Tree disputes among neighbours – know your rights
There is a little-known piece of legislation in NSW called the Trees (Disputes Between Neighbours) Act 2006, and it has been the subject of several decisions recently in the NSW Land and Environment Court.
In an ideal world, a property owner with concerns about a neighbouring tree, hedge, or stands of plants, would resolve the situation amicably.
But as the name of the Act suggests, too often these issues are the subject of disputes, and some of them will find their way to court.
There have been two recent examples; one at Dural in Sydney's northwest, and another at Forster on the mid-north coast.
Both cases ended the same way – the aggrieved party's application to have neighbouring trees or hedges trimmed or removed was refused.
It is important to note that in general terms, trees on Council land or Crown land, are not covered by this legislation.
There are two main factors the Act seeks to govern – 1) trees that cause or are likely to cause damage or injury; or 2) high hedges that obstruct sunlight or views.
Causing damage or injury
The owner of the land on which the tree is located must be given at least 21 days notice of any application being lodged with the court and the terms of the order sought by the applicant.
Under this Part of the Act, the court will need to be satisfied that the tree 'has caused, is causing, or is likely in the near future to cause damage to the applicant's property'.
The 'near future' is generally regarded to be a period of one year.
In one instance, an applicant tried to argue that tree roots had damaged a sewer main, but the court held the sewer main was the property of Sydney Water and not the landowner, and therefore the Act did not apply.
It is not enough to claim that tree roots are encroaching on your property; it is generally accepted by the courts that for tree stability, roots can occupy soil in neighbouring properties.
High hedges
Again, any aggrieved landowner must provide their neighbours with at least 21 days' notice.
A key test here is what constitutes a hedge – it must consist of two or more trees that are planted so as to form a hedge, and rise to a height of at least 2.5 metres.
In the absence of both these factors, the application will fail.
While the trees in question do not have to be the same species, nor necessarily planted at the same time, the property owner seeking an order will need to provide some evidence that the neighbouring trees were planted so as to form a hedge ("there must be a degree of regularity and arrangement, in a linear fashion").
Assuming this part of the test is satisfied, the neighbouring high hedge has to cause a severe obstruction of sunlight to a window of a dwelling situated on the land; OR any view from a dwelling situated on the land.
The cases show it is not enough for the high hedge to cause shadowing across a swimming pool, an outdoor entertaining area or part of the backyard – it is the 'severe obstruction' of sunlight to a window of the applicant's property that is relevant or the 'severe obstruction' of a view from a dwelling on the applicant's property.
Before any remediation order is made by the court, it must consider the 'severity and nature of the obstruction' against the 'undesirability of disturbing or interfering with the trees' on a neighbouring property.
Where the court is considering making an order, both section 10(1)(a) (for trees causing damage or injury) or section 14E(1)(a) (for high hedges) require the court to be satisfied "that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated".
It demonstrates the importance of trying to maintain neighbourly relations as much as possible, but that approach does not always work.
For further information please contact:
Matthew Cole, Partner
Phone: +61 2 9777 8371
Email: mxc@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
