree concerned is likely to cause injury to any person: whether there is anything else other than the tree has contributed or is contributing to such likelihood of injury, including any act or omission by the applicant; whether the applicant or the respondent has taken any steps to prevent such injury;
  • any other matters that the Court thinks they are relevant in the circumstances.

The Dividing Fences Act 1991 (NSW)

In some cases, however, the trees in dispute might be covered under the Dividing Fence Act 1991 (NSW). This occurs when the trees concerned can be classified as “sufficient dividing fence” in the circumstances. In such cases, the matter could then be dealt with by the NSW Civil & Administrative Tribunal.

Who pays for tree pruning in a neighbour dispute?

If your neighbour’s tree is overhanging your property, it is usually your responsibility to pay for its pruning – regardless of whether there is a tree removal permit.

However, the Court can choose to order your neighbour to pay this fee if deemed reasonable given the circumstances. For example, if this neighbour has delayed proceedings or failed to present requested documents.

Trusted legal advice for neighbour disputes over trees

Legal issues and court proceedings are often complex, including when it comes to the law on cutting back neighbours’ trees. That’s why it is important that you seek legal advice early if you are not sure of your obligations or rights.

At O’Hearn Lawyers, we have an experienced litigation team to assist you every step of the way to resolving your neighbour dispute. Contact us today to get started.

 

The material included in this website is produced by O’Hearn Lawyers Pty Limited.  It is designed and intended for general information purposes only.  The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.  You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. 

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