Trees, along with fences are one of the main causes of disputes between neighbours. The Trees (Disputes Between Neighbours) Act 2006, also known as the Tree Act was put in place to provide a mechanism for neighbours to be able to resolve neighbourhood disputes over trees in a cost effective and efficient manner.
A tree is defined as being ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations’. The definition was expanded by the 2007 regulations to include bamboo and vines, as well as hedges. A hedge is defined as a group of two or more trees so as to form a hedge, and rise to a height of at least 2.5 metres.
The Tree Act applies to any privately owned land located in residential, village, township, industrial or business zones. Rural residential land and crown land is exempt. Trees located on council owned land are exempt from the Tree Act.
Neighbours who disagree about how to deal with a tree that has caused, is causing or is likely in the near future to cause damage or injury to any person, or a hedge that is severely obstructing sunlight or a view can apply to the NSW Land and Environment Court for orders. The person making the application must be the owner or occupier of land that adjoins the land on which the tree or hedge is situated.
An application must be made at the right time to show the court that the tree has become dangerous or is damaging or a hedge is an obstruction. Take a hedge for example; the trees must be a height of 2.5 metres in order to be defined as a hedge under the Trees Act and those trees must cause a severe obstruction to sunlight to a window of or views from a dwelling on the applicant’s land. If these criteria cannot be met, the applicant may need to wait until such time that they can be met. Also, under the Trees Act, the Court cannot make an order in relation to a tree or hedge unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the neighbour first.
The Court has published a practice note that explains the steps required before the preliminary hearing, at the preliminary hearing, before and at the final hearing and the evidence that might be required at the final hearing.
The final hearing usually commences on-site where the tree or hedge is located and will be conducted by a commissioner of the Court who is an arborist. Some examples of the matters the Court must consider include the following:
Location of the tree or hedge in relation to the boundary and the dwelling, whether the tree existed prior to the dwelling, whether the tree or hedge has historical, cultural, social or scientific value, the impact of any pruning, any contribution of the tree or hedge to privacy, landscaping, protection from the sun, wind, noise and smells, anything other than the tree or hedge that has contributed to any damage or likelihood of damage and whether the tree or hedge lose their leaves during certain times of the year.
After the hearing the commissioner can make any such orders they think fit to remedy, restrain or prevent damage to property or to prevent injury to any person (for trees) or any order to remedy, restrain or prevent the severe obstruction of sunlight to a window or view from a dwelling.
This article is general information only and should not be relied on without obtaining further specific information.
Author: Michaela Schmidt