Dividing Fences and Trees -Part 2 – The Who, What and When

Tree

Trees in strata and community schemes can be a huge issue. Although we need them trees can cause neighbourhood disputes when they overhang or they interfere with your neighbours plumbing system, fence, retaining wall or even building foundations.

Thinking about cutting down a tree but haven’t obtained consent?

Don’t. What else can you do to make it safe? Generally, the risk of the tree falling down and injuring someone or their property is relatively low and the area can be cordoned off to prevent this. Removing, and in some cases pruning, a tree without consent is asking for trouble because people (and it may not necessarily be your neighbour) can get very emotional about their trees.

What can you do if you have a tree issue?

First, I suggest talking to your neighbour and trying to sort out the issue as they may not be aware that their tree is causing you concern. There is no point going to DEFCON 5 if a simple conversation can fix the problem.

If this doesn’t work then you have other options and you should consider getting legal advice. Why? If the tree is on someone else’s property you need their consent. Council consent may also be required. This can be a complex area with potentially the Local Government Act 1993 (NSW), the Trees (Disputes Between Neighbours) Act 2006 (NSW), Environmental Planning and Assessment Act 1979 (NSW) or the Protection of the Environment Operations Act 1997 (NSW) applying.

You second step should be to contact your local council and ask what its rules are in respect of tree removal and pruning and ask whether these rules apply to that particular tree. Council may refer you to a qualified arborist who can give advice on whether the tree is in fact causing the issue, whether it is a category of protected tree and whether it is causing a danger.

If you and your neighbour (or council) can’t agree on what needs to be done then you can seek orders in the Land and Environment Court. Although the process under the Trees (Disputes Between Neighbours) Act 2006 is relatively simple you need to make your application, supporting evidence and submissions as you don’t get a second chance so consider taking legal advice.

Six reasons why you shouldn’t just cut the tree down (or prune it)

  1. Your council, like the Newcastle City Council, may have strict regulations in relation to general tree removal. Also, the tree could be the subject of a preservation order made by council. Breaching council’s rules can lead to an on the spot fine or a claim being made against you in the Land and Environment Court.  As an indication, potential penalties if you are prosecuted by your council in the Local Court are up to $110,000 and up to $1.1M if you are prosecuted in the Land & Environment Court.
  2. In addition to potential council action, your neighbour could make a claim against you in the Land and Environment Court seeking compensation for their lost tree.
  3. If you enter your neighbour’s property without consent you are trespassing. This means that your neighbour can commence civil proceedings against you for your trespass and seek damages.
  4. Your personal safety (and that of your property). I know it is tempting to do it yourself but sometimes things are best left to the professionals. This includes using power tools like chainsaws at heights. Apart from your safety in physically cutting down the tree you may find yourself confronting a very angry neighbour or cause damage to your own or someone else’s property.
  5. Pruning a tree can sometimes exacerbate the problem. This is particularly so if the problem is root growth entering and disrupting plumbing systems. In this instance an arborist can be invaluable.
  6. Finally, it is relatively easy to comply with the law, there are also health and safety reasons for doing so and ignorance is no excuse.

 More information

If you have a specific issue you should obtain legal advice. You can also obtain further general information from your local Council or the Land and Environment Court’s website under its Trees and Hedges link http://www.lec.justice.nsw.gov.au/

Note: In a later blog I plan to tackle retaining walls and trees and privacy and sunlight concerns.

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