Disputes About Trees

Disputes About Trees

If you or someone you know is involved in a dispute about a tree (or trees) then you may like to read on.

Disputes involving trees (whether blocking the sun, an overhanging branch, or invading roots etc) are surprisingly common and often arise between neighbours (or on occasion with a local government). Damage caused by a tree can be costly to repair, especially where roots have damaged foundations, blocked drains or lifted paving. If you have already tried talking to your neighbour about the problem but have been unable to resolve it, you may need to consider your next steps carefully, ideally before taking your own action.

First, in the case of some (ordinarily old) trees, a tree preservation order may be in place with the local government. Tree preservation orders are intended to protect certain trees and contravening one without first obtaining a permit can (and does) result in an infringement notice or prosecution. However, if a tree preservation order is not in place then generally speaking you may cut back a branch or root to the boundary line where it enters your property. Keep in mind that if that action may cause significant damage to the tree it is sensible to first tell your neighbour and get them to arrange for the branches or roots to be pruned at their own cost. You should also note that you are not allowed to poison the neighbour’s tree or any roots that are on your property or enter your neighbour’s property without their prior agreement (even if it is only to prune branches along the boundary).

Second, once you have notified your neighbour of the problem/s caused by their tree, they have a responsibility to take action so the problem does not continue or get worse. Whilst in practice, most people bear their own cost of pruning trees (even overhanging from a neighbouring property), the property owner whose property the tree is growing on can be responsible for paying maintenance or repair costs. As such, if possible you should first discuss any significant problem with your neighbour and agree on who will pay. If you intend to seek a costs contribution (whether in whole or part) from your neighbour then you ought to discuss any works with them before you start the job or engage a contractor as your neighbour may want to organise or perform the works themselves. If you hire someone before telling your neighbour, your neighbour may then dispute whether the cost incurred was reasonable and you may end up in a court dispute. As such, it is sensible to put any request to a neighbour for a costs contribution (along with the description of the required works) in writing (usually a letter) so that there is a clear record of what was intended. As a tip, provide your neighbour with a reasonable amount of time (unless it is an emergency situation) in which to respond and not expect them to respond immediately. Further, you should also provide your neighbour with any supporting documents such as photos of the problem/damage and copies of any quotes for the required maintenance or repair works.

Ultimately, if you cannot reach an amicable resolution with your neighbour then you may need to seek court orders about the works and who is to pay what. Doing so before you commence works is likely to be more cost effective than ending up in a court action after the fact. Further, if you end up being prosecuted by your local government for taking unauthorised actions, the potential fines can be significant, particularly when there was prior knowledge of a preservation order being in place.

Finally, if you have read this far and think that you will need some practical advice about your situation, then now is probably the time to get in touch. The above is general advice only and by no means comprehensive. Austral Legal can help explain some of the finer details which may apply in your case and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office to discuss your situation.

Bookings can be made online through our website or simply by phoning the office on 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.