Australia: Tree disputes with neighbours best resolved by mediation

Tree disputes are among the most common causes of problems between neighbours in NSW. Overhanging branches, roots invading under the fence line damaging drains, buildings and driveways, foliage blocking views and the sun... these issues have led to more anger and frustration between neighbours than anything else.

Meet the aptly named Trees (Disputes Between Neighbours) Act 2006 (NSW), set up to "provide a simple, inexpensive and accessible process for resolving neighbour disputes about trees" in the Land and Environment Court – at least that is what the government tells us.

In reality the procedure for dealing with tree disputes under the Trees Act is more complicated than the politicians who made the law would have you believe.

Laws protecting your rights as homeowner vs laws protecting trees

Generally speaking, common law gives you the right to prune branches overhanging your property or roots that cross the boundary line. However, there are all sorts of laws protecting trees, such as tree preservation orders, and you need to make sure you are within the law before getting out the chainsaw. (Information about tree preservation orders can be found on NSW local council websites.)

There are laws protecting certain types of tree. The Act prohibits pruning or removal of some trees unless certain conditions apply. It even contains a definition of what constitutes a tree: "any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations".

Seeking to take action against a tree can involve all sorts of interested parties – the person on whose land it grows, tenants, the local council, the Heritage Council, expert arborists, and of course their legal representatives.

Exceptions where the Trees Act does not apply

Some land, such as Crown land, is exempt from the Trees Act. However, schools are not exempt. Rural residential land is also exempt, but there could be arguments over exactly what that means.

The Trees Act also requires determinations of whether an allegedly offending tree is the true guilty party causing the damage – or likely to cause damage if it gets any bigger.

The tree owner has a right to apply to the Land and Environment Court to save the tree and challenge claims of damage from the neighbour. A premature action in court could be dismissed if a tree has not yet caused any damage or blocked views, but might do so in future.

Applying to have a neighbour's trees and hedges pruned

Part 2A of the Trees Act allows a person whose view or sunlight is blocked by a high hedge or group of trees higher than 2.5 metres on a neighbour's private property to apply to the Land and Environment Court to have them pruned or replaced with shorter foliage.

But it doesn't apply to Crown land and the court has to be satisfied that taking action "outweighs the undesirability of interfering with the trees". Needless to say, this can get complicated.

Investigate your legal position before you litigate or mediate tree disputes

The important thing is to know exactly where you stand with the law, or where your tree stands with the law, before you get involved in complex court action.

It is far better to resolve tree disputes by mediation before the matter gets to court, but it is vital to know your legal rights before you walk into that discussion.

Anneka Frayne
Land and environment
Stacks Law Firm

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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