January 2007

New legislation to manage disputes between property owners over trees

Formerly, there was no practical way to resolve disputes between neighbours who could not agree about the benefits of, or danger posed by, particular trees. For various reasons, local councils are sometimes reluctant to become involved in such disputes.

The Trees (Disputes Between Neighbours) Act 2006 will commence operation on 2 February.

What remedies does the Act provide?

The Act provides for proceedings in the Land and Environment Court to resolve some disputes between neighbours in urban areas concerning trees causing damage or posing a danger.

The Act does not apply to disputes between neighbours concerning trees which block sunlight or views.

The Act applies only in relation to trees situated within residential, business and certain other urban zones. The Act does not apply to trees on land vested in or managed by a local council.

Proceedings would be less expensive and more accessible if applications could also be made to Local Courts but the Land and Environment Court has exclusive jurisdiction for the following reasons:

  • An award of compensation may be ordered.

  • The Land and Environment Court is a specialist tribunal and is better able to consider the environmental benefits of trees.

  • Legislation relating to native vegetation, tree preservation and local planning instruments will need to be considered.

Procedural Considerations

An applicant must first make a reasonable effort to reach an agreement with the owner of the land upon which the tree is situated. The Court may make orders under the Act to remedy, restrain or prevent damage to property, or to prevent injury, as a consequence of a tree situated on adjoining land.

When deciding whether to make an order, the Land and Environment Court must consider various factors including:

  • whether any applicable consent to interfere with the tree has been obtained,

  • any environmental, historical, cultural, social or scientific value the tree may have,

  • any contribution of the tree to the natural landscape and scenic value of the locality or the land on which it is situated,

  • any impact of the tree on soil stability, the water table or other natural features of the land or locality,

  • other factors contributing to the damage,

  • any action the tree owner has taken to prevent damage to property or injury to a person.

Changes to conveyancing practice

Orders made by the Land and Environment Court under the Act will run with the land. A purchaser for example, may be required to carry out work as directed by the Land and Environment Court where the person who sold the land had not carried out the Court's orders.

The Act requires vendors to give a warranty regarding any orders made under the Act. Local councils will be required to include on section 149 planning certificates information regarding orders made under the Act.

Vendors, purchasers and their legal representatives will have yet another checklist item to contend with when buying and selling urban land.