Australia: Damage from neighbouring tree - who pays the cost in NSW?

Last Updated: 26 January 2019
Article by Mark Evans

Recently we were engaged by a homeowner to claim costs from their neighbour arising from a dispute about a tree causing damage to our client's sewerage line. After obtaining several quotes to fix the problem, talks between the neighbours broke down and we were instructed to commence proceedings in the Local Court to seek orders that the roots be trimmed back and the sewerage lines repaired. Ultimately, the court found in our client's favour and ordered that the neighbour pay the reasonable costs of repair.

What can you do when your neighbour's tree drops leaves in your yard or the roots are creeping ominously towards your plumbing?

You can apply to the Land and Environment Court seeking an order to address the problem. However, the Court will not usually make orders compelling your neighbour to do anything until it is satisfied that you have made a reasonable effort to reach agreement with your neighbour first. In our experience this is often unsuccessful but you should at least attempt it. So, write a letter first and seek to discuss the issue in person on site if possible.  Whatever you do, don't fire up the chainsaw or start pruning before you've investigated and if necessary, obtained consent from your local Council.

The Land and Environment Court take a very dim view of people cutting down trees on a fence line or on an adjoining property. Recently, the Court imposed a fine of $83,000 on a property owner on Sydney's lower north shore who arranged to have two offending trees on her neighbour's property cut down.

The Court has wide powers when it comes to enforcement and penalties and in that case the Court also ordered that the two trees be replaced and restored pursuant to a restoration order. These cases are frequently before the Court. 

Professional arborists will usually not start work without evidence of prior approval. We have heard of rogue operators approaching property owners offering to cut down trees at cheap "same day" rates. Property owners should be very wary of these operators because the liability for approving the removal of trees in most cases will remain with you. Ignorance of the law is no excuse.

There's something about these matters in particular that turn friendly neighbours into bitter enemies. In recognition, the NSW parliament enacted specific laws to deal with these and similar issues: Trees (Disputes Between Neighbours) Act 2003 (Trees Act); and the Dividing Fences Act 1991 (Fences Act)

These Acts give the Land and Environment Court special powers to make orders regarding trees and fences.

Land and Environment Court Orders

The types of matters that can be adjudicated by the Land and Environment Court are where:

  1. Tree branches are overhanging;
  2. Injury to a person as a result of a tree is likely;
  3. Roots have grown onto a neighbour's property; or
  4. High hedges are blocking sunlight or views from a neighbour's property.

You can seek an order from the Court to prevent damage to your property or injury to people

An owner of land (this includes the occupier of land) can apply to the Court for an order to remedy or prevent damage to property or to prevent injury to a person as a consequence of a tree next door.

Examples of the orders that the court can make include:

  1. To prune or remove the tree;
  2. To maintain the tree at a specific height/width;
  3. To remove the tree and replace it with a different species;
  4. The payment of costs associated with the removal/pruning of the tree; and
  5. Compensation for damages.

You can seek an order from the Court if sunlight or views are being blocked

You can apply to the Court for an order to remedy or restrain a severe obstruction of sunlight to your windows or any view from your house caused by trees or hedges on your neighbour's land.

Before making the order, the Court must consider a large number of factors, for example:

  1. The location of the trees concerned in relation to the boundary between the properties and the location of your house;
  2. Whether the trees existed prior to your house (or the window);
  3. Whether the trees grew higher than 2.5m during the period that you owned the land;
  4. Whether the trees have any historical, cultural, social or scientific value;
  5. Any contribution of the trees to the local ecosystem and biodiversity;
  6. The impact any pruning would have on the trees, including their shape;
  7. Any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated;
  8. The amount and number of hours per day of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost;
  9. The nature and extent of any view affected by the obstruction and the nature and extent of any remaining view; and
  10. Any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned.

Where a hedge is blocking sunlight or views the Court can make orders to:

  1. Prune or remove the hedge;
  2. Maintain the hedge at a specific height or width; and
  3. Order to remove the trees in the hedge to be removed and replaced with a different species.

The test applied by the Court is whether the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order.

This raises the difficult question of what constitutes a "severe obstruction". Unfortunately, there is not a single definition of this term. Whether an obstruction of sunlight or views is severe is ultimately a question of fact for a Commissioner of the Court to determine.

Past cases provide a general outline of what is considered severe. An obstruction of views is generally not severe if there are filtered views through the trees or the obstruction is minor in the context of the matter. A hedge needs to be both high and similar to a wall in its visual effect.

The court will assess the nature of the view affected. For example, water views are generally valued more highly than land views and whole views are valued more highly than partial views. The court will also consider if the view is from a sitting or standing position. It is generally unreasonable to expect unobstructed views from one seat or a single fixed position from a dwelling. Finally, the court will also consider the vantage point from where the view is sought, such as in living areas or kitchens. These areas are valued more highly than areas such as bedrooms.

Similar considerations apply in the determination of a severe obstruction of sunlight. To demonstrate that an obstruction of sunlight is severe you will often need to provide evidence such as shadow diagrams that indicate the impact of the trees. We recommend engaging a qualified consultant to provide a report on this and other issues including dampness at the property.

Who pays costs?

Usually, parties to proceedings will have to pay their own costs. The court has power to award costs if it finds it is reasonable to do so, for example if a party has unreasonably delayed the proceedings.

There are limits on the Court's power to make orders and you may still need consent

The Court can make orders regardless of whether consent is required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. The Court cannot make those orders if the work to be carried out or activity to be undertaken is prohibited under any other Act.

If not prohibited, but consent is still required under any other Act, for example the Biodiversity Conservation Act 2016, you still have to apply for consent from the relevant authority for an order to carry out work or engage in any activity relating to the tree. The Court can make an order compelling a party to make that application.

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.

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