Tree Disputes

02 Oct Tree Disputes

The Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Act’) was introduced in 2006.The Hansard Second Reading Speech describes its purpose as to provide a simple, inexpensive, and accessible process to resolve disputes between neighbours regarding trees. Part 2 of the Act provides for trees that cause, or are likely to cause damage, and Part 2A provides for hedges that obstruct sunlight or views.

Under section 7 and 14A respectively, the Act gives the Land and Environment Court jurisdiction to hear disputes relating to damage to property or injury to any person as a consequence of a tree, or where trees in groups of 2 or more are planted to form a hedge that rises to a height of at least 2.5 metres and obstruct sunlight or views.

Sections 10 and 14E of the Act provide that a Court must not make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the tree and has given the 21 days’ notice. The Court cannot make an order under Part 2 unless it is satisfied that the tree has caused, is causing, or is likely to cause damage to the applicant’s property or to any person. Similarly, the Court cannot make an order under Part 2A unless it is satisfied that the trees concerned are a hedge, severely obstructing sunlight to a window or severely obstructing a view, and the severity and nature of the obstruction outweighs any other matter that suggests the undesirability of disturbing or interfering with the trees.

Section 12 provides that before determining an application under Part 2, the Court must consider matters such as:

• The location of the tree concerned in relation to the boundary of the land;
• The impact that pruning would have on the tree;
• Whether the tree has any historical, cultural, social or scientific value;
• Any contribution of the tree to the local ecosystem and biodiversity; and
• Any impact the tree has on soil stability, water table or other natural features of the land or locality.

Section 14F provides that the Court must consider matters such as the following before determining an application under Part 2A:

• Whether the trees existed before the dwelling (or window);
• Whether the trees have grown to a height of 2.5 metres or more since the applicant purchased or occupied the dwelling;
• Any steps taken by the applicant or the owner of the land where the trees are located, to prevent or rectify the obstruction;
• The amount and number of hours per day, of any sunlight that is lost from the obstruction throughout the year and time of the year during which the sunlight is lost; and
• The nature and extent of any view affected by the obstruction and the nature and extent of the remaining view.

There is no definition of a hedge in the Act. A number of cases have considered what constitutes a hedge. The Court in Wisdom v Payn [2011] NSWLEC 1012 said:

“We are satisfied the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived to be a hedge”.

It was also held in the case of North & Anor v Cortis & Anor [2011] NSWLEC 1339 that the mere fact that the canopy of trees may be interlocking does not of its own merit establish the existence of a hedge.

The case of Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150 suggests that no relief is available if the trees were there when the property was purchased.

The Act does not provide for whether the trees need to be planted at the same time, or a similar time, so as to constitute a hedge. However, in the case of Catlin v King & Anor [2016] NSWLEC 1603, Commissioner Fakes opined that any one ‘hedge’ must be planted in a single event, and if the spacing, species choice and range of planting dates give the impression of an informal garden, then the trees do not constitute a hedge.

Landowners seeking to utilise the Act to restore or create views interrupted by trees need to establish that the trees are a hedge. Without that, the Land and Environment Court has no jurisdiction to make an order. It is interesting to see the novel arguments used to support the proposition that any tree blocking a view is a part of a hedge in order to give the Court the jurisdiction to make an order.

If you require any advice, or would like any further information regarding the above, please contact Ian Smith (ismith@harrisco.com.au; (02) 9261 8533).