If a tree in a neighbour’s yard falls onto your house and smashes the roof, what can you do?
Killing the tree yourself, without a permit, or hiring someone to, is not the answer.
On the spot fines of $3000 can apply to individuals, and $6000 fines to companies, or penalties up to $1 million under the Environmental Planning and Assessment Act 1979 (the Act) can apply if you deal with a neighbour’s tree in an improper fashion.
The Trees (Disputes Between Neighbours) Act 2006 (NSW) governs the management of trees on private land.
Upon application, the Land and Environment Court can determine whether a tree will, or is likely to, cause damage or injury and whether high hedges obstruct sunlight or views. But neighbours have to try to sort it out first.
For tree damage to property or injury to the owner of the adjoining land, the Court must decide whether the tree has caused, or is likely to cause, ‘near future’ damage or injury.
Case law has established that the court will consider the ‘near future’ to be 12 months. The court must also determine whether notice of the lodging of the application has been given.
Should the court agree with the neighbour who initiated the court proceedings, it can order the neighbour to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, under section 9.
Orders can also compel monetary compensation for damage to property.
In 2024, a case emerged where a neighbour’s gumtree branch fell onto the adjoining property, damaging their neighbour’s trampoline. The court awarded an order of compensation worth $850 for damage caused.
A court can also order a hedge to be chopped back if it obstructs sunlight or views.
The obstruction must consist of two or more trees planted to form a hedge and reach a minimum height of 2.5 metres.
In addition, the obstruction must be severe in nature.
Severity is measured, per section 14E, by determining if the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees.
If the court is satisfied the obstruction is due to trees from adjoining land, an order to remedy, restrain or prevent a severe obstruction can be granted. However, these orders do not require payment of compensation.
A court can order that trees be maintained at a specific height, width or shape, or, the removal of a tree to be replaced with a different species.
A failure to follow any orders made by the court carries a maximum penalty of $110,000.
The recent case of L’Estrange v Cunial [2023] involved obstruction of views due to a hedge.
It should be front of mind that simply because you apply to the LEC for relief, success is not guaranteed.
Also, some tree crime can prove too difficult for authorities to solve.
In July 2023, 265 trees were reported to have been illegally killed along Willowie Road on Sydney’s North Shore
Despite Willoughby Council’s efforts of offering a reward of $10,000 to anyone with any information, a culprit was never found.
The Acting Commissioner of the LEC, David Galwey, was rather critical that “a matter that might have been reasonably resolved by a neighbourly discussion over the fence has progressed to court proceedings”, but ultimately found there to be an obstruction.
Mediation should be a first step.
For more information contact Nott and Co Lawyers, the best defence lawyers in Sydney.
