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Neighbours and Trees

The Trees (Disputes Between Neighbours) Act 2006 ("the Act") commenced on 2 February 2007. Under the Act, the Land and Environment Court of NSW is able to make orders to remedy, restrain or prevent damage to property or to prevent injury to a person when a tree situated on adjoining land may cause damage or injury. The Act also empowers the court to order compensation for or rectification of damage caused by a tree. However, the court has no power under the Act to make orders to lop or remove trees that block views.

The Act only applies to trees situated on land zoned "residential" including Crown land but does not apply to land vested in or managed by a council. Trees are defined as including "any woody perennial plant, any plant resembling a tree in form and size and any other plant prescribed by the regulations". Bamboo has been prescribed as a tree.

A person can only make an application about a tree that is situated wholly or principally on land that adjoins land that they own or occupy.

If an adjoining neighbour has made a reasonable effort to resolve a dispute regarding a tree with the owner of the land on which the tree is situated, the neighbour can lodge an application with the court under the Act. The application fee is currently $173 for individuals and $346 for corporations.

After an application is lodged, an informal conference before a Commissioner of the court will take place. The parties can agree to allow the Commissioner to determine the application or failing agreement, to have the court hear the matter. The hearing can take place in a court close to the site of the dispute or at the Land and Environment Court in Sydney.

The court is obliged to consider a range of matters before determining an application. Some of those matters include the location of the tree in relation to the boundary of the land and any premises, whether the tree has any historical, cultural, social or scientific value, any contribution of the tree to the natural landscape and its intrinsic value and impact on soil stability, the water table or other natural features.

The court has wide powers under the Act, including the power to have the tree removed, replaced or maintained, to have some other specific action authorised, to require the payment of compensation, to authorise the entry onto land for the purposes of carrying out an order and to require the payment of costs associated with carrying out an order.

The court can deal with applications very quickly. Within six weeks of the Act commencing, the court had already heard and finally determined three applications. However, a review of some of the early decisions of the court indicates that the court will avoid requiring the removal of trees wherever possible and that it is taking a very cautious approach to awarding compensation for damage.

In Haines v McNally, the roots of a Himalayan Cedar (Cedrus deodara) had grown into part of a pathway laid with pavers next to a house in Killarney Heights owned by Mr and Mrs Haines. The court ordered that some of the roots be pruned and directed that when the path was re-laid it should contain a "humped" section over the relevant area of the tree's root zone. The court ordered that the cost of re-laying the path should be shared equally between the owners of the land on which the tree was situated because Mr and Mrs Haines "were on clear notice of the damage to the path" at the time they had purchased their property.

The court declined to take any action in relation to a claim by Mr and Mrs Haines that part of the guttering to their house was being blocked by needles falling from the cedar tree onto the roof. Although the court found that there was a continuing likelihood of needle drop from the tree it held that "there is a degree of normal 'neighbourly housekeeping' required when living in a settled and relatively green urban environment" and this included accepting the consequences of the tree's needles blocking gutters.

In Adamski v Betty the court considered the impact of mature specimens of a Silky Oak (Grevillia robusta) and a Bunya Pine (Araucaria bidwillii) on an adjoining property at Wahroonga. The court declined to make an order that branches of the Silky Oak that were overhanging the applicant's property be trimmed. However, the court's rulings in relation to the Bunya Pine are of more interest.

Despite finding that the cones of the pine tree - each being up to a number of kilograms in weight, falling and then bouncing for more than 12 metres into the applicant's property and that persons in the rear yard of the property were at risk of injury, the court determined that the planned removal of cones from the tree was preferable to its destruction. The court ordered that in a relevant three month period during each year, the tree owner should retain differently qualified arborists to relevantly supervise and control the removal of cones having a dimension in excess of 100mm.

In the same case the court considered a claim for compensation for roof repairs caused by the falling pine cones. The court ordered that compensation for repairs to a maximum of $2,800 be allowed but admitted that it had reached its conclusion on "a very narrow basis" and pointed out that its decision was not one relating to compensation "in general terms for past damage".

It is clear however, that the Commissioners of the court are looking for some judicial guidance regarding the extent of their powers to award compensation.

In the recent decision of Ridley v Gyler, the court found that branches falling from a neighbouring tree had caused damage to the applicant's roof. The court was prepared to allow compensation of $380 for ridge capping works but not for the applicant's own exertions in replacing tiles each time damage was caused by falling branches. In making that finding, the Commissioners who constituted the court determined that it would not be reasonable to make an order that such compensation be provided in the absence of any judicial authority to the contrary.

For further information regarding this area, please contact Jim Behringer or Ian Smith.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.
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