As part of Law Week 2013 last month, Baker Love Lawyers partner TERRY MORGAN presented a seminar on Neighbourhood Disputes. Neighbourhood disputes can encompass a large variety of areas, but perhaps the most commonly recognised issues are trees, fences, or perhaps a combination of the two, he writes with JANINE WILSON.
If you are being affected by a neighbour’s encroaching tree, the Trees (Disputes Between Neighbours) Act 2006 (NSW) provides a cost effective and efficient mechanism for resolving such disputes, as well as preventing further damage to your premises and possibly seeking compensation for any damage already caused.
Is it a Tree?
Under the Act, a tree is defined as “any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations”. This definition has been expanded by case law and related regulations to include shrubs, bamboo and vines, as well as hedges consisting of grouped tree plantings.
Does the Act apply to me?
The Act applies to any privately owned land located in a residential, village, township, industrial or business zone. Trees located on Council owned land are exempt. Any issues regarding council owned trees should be referred directly to the relevant Council.
Who can make an application under the Act?
In the first instance, the best way to resolve any dispute is to try and resolve it with the owner of the property on which the subject tree is located. If this proves impossible, you may apply to the Land and Environment Court for an order to remedy, restrain or prevent further damage being cause by the tree.
It is important that all owners and occupiers should be noted on any application, so if you are a tenant, the landlord’s details should also be included on your application.
What is taken into account by the Court?
Applications to the Land and Environment Court should be made using the prescribed forms. Because the aim of the Act is to provide a cost effective method to resolve genuine disputes between neighbours regarding trees, applications currently cost only $217 for individuals and $434 for corporations.
Applications which pertain to property damage or personal injury including claims for compensation require satisfactory evidence that:
- All reasonable efforts have been undertaken to try and resolve the dispute directly with the land owner on which the tree is located;
- The subject tree has, is or will cause damage to the applicant’s property; and
- In relation to personal injury claims, that the subject tree has or is more than likely to cause injury to a person.
