Select from any of the filters or enter a search term
Calendar
Calendar

Turning over a new leaf

Turning over a new leaf

By Victorian Law Reform Commission

Dispute Resolution Environment Legislation 

0 Comments


The Victorian Law Reform Commission is seeking input into its inquiry into neighbourhood tree disputes.

Snapshot

  • The VLRC is reviewing the law of neighbourhood tree disputes.
  • A consultation paper is available online.
  • Submissions are invited in January and February

Have you been involved in a tree dispute with your neighbour, or represented a client involved in a tree dispute? Does the current process for resolving these disputes need to change?

The VLRC is seeking input into its inquiry into neighbourhood tree disputes. The inquiry relates to disputes about damage or harm caused by trees. It does not cover disputes concerning trees on public land or trees that obstruct access to sunlight and/or views. According to the Dispute Settlement Centre of Victoria (DSCV), tree disputes are the third most frequent complaint it receives calls about (after fences and antisocial behaviour).

Living in close proximity to your neighbours can provide reciprocal benefits such as sharing resources, keeping an eye on each other’s property and creating a sense of community. However, proximity also means that conflict may arise if a person maintains their land in ways that adversely affect their neighbours.

A tree that provides shade and privacy to its owner may cause damage and harm to a neighbour. When a tree is planted beside a fence, its roots may travel into a neighbour’s land searching for water, and cause cracking of paving or walls. The neighbour may suffer an injury when an overhanging branch falls, or suffer an asthmatic or allergic reaction during a tree’s pollination season. Neighbours may also perceive a risk of damage or injury occurring in the future. They may want a tree to be trimmed or removed by the owner, who may disagree and refuse to take action. Sometimes, tree disputes can quickly escalate into larger problems, involving violence and criminal charges.

The rights and responsibilities of tree owners and their neighbours, and their avenues of recourse, are largely governed by the common law. The most relevant legal principle is the tort of private nuisance, although negligence or trespass may also be applicable. It is a widely-held view in the community that the current law is confusing, expensive to enforce and ineffective.

An affected neighbour has certain rights, including the right to “abate”, that is to trim the encroaching parts of a tree, such as branches or roots, up to their boundary line. However, abatement may be expensive, particularly where the tree is large and work requires the specialist skills of an arborist. Trimming trees without expertise can injure or weaken the tree and increase the risk of resultant damage and/or harm. Costs generally cannot be recovered from the tree owner, and the trimmed parts of the tree must be returned to them to avoid further liability. In cases where trees are protected under local laws or other legislation, abatement may not be an option.

If an affected neighbour cannot abate, they can informally negotiate with the owner to reach a solution. They can also access the free resources and mediation services provided by the DSCV.

As a last resort, the affected neighbour can commence legal proceedings for nuisance. This is the most expensive and potentially stressful course, and the outcome is unpredictable. It can be difficult to prove that the nuisance is caused by trees, often requiring expert evidence from arborists, horticulturists, land surveyors, builders, plumbers and structural engineers. The legal costs can be prohibitive. The most common remedy sought in nuisance claims is an injunction, but in some cases parties may also seek damages.

New South Wales, Queensland and Tasmania have enacted legislation to deal with tree disputes. The legislation encourages informal resolution before legal action, and sets out the rights and responsibilities of tree owners so that neighbours are better equipped to negotiate with one another. It also creates statutory causes of action to be heard in each state’s relevant court or tribunal, for a standard fee and without the need for legal representation. Decision makers have specialist knowledge in areas such as arboriculture, environment and planning. A wide range of orders can be made in respect of the tree, such as orders to trim or remove it, perform seasonal inspections or pay compensation.

The VLRC has published a consultation paper which details the current law in Victoria and other Australian jurisdictions and sets out options for reform. It invites submissions from anyone with experience in or interest in this topic. Submissions may be made by email, mail, or via an online form on the VLRC website. For further information about the inquiry or to arrange a consultation, contact Community Law Reform manager Natalie Lilford at natalie.lilford@lawreform.vic.gov.au or ph 8608 7831. The consultation paper, a survey and a video explaining the issues can be viewed at www.lawreform.vic.gov.au. n

 

This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.


Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment