Tree dispute with my neighbour – is there anything I can do to stop it falling on my house?
Below is a series of questions about a tree dispute with neighbours that our lawyer Adam Halstead answered at one of his latest radio interviews.
Q. The local area is known for its many trees, but my neighbour has a large tree that overhangs my property and looks like it might be dying – is there anything I can do to stop it falling on my house?
- Trees can be a common cause of disputes between neighbours.
- Legislation in NSW that deals with disputes about trees – the “Trees Act“.
- Allows landowner or occupier to apply to NSW Land and Environment Court for an order to prevent damage to property or injury to any person caused or likely to be caused by a tree on adjoining land.
Q. Does the Trees Act apply to all land?
- Applies to trees in areas of most land use zones:
- rural residential
- It does not apply to trees on council land
Q. Do I have to go to court for a tree dispute?
The Trees Act requires parties to have made a reasonable effort to reach an agreement before an order can be made. Like most other neighbour disputes – communication and a constructive approach are key. Going to court about a tree dispute with your neighbour should really be your last resort to resolve the issue.
Q. What if my neighbour will not agree to remove a dangerous tree – can I do it myself?
- NO – Get advice as there are many legal issues involved
- An application to the court may be needed
- Some areas have Tree preservation regulations in place that can add complexity
- You may need an expert opinion
Q. What can the court actually do?
The court can make orders to resolve the tree dispute such as:
- Removal of a tree and roots
- Prune overhanging tree limbs
- Pay for roofing work and replacement of tiles damaged by fallen tree limbs
- Pay for repair/replacement costs for sewer pipes, cracked walls or paths badly damaged by tree roots
- And, pay for installation of a root control barrier
The court can also make orders for repair of property or compensation for damage or injury even though the tree may have been already removed.
Q. When would the court make these types of orders?
The court cannot make an order unless reasonable effort to reach an agreement with the other party AND the tree has caused, is causing, or is likely, in the near future (in next 12 months) to cause damage or cause injury to any person. Damage must be directly caused by the tree and it cannot be minor or insignificant (eg: negligible or displacement of a fence) or be a likely risk of injury not just a fear of injury.
Q. Can I get an order to stop my neighbour’s leaves and branches falling on my roof?
The normal mess of leaf litter and debris associated with trees will generally not pose a risk of damage or injury. The court has emphasised the dropping of leaves, flowers, fruit, seeds or small amounts of deadwood will not usually justify an order to interfere with or remove a tree.
Q. What about if a neighbour builds their house under my established tree?
If your tree existed and their home could have been located elsewhere on the property or constructed it in such a way as to avoid future damage or risk of injury from the tree then the court may order the newer neighbour to contribute to the costs of the tree work or any repairs.
Q. Back to the original question – what should I you do about your neighbours dying tree?
You should discuss the tree with your neighbour and see if an agreement can be reached. If the agreement cannot be achieved, then get advice before your next move.
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