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neighbour's trees and the law nsw

Bob was fed up with the overhanging branches of his neighbour’s tree. Bob decided that before things got nasty, he would try to have the matter resolved amicably. A trained mediator will meet with you and your neighbour to discuss the problem and help you to resolve it. 2] [2007] NSWLEC 513, Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108, Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. A tree that is one person’s pride and joy can sometimes be a source of worry and frustration to their neighbours. Although you don’t need your neighbour’s permission, you may want to tell them of your intentions beforehand as a courtesy. You can contact the NSW Department of Primary Industries (DPI) Biosecurity Helpline 1800 680 244 to report a pest, disease, weed or other biosecurity concern. The Court has also referred to minimum sunlight requirements contained in planning policies. Trees are a frequent source of disputes between neighbours. You can also contact a Community Justice Centre for mediation with your neighbour about your concerns. This obstruction was considered severe. You can only apply to the court if you've already made a reasonable attempt to resolve the situation. Notice must also be given to any relevant authority and any person that may be affected by the order sought. The Act gives local councils power over the control and management of weeds (section 370). The tree was 99% on our property but the trunk did protrude slightly onto the neighbours property. If we approve your application, all pruning must be done on your property – the permit does not give you or your contractor permission to enter your neighbour’s place. The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. The Court also found that there was no evidence that the tree roots would in the near future, that is, in the next 12 months, cause damage to the underground services. Always remember - the situation is more likely to be resolved if you approach it fully informed and ready to negotiate. Tom was agreeable enough but just never got around to it. If an agreement can’t be reached, the next step is mediation, organised by a Community Justice Centre or legal action in the Land and Environment Court. In NSW it is the Trees (Disputes Between Neighbours) Act 2006, and in Queensland it is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Tree Laws). CPD. The SES attended and managed to cut dangerous branches and erect a tarpaulin over the affected parts of the house. In NSW the Environmental Planning and Assessment Act 1979, the Biodiversity Conservation Act 2016 and Local Land Services Act 2013 and their associated regulations and environmental planning instruments operate together with local council measures to protect most trees and other vegetation on public and private land. Also, for the Court to issue an order against a party concerning a tree on their land, the tree must be located wholly or mainly on their land, that is, where at least fifty per cent of the tree’s trunk enters the ground (Trees Act, section 4(3))(Brown v Weaver [2007] NSWLEC 738; Drolz v Sinclair [2008] NSWLEC 34; Inbari v Rankin [2010] NSWLEC 1236). However, as the hedge grew they lost winter sun to these areas where they spent most of their time. Trees and plants are a common cause of disputes between neighbours. An order to shift the loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just’. the obstruction is so severe or of such a nature that the applicant’s need to remedy the situation outweighs the undesirability of interfering with the trees (section 14E). The common law position prior the Trees (Disputes between Neighbours) Act 2006 . In most instances, proceedings are commenced because the tree or trees in question are causing damage to a neighbouring property. The Biosecurity Act 2015 applies to all NSW land and waters and sets out a general duty of any person who deals with any plant that poses a biosecurity risk, to ensure that risk is prevented, eliminated or minimized, so far as is reasonably practicable (Parts 1 and 2 and section 22). The Trees (Disputes Between Neighbours) Act 2006 is designed to provide a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours. Three months on, things are much friendlier: with council approval the tree has been pruned, the noise level is a bit lower, both neighbours attend each other’s parties, the dividing fence has been repaired and so the dog poo stays on Bob’s side of the fence now: a win/win situation. Parties often use experts such as arborists, engineers, architects or builders in their evidence. You are entitled to take action to stop that nuisance. This doesn’t mean the trees must form neat lines, for example, they can form a triangular shape (, Concerning a severe obstruction of sunlight, the obstruction of sunlight must be to a window. Unlike other cases involving Bunya pines, where the risk of injury was not considered likely, the Court here ordered that each year the neighbours, Mr and Mrs Vella, must pay for a thorough inspection of the tree by an arborist and the removal of cones before they reach a dangerous size. The poor management of greenery can lead to disputes and hostile interactions between neighbours. In any event, the obstruction to sunlight outweighed any negative impact the pruning would have. They can provide privacy and enhance amenity, but they can also annoy neighbours and damage their property. Now, an application can be made to the Land and Environment Court for orders concerning a neighbour’s tree or trees that cause or are likely to cause harm, or trees that form high hedges obstructing sunlight or views. This can include land across a public roadway (P Baer Investments Pty Ltd v University of NSW [2007] NSWLEC 128) from the applicant or properties that adjoin diagonally, having only a corner post in common (Cavalier v Young [2011] NSWLEC 1080). In weighing up the impact of the obstruction with the impact of pruning the hedge, the Court found that the Rettenmaiers’ wish for privacy was reasonable and that some pruning could retain their privacy and still improve (although not totally restore) the view. If the tree is found to be diseased or unstable, it must be removed. Consider from which part of the property the views are obtained. Protection of views across side boundaries is more difficult than those from front or rear boundaries. Under Part 2A of the Trees Act, a landowner or occupier can apply to the Land and Environment Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling or a severe obstruction of any view from a dwelling, if the obstruction is from trees on adjoining land (section 14B). Under the Biosecurity Act, all plants are assessable for their biosecurity risk. Having problems with neighbours over fences or trees? Also they are evergreen and so provide a year-round obstruction. Under NSW law, the court can make orders to “remedy, restrain or prevent damage to a property” (or injury to a person) caused by a tree on adjoining land. This professional will assess the cultivation and management of the tree, shrub or plant, and choose whether to cut it back or remove it. As Mr Leischke had no knowledge of the tree’s problems and did nothing that contributed to the demise of the tree, the court felt that he wasn’t under any duty to prevent or minimize the risk of any damage to Mrs Robson’s property nor should he be held responsible for the damage that resulted. Hunters Hill Council v Liu [2018] NSWLEC 108. The overall aim, wherever possible, is to conserve vegetation, especially in … Published by the Legal Information Access Centre (LIAC), State Library of New South Wales. If the neighbour’s tree existed before the applicant built the home and the applicant could have located the home elsewhere on the property or constructed it in such a way as to avoid future damage or risk of injury from the tree then the applicant may well have to contribute to the costs of the tree work or repairs. In considering all of the evidence, the Court found that as large, mature cones do fall from the tree and as the backyard is used intensively by the Ghazals, the risk of injury is foreseeable and it is unreasonable to place the burden of managing this risk on the Ghazals. A decision made under the Trees Act can be appealed on a question of law only. They were also worried branches could damage their home. Several times, Bob had asked his neighbour, Tom, to prune the tree. It can also be found on the Land and Environment Court’s website. The Court ordered the bamboo be pruned and maintained at a point equal to the ridge-line of the Rettenmaiers’ roof, at their expense. As the cones would fall without warning, the Ghazals had become increasingly worried that someone would be hurt and so applied to the Court for orders that the tree be de-coned. To take advantage of the sunlight and expansive views, the living room and kitchen, with its large windows as well as an outdoor raised deck, are located at the rear. Authors: This publication was originally produced as Hot Topics 50: Neighbours and the Law, by Jane Needham SC and Sarah Hill. In Ghazal v Vella large cones dropping from a neighbour’s Bunya pine were creating problems for the Ghazal household in Blacktown. There was no risk of injury or damage to his property but nonetheless these branches were a pest. Council only has jurisdiction to provide advice for trees on private land when owners of the trees apply for removal approval. Or are you concerned with issues relating to planning or the environment? This is contained in Schedule 7 of the Uniform Civil Procedure Rules 2005. In Hough v Rettenmaier the neighbour’s eight metre bamboo hedge was obscuring the applicants’ view of Port Hacking from their upper and lower balconies and family/kitchen area. In February 2016 Ms Yueling Liu engaged a tree lopper to cut down two of her neighbour’s trees in the leafy Sydney suburb of Hunters Hill. Trees and hedges are one of the most common causes of neighbour disputes. The Court’s Commissioner hearing the case, together with the parties and any experts involved in the case, attend the applicant’s property and the tree (or hedge) to thoroughly inspect the problem and better understand the evidence. All trees of a certain size are protected in the City of Sydney local area. For helpful information about insurance cover when a tree falls, see the Financial Rights Legal Centre’s factsheet When a tree falls in a storm, who pays for its removal? The Court dismissed the application to remove the trees and ordered that the two sections of the Deans’ driveway near the trees be removed and replaced properly without damaging major tree roots and that the Ellsworths contribute 40 per cent of these costs. Each time he got out of the car in his driveway he had to duck and dive around the low hanging foliage. You can be fined if you breach a Tree Preservation Order. The Trees (Disputes Between Neighbours) Act 2006, called the ‘Trees Act’, provides a much cheaper and simpler method for resolving some of the tree disputes between neighbours than the legal remedy that was previously available. the tree concerned is likely to cause injury to any person. Part 2 – dealing with orders relating to damage to property and injury to people. For example, where the neighbour’s tree has damaged the applicant’s home or risks injuring people around the home, the Tree Dispute Principle from the case of Black v Johnson [No. Conflicts involving trees and neighbors are best resolved through communication, but there are laws covering these types of situations. The purpose of this booklet is to outline the law relating to tree problems between private neighbours and to suggest … The court said it is obliged under section 9 to consider what order, if any, best meets the justice of the situation and here it decided to ‘leave the loss where it falls, namely on Mrs Robson. In NSW legislation largely regulates the planting, pruning, destruction and removal of trees and plants and also deals with some of the disputes. Importantly, under section 10, the Court cannot make an order under Part 2 unless it is satisfied that: If these conditions are met, the Court must then consider a number of other matters contained in section 12. Reluctantly, in 2010, Mr Tonoli applied to the Land and Environment Court for an order under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 for the hedge to be pruned to allow sunlight back through the windows. to restrain or prevent damage or further damage to property, requiring an application for consent be made to a body such as the Heritage Council, authorising the applicant to take specific action to remedy, restrain or prevent damage or injury, authorising entry onto land for the purpose of carrying out an order, for the payment of costs associated with the carrying out of an order, remove a tree, grind or poison its stump and remove offending roots, pay for roofing work and replacement of tiles damaged by fallen tree limbs, pay for repair/replacement costs for sewer pipes, cracked walls or paths badly damaged by tree roots. The types of orders the Court can make under Part 2 (section 9) include an order: Orders for repair of property or compensation for damage or injury can still be issued by the Court though the tree may have been already removed (section 4(4)). For trees that cause damage, subsection 9(1) of the Trees Act gives the Court power to make such orders ‘as it thinks fit’ to remedy the damage. The court may also order compensation for damage already caused by a tree. The person applying for the Part 2 order must give 21 days notice of the application (including the terms of the order sought) to the owner of the land where the tree is located and to any relevant authority that may become involved in the proceedings and any other person that may be affected by the order. You can only trim up to the property boundary. He contacted the Community Justice Centre and asked about mediation. Other issues may involve damage to a neighbour's tree, falling leaves or trees on one property affecting the views or amount sunlight reaching another property. Sitting views are more difficult to protect. The expectation to retain side and sitting views is often unrealistic. The tree and indeed the retaining wall had been there long before Mr Leischke bought the property and although old, the tree appeared extremely robust and healthy until the fatal storm.Â. The CJC then contacted Tom and asked if he would agree to mediation. In NSW the law in relation to tree disputes between neighbours changed with the commencement of the Trees (Disputes between Neighbours) Act 2006. Although you don’t need your neighbour’s permission, you may want to tell them of your intentions beforehand as a courtesy. A helpful guide for Litigants in Person in the Land and Environment Court can be found on the Court’s website. trees can be a ‘hedge’ regardless of whether they were intentionally planted as a hedge (, a single tree that is obviously separate from other trees cannot be included as part of a hedge (, have reached the required minimum height at the time of the hearing (, be arranged in a linear fashion, that is, side-by-side, exhibiting a degree of regularity. Water views are valued more highly than non-water views. We will not accept your application if it relates to removing a neighbour’s tree. Or with your landlord? … Ms Liu had approached the council to apply for a permit, saying the trees sparked during storms and were dropping leaves into her pool. Reports from an arborist, engineer and a structural engineer were provided by the parties and the Court made a site visit. A Part 2A order is not available where a single tree is causing the obstruction. Bin collections, parking permits, rates, development applications and reporting issues, Vision, planning, projects and consultation, Parks, pools, libraries, gyms, community centres, gardens and customer service centres, Hire a sports facility, rehearsal space, hall or meeting room, Support and funding, programs and initiatives, Lord mayor and councillors, council and committee meetings, Sydney DCP 2012: Tree management controls, Exemptions for pruning and removing trees, Check the Land and Environment Court’s website. In rural areas, the threat of bushfires is also taken into account. Below is an outline of the laws most relevant to neighbours. It considers the existing law regulating trees and noise and makes recommendations for reform. The court went on to decide that the hedges were not considered to be of historic or cultural value, have no great public amenity, do not impact on soil stability and don’t seem necessary for privacy. 2] [2007] NSWLEC 513 and Moroney v John [2008] NSWLEC 32 helps the Court decide who should pay for the tree work or repairs. Typical planning controls for building developments generally require three hours of sunlight to living areas and private open space for at least 50 per cent of these areas between 9am and 3pm on June 22nd, the shortest day. They found that the view from the family/kitchen area would not be of water as it was largely of another neighbour’s vegetation and the sky, and was only accessed from the windows by walking through the area or from a sitting position.Â. Find out more. Want to prune overhanging branches from a neighbour’s tree in the City of Sydney area? NSW WeedWise profiles over 300 high risk plants, giving details of the plant’s description, the type of biosecurity risk it poses, any duty imposed to reduce or eradicate the risk, as well as various methods to control it. Barry v Stelzer; Barry v Lucas [2011] NSWLEC 1104, Tenacity Consulting v Warringah [2004] NSWLEC 140. The Court found that the upper balcony, being adjacent to the bedrooms, was not primary living space but the lower balcony was the main private outdoor entertaining space adjacent to the living areas and from this balcony the bamboo almost entirely obliterated the water view. Tree disputes: understanding the law NSW Land and Environment Court 2012 their dwelling, to make an application to the Land and Environment Court to make orders. As retirees, Mr and Mrs Ghazal were keen gardeners and together with their extended family they spent considerable time in their backyard where they had an outdoor sink, vine-covered pergola, fruit trees, landscaping and a nearby shed. The usual practice of the Court in any action under the Trees Act is to make a site visit. In addition, it can result in the local council carrying out the work required in the order and recovering the costs together with an administrative fee. For disputes that do not fall within the Court’s jurisdiction under the Trees Act, for example where the offending tree is on a property that is not technically an ‘adjoining’ property, an action in the Supreme Court for nuisance would be required. The new Act provides a comprehensive framework for identifying, preventing and managing biosecurity risks, including weeds, pests and plant and animal diseases. Disputes over trees can sometimes arise between neighbours, for example, if tree roots or branches are damaging a shared fence. In NSW legislation largely regulates the planting, pruning, destruction and removal of trees and plants and also deals with some of the disputes. This chapter was updated in October 2019 to reflect changes to the management of biosecurity risks, including weeds, pests and plant and animal diseases. In most areas of NSW, before you prune or remove a tree you must apply for permission from your local council. There is also the duty to notify of the presence or suspected presence of prohibited matter, listed in Schedule 2 of the Act (Part 4). the location of the trees in relation to the boundary and the dwelling, 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, whether interference with the trees would normally require consent from the local council or the Heritage Council and if so, whether it has been obtained, whether there are any other development consent requirements or conditions relating to either the applicant’s land or the land where the trees are located, whether the trees have historical, cultural, social or scientific value, the contribution of the trees to the local ecosystem and biodiversity, the contribution of the trees to the natural landscape and scenic value of the land and of the locality, the trees’ intrinsic value to public amenity, the trees’ impact on soil stability, the water table or other natural features of the land or locality, the impact that pruning would have on the trees, the trees’ contribution to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land where they are situated, anything other than the trees that has contributed or is contributing to the obstruction, 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 from the obstruction throughout the year and the time of the year during which the sunlight is lost, whether the trees lose their leaves during certain times of the year and if so, for what portion of the year, the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view. Trees can be seen as competing for space, water and sunlight, and can sometimes be responsible for inconvenience and damage. In 2018 Ms Liu pleaded guilty to the offence and the NSW Land and Environment Court, after taking various factors into account, fined her $48,000. Assess the extent of the impact the obstruction has on the view. It provides telephone assistance and financial counselling as well as legal advice and representation. The draft drew on the work undertaken by the NSW Law Reform Commission and considered in Report 88 but took a different approach to a number of the Commission’s recommendations. During the site visit, an examination of the cracks in the driveway showed that some of the cracks that were not near the trees had radiating patterns and some were straight lines in the direction of the driveway. “This is not an inner urban environment where views are inherently more restricted. If the tree is unstable or unsafe, then you might have a fighting chance. 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