This is no small matter to deal with, as all of us are becoming more environmentally conscious. Still, with the best of intentions, we seem to find the time to fight with our neighbours about all types of things, including trees.
Some trees overhang, others invade our sewers and drainage, some block our gutters and some (heaven forbid) block our views!
The go-to legislation is the Trees (Disputes Between Neighbours) Act 2006 which applies to trees and hedges on private land, not public areas, such as parks.
It is, of course, always best to try to resolve the issue with your neighbours before you enter into a duel of branches and roots at forty paces.
If you have a tree issue, do some due diligence. Pay a visit to your local council or, at the very least, visit the council’s website. For example, your council will have a Development Control Plan that lists the types of trees for which permission must be sought before they can be cleared. If a tree is not covered by the council’s Development Control Plan this usually means it can be cleared without the need to obtain a permit.
Engage an arborist. A good arborist will deal with these issues regularly and will be able to identify if any vegetation has heritage value. They are also able to assist with mediation or act as an expert witness if you end up in litigation.
Avoid going onto your neighbour’s property, even if tempted by their bad behaviour. Why? Because you could be sued for trespass.
If you can’t negotiate with your neighbour, because emotions are running high, think about initiating mediation. Believe it or not, mediation has a high degree of success. A Community Justice Centre can be helpful in this regard.
Always remember you and your neighbour may be neighbours for many years to come. You don’t have to be ‘besties’, but it works well to have a respectful relationship in order to tolerate each other.
Litigation about tree disputes are dealt with by the Land and Environment Court of NSW if your dispute falls within the jurisdiction of the court which has a wide discretion of orders it can make, including restraining and preventing possible damage or injury by a tree.
A great source of disputes from trees relate to sunlight or obstructing views. If that is the situation, sorry for the pun, but literally you will be barking up the wrong tree unless you can establish evidence that sits with the provisions of the legislation. Tree conflicts remain in the ‘too hard’ basket for local governments and courts so preparation, preparation and more preparation is the name of the game.
Having painted a pretty gloomy picture, if a hedge (a hedge consists of 2 or more trees at least 2.5m tall and planted to form a hedge) is blocking sunlight or obstructing views the affected person must try and:-
1. attempt face to face resolution with the neighbour;
2. attempt mediation; and
3. as a last resort apply to the Land and Environment Court.
If the application is successful, the court may make orders including orders to remedy, restrain or prevent the severe obstruction of:-
1. sunlight to a window of a dwelling situated on the applicant’s land; or
2. any view from a dwelling situated on the applicant’s land.
Some of the orders may include:-
1. the tree be pruned or removed, or maintained at a specific height or width,
2. the tree be removed and replaced with a different species; and
3. the owner of the tree compensate the neighbour for damage caused by the tree.
The Court will only make an order if it is satisfied that the tree concerned has caused, is causing, or is likely in the next 12 months to cause damage to the applicant’s property or is likely to cause injury to any person.
The Court must not make an order unless the applicant has made a reasonable effort to reach an agreement with the owner of the tree about what should be done about it prior to commencing proceedings.
I hope this helps you to see the forest, notwithstanding the trees.