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Trees and plants

Trees and plants are a common cause of disputes between neighbours. In NSW legislation largely regulates the planting, pruning, destruction and removal of trees and plants and also deals with some of the disputes. The overall aim, wherever possible, is to conserve vegetation, especially in the urban environment. Below is an outline of the laws most relevant to neighbours.

Noxious weeds

The Noxious Weeds Act 1993 prohibits the planting or growing of ‘noxious’ plants and requires occupiers to control noxious weeds on their land. Local councils are responsible for the control of noxious weeds in their area and may issue a ‘weed control notice’, requiring an occupier to carry out weed control. You can find a list of ‘noxious weeds’ on the NSW Department of Primary Industries website or visit your local council’s website.

Apart from noxious weeds, you do not need council approval to plant a tree or plant on your land. However, as trees can block drains, damage buildings and obstruct views, you may wish to consider your choice of tree and its location carefully.

Tree preservation orders

Local councils are responsible for protecting trees through their Tree Preservation Orders (TPOs). These orders are Environmental Planning Instruments made under the NSW Environmental Planning and Assessment Act 1979.

Tree Preservation Orders can prohibit the ring barking, cutting down, lopping, removing, injuring or wilful destruction of specified trees, without council consent. If you are considering doing any of these things to a tree on your property, check first with your local council to see if it is protected under a TPO. There are heavy fines for breaching a TPO.

The exact terms of the Tree Preservation Orders vary from council to council.

In many local council areas, most trees on both public and private property are protected.

Many councils also incorporate tree preservation in the provisions of their Local Environmental Plans. These may include detailed requirements for obtaining consent from the council to interfere with a protected tree.

If a tree is protected, you can generally obtain consent from the local council to prune or remove it if:

  • the tree is dead or damaged or is about to fall or cause some other immediate damage
  • there are problems with roots blocking pipes
  • the tree is threatening a building or structure
  • the tree is on a boundary and you or your neighbour wishes to erect a dividing fence
  • branches are threatening roof tiles or other damage
  • overhanging branches are causing a nuisance.

The council may impose conditions on the consent.

As local councils control much of the protection of trees, the restrictions and procedures can vary from council to council. Be sure to check with your own local council to know your rights and responsibilities regarding trees and plants.

Most council websites contain helpful and important information, including procedures for pruning overhanging branches of a neighbour’s tree, applying for approval to carry out tree work, appealing a TPO assessment, information about protected trees and noxious plants and general information about the management of trees in the local council area.

Tree disputes

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. Before the Trees Act, a common law action for nuisance had to be taken in the Supreme Court. 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.

Under the Act, the Court can order a range of actions to stop, prevent or remedy the harm or obstruction. Failure to comply with an order can result in further proceedings and a fine of up to $5500 (Trees Act, section 15). 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. If these costs are not paid, the debt against the council can eventually be registered as a charge on the land (section 17).

The major parts of the Trees Act are:

  • Part 2 – dealing with orders relating to damage to property and injury to people
  • Part 2A(introduced in 2010) – dealing with orders concerning obstruction of sunlight or views by trees that form a hedge.

Case study

Bob was fed up with the overhanging branches of his neighbour’s tree. Each time he got out of the car in his driveway he had to duck and dive around the low hanging foliage. When it rained he had to fight the canopy of wet leaves to reach his back door. There was no risk of injury or damage to his property but nonetheless these branches were a pest.

Several times, Bob had asked his neighbour, Tom, to prune the tree. Tom was agreeable enough but just never got around to it. When Bob put the request in writing and offered in frustration to do the job himself, Tom refused to allow Bob to touch the tree.

So Bob did some investigating. He found out from his local council that the tree was protected. According to the terms of that council’s Tree Preservation Order and the amount of pruning that would be needed here, the council’s consent would be required and unfortunately, the request for consent would need Tom’s signature.

Bob decided that before things got nasty, he would try to have the matter resolved amicably. He contacted the Community Justice Centre and asked about mediation. The CJC then contacted Tom and asked if he would agree to mediation.

As it happened, Tom had a few gripes of his own about his neighbour Bob: the parties and the noise, the dividing fence and the dog poo. Here was an opportunity to have these headaches addressed.

Bob and Tom attended mediation and were surprised at the level of anger that had built up between them. With the help of the trained and skilful mediator, and with renewed goodwill as neighbours, they made a list of problems and actions that they could agree on to restore peace to their lives. They also made a timeline and an agreement about sharing costs.

Three months on, things are much friendlier: 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.

For the Court to have jurisdiction, or power, to make any order under the Trees Act, the offending tree must be on land adjoining the applicant’s (sections 7 and 14B). 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). However it would not include land further away. For example, where an applicant seeks orders concerning damage from a tree that is located several houses away, it is unlikely the Court would have the power to make the orders.

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). The Act defines ‘tree’ as including bamboo and vines as well as any woody perennial plant (shrub) (Lentfer v Hopkins [2008] NSWLEC 1452) or plant that resembles a tree (Trees Act, section 3 and Trees (Disputes between Neigbours) Regulation 2007, reg 4).

If the property where the tree is located is sold during proceedings under the Trees Act, the Court may require the purchaser be notified and have the opportunity of being added as a party to the proceedings (Haindl v Daisch [2011] NSWLEC 1145). Court orders made under the Trees Act may, under certain conditions, be binding on a subsequent owner (sections 16 and 16A). Also, a local council or the Heritage Council may be made part of the proceedings if their consent is needed for any work to be done on the tree (sections 13 and 14G).

The usual practice of the Court in any action under the Trees Act is to make a site visit. 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.

Parties often use experts such as arborists, engineers, architects or builders in their evidence. In general, for this to be given proper weight by the Court, any expert providing a report or appearing as a witness must acknowledge reading and agree to be bound by the Court’s Expert Witness Code of Conduct (Spillane v Burgess [2009] NSWLEC 1289). This is contained in Schedule 7 of the Uniform Civil Procedure Rules 2005. It can also be found on the Land and Environment Court’s website.

Although the evidence can sometimes be technical, parties often represent themselves in Trees Act cases. A helpful guide for Litigants in Person in the Land and Environment Court can be found on the Court’s website.

What follows are the specifics of the two main parts of the Trees Act.

Damage to property or injury to people

Under Part 2 of the Trees Act, a landowner or occupier can apply to the Court for an order to remedy, restrain or prevent damage to property or injury to any person that is caused or is likely to be caused by a tree on adjoining land (section 7).

Part 2 applies to trees in areas zoned as:

  • residential
  • rural residential
  • village
  • township
  • industrial
  • business or
  • having the substantial character of one of these zones (section 4).

It does not apply to trees on council land (section 4).

The types of orders the Court can make under Part 2 (section 9) include an order:

  • to remedy damage to property
  • to restrain or prevent damage or (further damage) to property
  • to prevent injury to any person
  • 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
  • for compensation for damage to property
  • requiring that a tree be replaced.

Some examples are for orders to:

  • remove a tree, grind or poison its stump and remove offending roots
  • prune overhanging tree limbs
  • 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
  • pay for installation of a root control barrier.

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)).

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. If appropriate, the Court may direct that the notice be given in a certain way or to a certain person, that the notice requirement be waived or that the notice period be changed (section 8).

Importantly, under section 10, the Court cannot make an order under Part 2 unless it is satisfied that:

  • the applicant has made a reasonable effort to reach agreement with the other party and
  • the applicant has given the proper notice of the application to the other party (unless it has been waived by the Court) and
  • the tree concerned has caused, is causing, or is likely, in the near future (that is, in the next 12 months) (Yang v Scerri [2207] NSWLEC 592; Bailey v Gould [2011] NSWLEC 1062) to cause damage to the applicant’s property, or
  • the tree concerned is likely to cause injury to any person.

If these conditions are met, the Court must then consider a number of other matters contained in section 12. They include:

  • the location of the tree in relation to the boundary and any premises
  • the impact that any pruning would have on the tree
  • any contribution the tree makes to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land it is on
  • whether the tree has any historical, cultural, social or scientific value
  • any contribution the tree makes to the natural landscape or scenic value of the land or the locality
  • any contribution the tree makes to the local ecosystem and biodiversity
  • the tree’s intrinsic value to public amenity
  • any impact the tree has on soil stability, water table or other natural features of the land or the locality
  • where the application relates to damage to the applicant’s property or likely injury to any person:
    • anything other than the tree that has contributed, including any act or omission by the applicant, and the impact of any trees owned by the applicant
    • any steps taken by the applicant or the owner of the land that the tree is on, to prevent or rectify the damage or prevent the injury.

In deciding cases under Part 2 of the Trees Act, the Land and Environment Court has developed some Tree Dispute Principles. 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. 2] [2007] NSWLEC 513 and Moroney v John [2008] NSWLEC 32 helps the Court decide who should pay for the tree work or repairs. 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.

Another Tree Dispute Principle concerns the normal mess of leaf litter and debris associated with trees. In several cases the court has emphasised that the usual dropping of leaves, flowers, fruit, seeds or small amounts of deadwood will not ordinarily justify an order to interfere with or remove a tree. In Barker v Kyriakides [2007] NSWLEC 292 the Court said that with the aesthetic and environmental benefits of having trees, especially in urban environments, we should accept the responsibility to do a reasonable amount of regular maintenance, like clearing our gutters and house surrounds, of leaf litter and debris (See also Robson v Leischke [2008] NSWLEC 152; Moroney v John [2008] NSWLEC 32; Lowe v Cottrell [2011] NSWLEC 1003).

In other cases, although not established as Tree Disputes Principles, the Court has decided the following:

Concerning risk of injury

Concerning damage to property

Case study

Mr McLevie and his wife purchased their property at Glebe in 2004 but it was not until 2009 when they were removing a built-in shelf that they discovered a large crack in an internal wall of their home.

They immediately contacted their neighbour, Ms Anderson, about the crack as they believed it was caused by the Kaffir Plum tree on her property.

Ms Anderson was agreeable about removing the tree but would not agree to paying for it or paying for repairs to the wall. In 2010 the dispute was taken to the Land and Environment Court.

Reports from an arborist, engineer and a structural engineer were provided by the parties and the Court made a site visit. From all the evidence the Court was satisfied that the growth of the tree and its root system were the main, if not the sole cause of the cracking in the wall and should be removed.

The Court also found that the applicants should not have to contribute to the costs of removal and the associated repairs as the tree is wholly on Ms Anderson’s property, the applicants did not delay in contacting her about the damage once it was discovered and the applicants had not contributed at all to the damage.

The Court ordered that the tree be removed, the wall be repaired as per the engineer’s estimate (to a maximum of $4500) and a television aerial (also damaged by the tree) be replaced, all at Anderson’s expense.

McLevie v Anderson [2010] NSWLEC 1091

Case study

Large cones dropping from a neighbour’s Bunya pine were creating problems for the Ghazal household in Blacktown. When they had bought their home in 1986 the pine had not been there but by 2010 it was overhanging their backyard by almost three metres.

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. But each summer since 2004 the Bunya pine had been dropping large cones weighing up to 10 kg. 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.

At Court the neighbours, Mr and Mrs Vella, presented an arborist’s report. It argued that there have been no recorded fatalities from a falling cone and that the mathematical chance of harm from a cone and its cost in dollar terms is far cheaper than the cost of ongoing de-coning.

The Court criticised this report on a number of grounds, including its failure to fulfil several of the criteria for expert reports in the Expert Code of Conduct. 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.

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.

Ghazal v Vella [2011] NSWLEC 1105

Case study

Mr and Mrs Dean wanted two Eucalypts on their neighbours’ property to be removed because the tree roots were damaging their driveway and could potentially damage the underground services buried beneath. They were also worried branches could damage their home.

The neighbours, Mr and Mrs Ellsworth, did not want the trees removed as they valued the shade that they provide, the wildlife they attract and their visual amenity.

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. The driveway was 22 years old and of thin asphalt.

The Court found that the Ellsworth’s trees had contributed to the damage of the Dean’s driveway but that the age and construction of the driveway were the main causes of its deterioration. 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. As for the tree branches, the Court found no evidence of a likely risk of injury.

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.

Dean v Ellsworth [2010] NSWLEC 1032

High hedges

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).

The trees must:

  • be a group of two or more
  • be planted to form a hedge, and
  • rise to a height of at least 2.5 metres above existing ground level (section 14A(1)).

A Part 2A order is not available where a single tree is causing the obstruction.

Part 2A does not apply to trees situated on Crown land or on land zoned as ‘rural-residential’ or having the substantial character of a rural-residential zone (section 14A(2)).

Similar to the notice requirements in Part 2, under Part 2A the applicant must give at least 21 days notice of the application (including the terms of the order sought) to the owner of the land where the tree is located. Notice must also be given to any relevant authority and any person that may be affected by the order sought. If appropriate in the circumstances, the Court has the power to waive or to change the notice requirements (section 14C).

Orders under Part 2A to remedy, restrain or prevent the obstruction can require action such as:

  • pruning the trees and maintaining them at a certain height, width or shape
  • removing the trees and replacing them with trees of a different species
  • authorising entry to the land to carry out the orders
  • payment of the costs of the work.

An order for compensation for the obstruction, however, is not available (section 14D).

Under section 14E, to make an order, the Court must first be satisfied that:

  • the applicant has made a reasonable effort to reach agreement with the owner of the land where the tree is located
  • the applicant has given the proper notice (unless it has been waived by the Court)
  • the trees concerned are severely obstructing the sunlight to a window of the applicant’s dwelling or obstructing a view from the applicant’s dwelling
  • 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).

As the Act does not define ‘a reasonable effort to reach agreement’, the Court would consider the circumstances of each case. In the case of Voeten v Adams [2011] NSWLEC 1106 the applicant’s letter requesting the hedge be pruned was considered a reasonable effort.

If the conditions in section 14E are met, the Court must then consider a number of other matters (Bowen v Martin [2011] NSWLEC 1195), including:

  • 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