In brief – The law can help you resolve tree disputes, prevent further damage and potentially seek compensation
Trees, along with fences, have become one of the main causes of disputes between neighbours. If you are being affected by a neighbour's encroaching tree, the law provides you with a mechanism for resolving related disputes, preventing further damage to your premises and also potentially seeking compensation for any damage already caused by the tree.
The Trees (Disputes Between Neighbours) Act 2006 was put in place to provide a mechanism for neighbours to be able to resolve neighbourhood disputes regarding trees in a cost effective and efficient matter.
When is a tree a tree?
Under the Tree Act, a tree has been defined as being "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 to include shrubs and by the Trees (Disputes Between Neighbours) Regulation 2007 to include bamboo and vines, as well as hedges made up of group plantings of trees.
The tree must be located entirely or predominantly on the land adjoining the applicant's property.
Where does the Tree Act apply?
The Tree Act applies to any privately owned land located in a residential, village, township, industrial or business zone.
Rural residential land and Crown land (excluding schools) are exempt.
If you are not sure of the zoning of the affected property, you can make enquires at your local council.
Council owned trees exempted from Tree Act
Trees located on council owned land are exempt from the Tree Act. Any issues with council owned trees should be taken up directly with the relevant local council.
Why would you make an application under the Tree Act?
The best way to resolve any dispute is to try to resolve it directly with the owner of the property on which the problem tree is located.
However, if this proves to be impossible, you can apply to the Land and Environment Court for an order to remedy, restrain or prevent further damage being caused by the tree.
In addition, you may also apply for compensation for any damage already caused by the tree, such as damage to property or to business trade.
Who can make an application under the Tree Act?
An owner or occupier of a property adjoining the property on which the problem tree is located is able to make an application to the Land and Environment Court under the Tree Act.
It is important to note that all owners and occupiers should be noted on any application, so if you are a tenant, ensure the landlord's details are included in your application.
How do you make an application under the Tree Act?
An application can be made directly to the Land and Environment Court.
The application forms and other requirements are set out on the Land and Environment Court website. All questions listed on the application form should be answered, as this helps the court establish whether you have a valid application under the Tree Act.
Because the aim of the Tree Act is to provide a cost effective mechanism to resolve genuine disputes between neighbours regarding trees, applications to the Land and Environment Court currently cost only $217 for individual applicants and $434 for corporations. The application can be lodged at the Land and Environment Court directly by the applicant, without the requirement to obtain legal representation.
What does the Land and Environment Court take into consideration?
In relation to applications which pertain to property damage or personal injury including any claims for compensation, the Land and Environment Court requires the applicant to provide satisfactory evidence that:
- in accordance with section 10(1) of the Tree Act, all reasonable efforts have been undertaken to try and resolve the dispute directly with the owner of the property that the disputed tree is located on
- the subject tree has, is or will cause damage to the applicant's property
- in relation to personal injury claims, that the subject tree has or is more than likely to cause injury to a person
All matters to be considered by the Land and Environment Court in relation to an application are set out in section 12 of the Tree Act.
Unless the Land and Environment Court is satisfied in relation to the matters listed above and in section 12, it is unable to issue an order.
In relation to an application regarding hedges obscuring sunlight, the court will also consider whether the trees forming the hedge were planted or self sown and whether they are greater than 2.5 metres in height.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.