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Neighbourhood Watch

Neighbourhood Watch

By Victorian Legal Reform Commission

Dispute Resolution 


Snapshot The VLRC is reviewing neighbourhood tree disputes as a community law reform project. It aims to make recommendations that bring clarity, certainty and guidance. A consultation paper will be published in December. Neighbourhood watch How can the process for resolving tree disputes be improved? Any community member or group can make a proposal on a minor legal issue for a community law reform project. Minor means of limited size and scope, but does not reflect the impact that many of these topics have on the Victorian community. These proposals have led to a range of projects, including recommendations on broader access to birth registration and birth certificates, creating a wider network of support for young people in bail interviews, and creating binding funeral and burial instructions. Neighbourhood tree disputes project The VLRC’s current law reform project looks at how people resolve disputes about trees on private land which cause damage or injury. The central question is, how can the process for resolving tree disputes be made simpler and fairer? The VLRC has received a number of suggestions relating to possible reform in this area – many people are affected by tree disputes and disputes can quickly get out of hand. Disputes about trees causing damage or injury usually relate to encroachment onto a neighbour’s land. For example: roots spreading across boundaries, causing damage such as cracking pipes or foundations branches growing over fences, causing injuries or damage such as broken windows other encroachments such as dropping leaves or seeds, clogging gutters and spreading pollen. Each of these scenarios involves a balancing of the rights and responsibilities of the tree-owner and their neighbour. The VLRC’s current project is limited to disputes over trees that cause damage or injury and will not include rights to sunlight or views. Law and process in Victoria Currently in Victoria, people are encouraged to informally resolve their disputes with neighbours. However, this is often not possible, particularly where neighbours fundamentally disagree over who is responsible for taking action to mitigate risks or damage. Those involved often may not have a clear sense of their rights and responsibilities, making informal dispute resolution very difficult, and this can mean that relationships sour quickly. Dispute resolution is supported, free of charge, by the Dispute Settlement Service of Victoria. However, mediation is not always successful, particularly in long-running disputes, and parties may need to take their matter before a court. Neighbourhood tree disputes are currently governed by the common law, specifically the torts of nuisance and negligence. For example, encroaching branches may be deemed a nuisance by a court if found to be causing substantial and unreasonable interference with the use and enjoyment of land. Damages may be available where actual damage to property is shown, but it can be difficult to prove the cause of damage, and it is not uncommon for expert reports to conflict with one another. The common law does not provide much assistance in preventing damage, as generally a remedy is only available once the damage or interference has occurred. Seeking resolution in the courts is often costly, complex and time-consuming. Reviews in other Australian jurisdictions have canvassed similar issues, and have resulted in significant changes to the law, including replacing the common law with a simpler statutory approach. Tree disputes can arise in many contexts, and may have a variety of impacts on people across Victoria. As well as causing damage or difficulty, trees provide shade, ecological value, historical significance, biodiversity and oxygen. There are clear benefits to having trees in the urban environment, and some level of imposition is unavoidable when living in close proximity to other people. The VLRC aims to make recommendations for change that promote clarity, certainty and guidance for those seeking to come to fair compromises. The VLRC will be seeking community views on the current system and ideas for reforms that help people to resolve their own disputes fairly and provide supported steps for further resolution where this is not possible. A consultation paper, setting out the law, process and initial options for reform will be published in December 2017. The VLRC will then consult widely across Victoria, and welcome submissions and contact from those with experience in this area. Further information is available at www.lawreform.vic.gov.au. This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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