For the past 20 or so years we have been motivated to plant trees for the good of our children and the survival of future generations but no one stops to ask the question “what trees are suitable for the location they are being planted”. It’s all good and well to go down to the nursery and selecting trees after watching Better Homes and Gardens but little thought is given to what will happen in 10 or 20 years time when you get a letter in the mail demanding compensation for rectification works to repair the council footpath, the neighbour’s house foundations or the communal storm water pipe.

Tree disputes are becoming more and more common but what to do about them and knowing your rights and obligations is complex and confusing. If you talk to someone it’s like the subject is cloaked in mystery. Everyone has an opinion but no one really knows for sure what the legal ramifications are. Then there’s the question of who to turn to for legal advice. Most suburban solicitors have little experience in the matter and will charge you a substantial fee for them to provide legal advice. (In many cases they charge you a premium to learn about legal precedence that they know little about.) If by chance you did find an experienced solicitor with expertise on the subject you’ll probably find that the cost for them to represent you may actually be more than the claim you are defending.

In the past action was sort through the civil courts and more recently Land and Environment Court which are extremely expensive, stressful and time consuming. Like most things in life, prevention is always better than the cure. So always seek professional advice before planting a tree and ensure that you obtain details from your local council regarding where utilities and services are located. Most council s offer a free consultation service with a qualified botanist who can help you select the right tree and determine the correct location where you, the tree and the neighbours can all live in peace and harmony (well at least in theory).

We’ve been dealing with tree disputes in one form or another almost on a monthly basis and we pride ourselves in avoiding legal action being taken or compensation sort for damages caused by trees to neighbouring properties.

There is a governing Act which deals with tree disputes between neighbours the Trees (Disputes Between Neighbours) Act 2006. Unfortunately there is no quick and easy rule that applies in all situations so we have put together a general guideline which may be useful in helping you to understand your rights and obligations. Please note that you should always seek legal advice and you should not rely on this information.

When courts assess tree disputes they are required to assess the application in accordance with Clause 10(2) of the Trees (Disputes Between Neighbours) Act 2006 as to whether it satisfies the following tests:

The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person

It is clear what ‘caused’ and ‘is causing’ means.

But ‘likely in the near future’ is not so clear. So what does it mean?

This requires an assessment by the court of both the

i)     probability of damage being caused (“likely”) and

ii)    the time frame within which it would occur (“in the near future”).

Questions of probability

This will require consideration of a wide range of matters specific to the particular tree and its context. These will include the species, age and condition of the tree and any matters arising out of its location such as the property (both real and personal) in the area near the tree.

Near Future

The term “in the near future” is not defined in the Act. The adoption of a 12 month rule of thumb period by the court means that the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied).

This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property.

Other matters you may need to consider are:

Was the tree there first?

The court will consider this when determining who should pay for any works or removal of a tree.

For more information click here

Urban trees and ordinary maintenance issues?

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

For more information click here

We have also provided more detailed notes which explain:

• How the Trees Act works;
• What the Land and Environment Court can do;
• How to make an application;
• How the application will be dealt with; and
• What happens if the Court makes any order.

Click here to view