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What is the law regarding trees and plants intruding onto your property?
According to the law, you own the airspace above your land and the earth beneath your land (subject to special government laws on airspace etc). However, dealing with a neighbour can lead to difficulties in deciding what should be done and who should pay for it. The law leaves it up to neighbours to work this out, giving some rights to those affected by problem trees but no clear responsibility to owners to pay for these costs.
Your best option is to try and reach an agreement with your neighbour about what should be done before lopping offending trees. If you are having difficulties you should contact a Community Justice Centre. The CJC is a government funded organisation designed to assist people to resolve their problems by mediation. The service provided is free. Professionally trained mediators will sit down with the parties in an attempt to resolve the matter quickly and possibly save the parties legal costs which result from court action.
Select this link to for the contact details of NSW Community Justice Centres. Or see the Mediation section of this web site for information in other states.
Can I cut and remove any problem branches and roots?
If the problem branches or roots are spreading onto your property, you are entitled to cut them back. You are not entitled to prune more than 10 per cent of the tree and if the tree is protected you will need to get Council approval before you prune.
Matters to consider before talking to your neighbour about the problem:
• you could ask your neighbour to cut back the branches, rather than doing it yourself. As the branches are hanging over your property, your neighbour would be legally responsible for any damage caused to your property in the process of removing them.
• you could get a professional to do the work, pruning can be dangerous and permanent damage - to you and the tree - can occur if it is not done properly. However, professional tree surgeons and tree pruners can be expensive. You could ask your neighbour to pay for it or share in the cost, but even though their tree is causing the problem, they are probably not legally obliged to pay for the work unless they have agreed to do this.
• if negotiations are not successful and your neighbour refuses to pay for all or part of the work, you can consider legal action to recover costs on the basis that the branches were causing a legal nuisance.
• if legal action is something you are considering it may be preferable at first instance to have your solicitor write a letter to your neighbour clarifying the parties legal responsibilities.
• if you decide to prune the tree yourself and do it carelessly, your neighbour could sue you for damage to the tree or for damage caused by falling branches.
• any roots, fruit, branches you remove from your neighbour’s tree remain your neighbour’s property. Legally you should return them. Don’t throw such things back over the fence, they should be placed neatly on an agreed site to stop any ill feeling between the parties.
What if I want to trim the branches but can only do it from my neighbour’s land?
Firstly, discuss it with your neighbour and ask for permission to enter onto their land. If permission is refused you can apply to a Local Court for an order granting access to your neighbour’s land under the Access to Neighbouring Land Act 2000. Before applying you must give at least 21 days notice of your intention to lodge the application to your neighbour. The Local Court has to be satisfied that there is substantial difficulty or unreasonable hardship. The court, if satisfied, can grant an order allowing you to cut back any tree or shrub.
What can I do about falling leaves, damage to pipes and dangerous trees?
There is no law making neighbours responsible for removing leaves which fall onto neighbouring property. If you are facing ongoing costs to clear gutters and drains it may be possible to reach an agreement with regard to costs with your neighbour. If your neighbour refuses and the damage involved is substantial you could take legal action under the law of nuisance. Nuisance is a technical area of the law and the legal term nuisance is different from the ordinary use of the word. A person can complain of nuisance only if damage is caused by some continuing or regular activity or occurrence on their neighbour’s land which the neighbour caused or did not try to prevent. It will not be a case of nuisance if:
• the neighbour’s activity is a reasonable use of their land and they have taken precautions to prevent any damage from occurring;
• the person who suffers the damage has put up with it without complaint for a long time;
• the person suffered the damage because they or their property are unusually sensitive.
• public authorities may sometimes be excused for causing a nuisance in the course of performing necessary work.
It is in your interest to notify your neighbour in writing of the damage being caused and giving your neighbour an opportunity to rectify the problem before commencing legal action.
If your neighbour is not prepared to pay for repairs it may be possible to sue under the law of negligence or nuisance. In order to take an action for negligence, you would need to prove that your neighbour knew about the problem and failed in their duty of care by not doing anything about it. As previously mentioned your first options should be discussions with your neighbour, referral to the Community Justice Centre or a letter from your solicitor.
If your neighbour’s tree is diseased or damaged and in danger of falling and you have not been able to reach an agreement with your neighbour, you are not legally entitled to take action yourself if the tree is on your neighbour’s property. If the tree is a danger to the safety of people, your local Council can order its removal. For people living in rural areas it may be possible to involve the Rural Fire Brigade, if the Rural Fire Brigade declare the tree a fire hazard and dangerous it has to be removed by the owner.
If there is a dangerous tree it may be wise to take the following precautions:
• put the request in writing to your neighbour and keep a copy. If the tree does damage your property, you have proof that your neighbour knew about the problem and this will assist in damages claimed for negligence.
where an impending damage would be irreparable it may be possible to apply to the Supreme Court for an injunction under the law of nuisance ordering your neighbour to take action to prevent future injury. Courts tend to only grant injunctions when damage has already occurred or is in the process of occurring, otherwise the burden of proof rests on you. The Supreme Court procedure can be complex, slow and very expensive. An interim injunction is only granted in urgent cases when the nuisance is serious. |
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