You can also contact a Community Justice Centre for mediation with your neighbour about your concerns. Part 2 – dealing with orders relating to damage to property and injury to people. Want to prune overhanging branches from a neighbour’s tree in the City of Sydney area? This doesn’t mean the trees must form neat lines, for example, they can form a triangular shape (, Concerning a severe obstruction of sunlight, the obstruction of sunlight must be to a window. You can only apply to the court if you've already made a reasonable attempt to resolve the situation. Injury includes illnesses, allergic reactions and other similar conditions (, Mere annoyance or discomfort is not enough to justify the granting of an order (, There must be a likely risk of injury not just a fear of injury (, To establish a likely risk of injury it will not be enough to provide internet literature, or a council listing of a particular type of tree as undesirable. A Part 2A order is not available where a single tree is causing the obstruction. Also, for the Court to issue an order against a party concerning a tree on their land, the tree must be located wholly or mainly on their land, that is, where at least fifty per cent of the tree’s trunk enters the ground (Trees Act, section 4(3))(Brown v Weaver [2007] NSWLEC 738; Drolz v Sinclair [2008] NSWLEC 34; Inbari v Rankin [2010] NSWLEC 1236). Ms Anderson was agreeable about removing the tree but would not agree to paying for it or paying for repairs to the wall. Always remember - the situation is more likely to be resolved if you approach it fully informed and ready to negotiate. If the property where the tree is located is sold during proceedings under the Trees Act, the Court may require the purchaser be notified and have the opportunity of being added as a party to the proceedings (Haindl v Daisch [2011] NSWLEC 1145). If the tree is unstable or unsafe, then you might have a fighting chance. You can be fined if you breach a Tree Preservation Order. If mediation fails, property owners can apply to the NSW Land and Environment Court to resolve the matter. NSW WeedWise profiles over 300 high risk plants, giving details of the plant’s description, the type of biosecurity risk it poses, any duty imposed to reduce or eradicate the risk, as well as various methods to control it. The Land and Environment Court. rise to a height of at least 2.5 metres above existing ground level (section 14A(1)). Under the Trees (Disputes Between Neighbours) Act 2006 (NSW), you can apply to the Land and Environment Court for an order to “remedy, restrain or prevent damage to property on the land, or prevent injury to any person” relating to a tree in a neighbouring residential area. As a result, in most parts of NSW, you have to obtain consent from a neighbour before you can cut their overhanging trees. In some instances, the tree may be obstructing a neighbour’s view. A trained mediator will meet with you and your neighbour to discuss the problem and help you to resolve it. For example, in urban areas, the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, called the Vegetation SEPP, requires landowners to obtain consent from local council before removing vegetation on their land. Under the Act, the Court can order a range of actions to stop, prevent or remedy the harm or obstruction. Assess the impact for the whole property, not just the view that is affected and assess it qualitatively as negligible, minor, moderate, severe or devastating. There is also the duty to notify of the presence or suspected presence of prohibited matter, listed in Schedule 2 of the Act (Part 4). the obstruction is so severe or of such a nature that the applicant’s need to remedy the situation outweighs the undesirability of interfering with the trees (section 14E). Try to negotiate a solution that satisfies you both. NSW Local Land Services are responsible for co-ordinating Regional Weed and Pest Animal Committees that develop Regional Strategic Weed Management Plans and Regional Strategic Pest Animal Plans. Since 1 July 2017 the Biosecurity Act 2015 (NSW) and Biosecurity Regulation 2017 (NSW) have replaced the Noxious Weeds Act 1993. The SES attended and managed to cut dangerous branches and erect a tarpaulin over the affected parts of the house. The Act and regulation defines ‘tree’ as including bamboo, tiger vines/giant clumping grass and vines as well as any woody perennial plant (shrub) (Lentfer v Hopkins [2008] NSWLEC 1452) or plant that resembles a tree (Trees Act, section 3 and Trees (Disputes between Neighbours) Regulation 2019, reg 4). He contacted the Community Justice Centre and asked about mediation. What you can legally do yourself If you have a neighbour’s tree hanging over your land, you can: exercise the common law right of abatement—your right to remove overhanging branches and roots to your boundary line decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. The person applying for the Part 2 order must give 21 days notice of the application (including the terms of the order sought) to the owner of the land where the tree is located and to any relevant authority that may become involved in the proceedings and any other person that may be affected by the order. But the Rappos refused. An order to shift the loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just’. They immediately contacted their neighbour, Ms Anderson, about the crack as they believed it was caused by the Kaffir Plum tree on her property. Under NSW laws, councils do not have the authority to order a resident to prune or remove a tree, if it's impacting on a neighbouring property. He found out from his local council that a permit would be needed for the pruning work and Tom’s consent to the work would also be needed.Â. Conflicts involving trees and neighbors are best resolved through communication, but there are laws covering these types of situations. Published by the Legal Information Access Centre (LIAC), State Library of New South Wales. If appropriate in the circumstances, the Court has the power to waive or to change the notice requirements (section 14C). We will also notify your neighbour of your application and they will be given 14 days to comment before it's determined. From all the evidence the Court was satisfied that the growth of the tree and its root system were the main, if not the sole cause of the cracking in the wall and should be removed. any steps taken by the applicant or the owner of the land that the tree is on, to prevent or rectify the damage or prevent the injury. Under the Biosecurity Act, all plants are assessable for their biosecurity risk. Check the RFS website and contact the local Fire Brigade Caption or Fire Control Officer. To take advantage of the sunlight and expansive views, the living room and kitchen, with its large windows as well as an outdoor raised deck, are located at the rear. 2] [2007] NSWLEC 513, Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108, Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. The Court is able to waive this requirement if it thinks that it isappropriate in the circumstances (18). The Trees (Disputes Between Neighbours) Act 2006, called the ‘Trees Act’, provides a much cheaper and simpler method for resolving some of the tree disputes between neighbours than the legal remedy that was previously available. Ms Ingham tried unsuccessfully to reach an agreement with both neighbours to prune their hedges and eventually she applied to the Land and Environment Court for an order under the Trees Act. Environmental Planning and Assessment Act 1979, Trees (Disputes Between Neighbours) Act 2006, Trees (Disputes Between Neighbours) Regulation 2019, Uniform Civil Procedure Rules 2005 - Expert Witness Code of conduct in Schedule 7. the location of the trees in relation to the boundary and the dwelling, whether the trees existed before the dwelling (or window), whether the trees have grown to a height of 2.5 metres or more since the applicant purchased or occupied the dwelling, whether interference with the trees would normally require consent from the local council or the Heritage Council and if so, whether it has been obtained, whether there are any other development consent requirements or conditions relating to either the applicant’s land or the land where the trees are located, whether the trees have historical, cultural, social or scientific value, the contribution of the trees to the local ecosystem and biodiversity, the contribution of the trees to the natural landscape and scenic value of the land and of the locality, the trees’ intrinsic value to public amenity, the trees’ impact on soil stability, the water table or other natural features of the land or locality, the impact that pruning would have on the trees, the trees’ contribution to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land where they are situated, anything other than the trees that has contributed or is contributing to the obstruction, any steps taken by the applicant or the owner of the land where the trees are located, to prevent or rectify the obstruction, the amount and number of hours per day, of any sunlight that is lost from from the obstruction throughout the year and the time of the year during which the sunlight is lost, whether the trees lose their leaves during certain times of the year and if so, for what portion of the year, the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view. 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