Trees

By {mds} law, published on: 3/08/2012
Neighbourhoods need trees.  They provide food and shelter for birdlife, improve the quality of the air and beautify the city and landscape.  Unfortunately they can also cause problems between neighbours – they can block the sun, damage drains and fences, and cause damage from falling branches.  
 
A tree on your property is your responsibility. If it causes damage to a neighbouring property through a falling branch, or roots damaging your neighbour’s drains, then you are liable for the repair costs.  
 
If branches or roots of neighbouring trees are encroaching on your land you can cut them back to the boundary line.  You are not allowed to remove any part of the tree or roots on your neighbour’s side of the boundary.  If you use poison on the roots and the tree dies you may have to compensate your neighbour for the loss of the tree.  Cuttings and fruit remain the property of the tree owner and you can put them back on the property, or ask for them to be removed.  
 
If neighbouring trees are causing problems the first step is to talk to your neighbours and to try and resolve the matter. This is much less costly than resorting to legal action which will most likely destroy any neighbourly goodwill.  The Council will not become involved in disputes between neighbours about trees, unless a tree is overhanging a public place such as a footpath.  If that is the case the Council will request the tree be trimmed back.  
 
Not every tree blocking sunlight needs to be felled – thinning or pruning can be an effective solution, resulting in the tree and its benefits being saved.
 
If a tree owner and neighbour cannot agree on a solution to a tree problem there are a number of courses of action available.  
 

Mediation/arbitration  

A mediator helps negotiate solutions to disputes but neither party can be forced to take part in the process. A mediator will help negotiate a solution, whereas an arbitrator will impose a solution.  Mediation can only be enforced if enforcement procedures are included in the agreement reached, but the courts will back an arbitrated settlement.
 

Disputes Tribunal  

The tribunal can hear claims for damage to a property up to $15,000 ($20,000 if the parties agree).  This would be in cases where damage has occurred to drains, driveways, foundations or fences.  If the dispute is about loss of light, sunshine or views, or involves the removal or trimming of a tree, the matter would have to go to the District Court.
 

District Court  

The Court can order a tree be removed, and award monetary compensation for damage caused by a tree.  A solicitor will be needed and it can be an expensive exercise.  A court will consider whether there is any actual or potential danger to life, health or property, any undue obstruction of your view, loss of sunlight, the value of your property being reduced and any other undue interference with the reasonable enjoyment of your land for residential purposes. It will also take into account the public interest in maintaining an aesthetically pleasing environment, desirability of protecting public reserves, value of the tree as a public amenity, historical or cultural significance of the tree, and when you began living on the property and when the problem with the tree began.  
 
If you are successful in obtaining a Court order for removal or trimming of a tree, you as the applicant must pay the reasonable cost of the necessary work, unless the court thinks it is fair for your neighbour to pay for some or all of the cost.
 
Please contact us for advice or further information about our services.

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