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. 

Our team of pro­fes­sion­als is here to assist in the event of any type of neigh­bour­hood dispute.