All Bark and No Bite: Tree Disputes Between Neighbours
Posted 23 months ago by Joerg Schmidt-Liermann
A succinct account of the Common Law surrounding tree dispute resolutions
In Australia, we aim for the big backyard and value the aesthetic and privacy that trees bring to our property. It’s no wonder then, that tree related issues are the focus of common neighbourly disputes. What happens when your neighbour decides that the tree in your backyard is encroaching onto their property and obstructing their views? Which neighbour has legal rights over the tree and under what circumstances is a neighbour legally allowed to prune, trim or even remove trees on their neighbouring property?
This Blog offers an overview of the application of Australian common law in neighbourly tree disputes. This should be read in conjunction with our soon to follow blog on the operation of the Trees (Disputes Between Neighbours) Act 2006, which when read together provide a point of reference for neighbourly disputes over trees.
Tree disputes under Common Law prior to the Trees (Disputes Between Neighbours) Act 2006
When it comes to trees that cause damage on neighbouring properties, there are three situations that may trigger a cause of action at common law (the right to sue or enforce a right against your neighbour) before a court:
2) Nuisance; and
A trespass occurs when a person or person’s property, enters land without permission or licence from the land owner, unless entry is justified in some way. Each unjustified entry constitutes a trespass, whether or not any damage is inflicted on the property.
For trespass to be actionable under common law, it must be a direct intentional act that causes physical intrusion. For example, if your neighbour cuts off branches of a tree that is located on their land and those branches fall within your property – that is a trespass. Similarly, entering a neighbours land to cut away branches or roots that encroach over the property boundary also constitutes a trespass.
If however, the intruding branches or roots are there by natural forces, such as wind, it is an indirect intrusion and is therefore considered a nuisance.
The second cause of action at common law is a private nuisance. This is an act or omission which interferes, disturbs or annoys a person in their right to exercise or enjoy their ownership or occupation of the land. It is an infringement without direct entry.
Unlike trespass, a nuisance is only actionable:
- with proof of special damage to the neighbour’s land; and
- by determining fault of the owner of the land on which the tree that caused damage is situated.
When attributing fault the court looks at the conduct of the tree owner. That is, has the owner created the nuisance or adopted/continued the nuisance.
If the tree owner created the nuisance, fault can be further characterised by the nature of the conduct and their state of knowledge at the time the nuisance was created. Liability of the tree owner occurs in the following situations:
a) If the land owner deliberately or recklessly uses their land in a way that will cause harm to their neighbour and the harm is considered by a judge to be an unreasonable infringement of their neighbour’s interest in their property then that person is liable and considered negligent in relation to his neighbour.
b) If a tree owner knew or should have known that by consequence of his conduct, harm to his neighbour was reasonably foreseen to occur then they are liable and considered negligent with regard to their neighbour. It is the duty of care of a land owner to prevent consequences that are reasonably foreseeable.
A continuing nuisance occurs when the tree owner has knowledge of the existence of a nuisance and fails to take reasonable methods to put an end to the nuisance within a reasonable time. Likewise, a land owner adopts a nuisance when they make use of the tree or structure that constituted the nuisance.
So, what constitutes a nuisance?
Private nuisance under common law often boils down to balancing the right of the land owner to do what they like on their land, with the right of the neighbour to not have their use or enjoyment of their property interfered with. There are 3 types of interferences that are recognised by law as a nuisance:
1. Causing encroachment on neighbour’s land (that is not trespass). That is, if the branches or roots of a tree encroaches into the air above or soil below neighbouring land. For this nuisance to be actionable it must cause damage. Some examples of actionable encroachment nuisances include:
- the encroachment of branches blocking downpipes;
- the encroachment of branches interfering with the growth of neighbouring trees;
- the encroachment of poisonous plants corrupting the neighbour’s soil or poisoning their animals;
- the encroachment of roots damaging retaining walls, stormwater or sewerage drains; and
- the encroachment of roots damaging a neighbour’s lawn or patio and interfering with their enjoyment of the land or gardening operations.
If your neighbour has a tree that is encroaching onto your property then, provided that you have the necessary council permit that may be required, you are permitted to cut away the encroaching branches or roots in an attempt to abate the damage; and cut the encroaching limbs to the boundary of your land. If you go any further, then this constitutes trespass.
The cut branches or roots remain the property of the owner of the land on which the tree grows and thus should be returned to the tree owner to avoid liability for conversion of your neighbour’s property.
2. Causing physical damage to the neighbour’s land or the structures on it. This occurs where, by consequences of the land owners conduct, physical damage extends onto the neighbours’ land. With regard to trees, this conduct includes anything that harms the health or structural stability of the tree on their land. This could entail lopping, cutting off branches and roots, excavating around the tree or roots, poisoning the tree, ringbarking or allowing the tree to become unsafe so that it falls onto neighbouring land.
3. Unduly interfering with a neighbour in their comfortable enjoyment of their land. This interference often transpires when something emanates from the land.
- sediment from soil erosion;
- smoke; or
- offensive odours or stenches.
If the nuisance is not from an emanation above, it is rarely an actionable nuisance. E.g. A tree spoiling a neighbours view, restricting flow of air onto a neighbours land or taking away light from a neighbours window are not actionable nuisances under common law.
Negligence is the last cause of action under common law. It is a more complex cause of action where to be successful, one must be able to be proven that:
1) The tree owner owed their neighbour a duty of care, recognised by law, requiring the tree owner to adhere to a certain standard of conduct;
2) The tree owner breached that duty;
3) The neighbour suffered loss or damage;
4) The loss was caused by the tree owners breach of that duty; and
5) The loss suffered was reasonably foreseeable as a result of a possible negligent act or omission by the tree owner.
By this, a tree-owner may be found negligent if the tree or parts of the tree fall and cause damage to a neighbouring person or their property. For example, if a tree falls on a public road and causes an accident. The tree-owner would be liable for negligence provided that the tree was in a state of decay and its risk to road users was obvious, yet the tree-owner did not take reasonable steps to mitigate this obvious risk. If however, inspection found that the tree was apparently healthy and structurally sound to the knowledge of the tree-owner, they would not be held liable in negligence.
The Trees (Disputes Between Neighbours) Act 2006
In February 2007 the Trees (Disputes Between Neighbours) Act 2006 was passed to provide those living in an urban environment a more adequate dispute resolution process within the Land & Environment Court than was currently available under common law.
Stay tuned for next week’s blog! It offers an explanation of this separate statutory scheme which is now the primary process for the resolution of tree disputes between neighbours.
Found yourself in a tree dispute with a neighbour?
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Schmidt-Liermann Lawyers are experienced in acting for and advising Councils & Private Clients in a myriad of matters pertaining to tree disputes. We offer value and results-oriented legal services. Contact us today!
* This article does not represent legal advice and individuals or councils should obtain legal advice as early as possible for any legal issues with regard to tree disputes between neighbours.
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