Tree Disputes - A New Remedy

The Trees (Disputes Between Neighbours) Act 2006 (the Act) commenced on 4 December 2006 and provides a new remedy for neighbourhood tree disputes.

Under the Act, the Land and Environment Court (the Court) has the power to make orders concerning trees that have caused, are causing, or are likely to cause damage to property, or are likely to cause injury to any person on land zoned residential, village, township, industrial or business or land having the substantial character of such a zone, with only minor exceptions. .

Land owners may now apply to the Court for an order to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of a tree that is wholly or principally situated on adjoining land. The Act allows an application to be made to the Court before any actual damage or loss occurs. Where the Act is available, the right to bring an action in nuisance will be abolished.

Before applying to the Court, the applicant must make a reasonable effort to resolve the matter with the tree owner and must provide 21 days' notice of the lodging of the application and the terms of any order sought to the tree owner, any relevant authority and anyone else that may be effected. The tree concerned must have caused, is causing, or is likely to cause damage to the property, or is likely to cause injury to any person. Obstruction of views or blocking natural light are not grounds upon which an order under the Act may be based.

The Court may consider a number of issues in making an order which may include the location of the tree, the intrinsic value of the tree, whether the tree has historical, cultural, social or scientific value. The court may also consider any contribution of the tree to the natural landscape and scenic value of the land on which the tree is situated.

The Court may make any order it deems fit to remedy, restrain or prevent damage to property or to prevent injury to any person. The maximum fine for failure to comply with an order is $110,000.

If, through non-compliance with the order made under the Act, the council is required to carry out the work required under the order, the council may recover its costs from the owner of the land on which the tree is situated. Compensation may also be awarded by the Court for any damage caused by a tree.
by Robert Riddell & Rob St Clair

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