This is an overview of the law which governs tree disputes between neighbours in urban Australia.
Topics covered are:
- How do trees cause disputes between neighbours?
- Is a Local Council permit required to prune or remove a tree?
- What can be done if the tree owner does not agree to prune or remove a tree?
- The common law right to prune overhanging tree branches
- Court orders to prune and remove trees under the Trees Act
- Links to more detailed analyses
How do trees cause disputes between neighbours?
Every part of a tree can cause disputes – the branches, the tree trunk and the roots.
Here are some examples of how they cause disputes:
- overhanging branches are hitting a roof, breaking roof tiles, damaging gutters and skylights, and beating against walls and windows, when it’s windy
- overhanging branches are shading a yard, a garden, a vegetable patch or a lawn, making it hard to grow anything
- overhanging branches have fallen causing damage to a clothesline or air-conditioning unit
- overhanging branches are overextended, the tree crown has deadwood, increasing the likelihood of falling, causing injury to a person
- berries, twigs and leaves constantly fall, filling the gutters, and making it necessary to constantly sweep the paths and clear the gutters
- tree trunks are growing on a boundary and are destroying the boundary fence
- roots are cracking a concrete driveway, lifting paving or blocking drains and sewer pipes
- roots are cracking the concrete floor and walls of a garage
- roots are destroying a retaining wall
- hedges are growing high enough to block sunlight to a dwelling
- hedges are growing high enough to block a view
What can be done about a ‘problem’ tree?
The starting point is to let the neighbour know about the problem. The neighbour’s responsibility to take action starts from that time.
Many neighbours act co-operatively, especially if minor pruning is all that is required.
It becomes more difficult if major pruning is required or if the tree needs to be removed because of aesthetics and the reluctance of the neighbour whose tree it is to bear the cost. It is in these situations tree disputes arise.
Is a Local Council permit required to prune or remove a tree?
If the plant is a tree located on private land, generally a Council permit is required to prune or remove it.
A permit can often be difficult to obtain because Councils are keen to preserve their ‘urban forests’ or ‘urban tree canopies’ Many Councils are targeting 40% tree cover while having only 15% - 20% existing tree cover.
Is it a tree?
A permit is only required if the plant is a tree. There is no standard definition of a tree. It depends on the Local Council definition. A tree can be ‘any woody perennial plant’ above 3 and to 6 metres high or with a trunk girth of between 0.1 to 1.0 metres or with a crown exceeding 3 to 4 metres in width. ‘Tree’ can include palms and vines.
If it is a tree, as a general rule, a permit is required to prune more than 10% of tree branches or tree roots. A permit is required to remove a tree.
Is it a ‘protected’ tree or an ‘exempt’ tree?
In considering an application for a permit, Local Councils distinguish between ‘protected’ trees and ‘exempt’ trees (i.e. trees exempt from protection).
Australian Natives are protected trees, especially trees that are indigenous in an area. For example, much of the Sydney Basin was turpentine-ironbark forest with indigenous trees such as Apple Gums, Grey Gums, Christmas Bush, Swamp Mahogany, Forest Red Gums, Grey Boxes, Tallowwood, Sydney Peppermint, Sydney Blue Gums and Christmas bush.
A Council permit is required to prune or remove a protected tree. As a rule, Local Councils will not consent to pruning or removal of a protected tree if the tree is healthy or if it is a heritage item or a significant tree. Local Councils will consent if the tree is diseased, damaged, dead or dying; threatens human life or is likely to damage property.
Introduced species are exempt trees. They are considered to be pests because they are invasive - they grow quickly, their roots spread and cause damage to property. Local Councils publish a list of exempt trees in their area. For example, Rubber trees, Indian Coral trees, Umbrella trees, Cocos palms, Oleanders, Willows, Bamboo and Camphor Laurel.
A Council permit is not required to prune or remove an exempt tree.
Some exempt trees are noxious trees. For example, Chinaberry trees, Tree of Heaven, Rhus trees, African Olives and Privet. No Council permit is required to remove noxious trees. Not only is a permit not required but a Council can order a land owner to remove noxious trees.
Some trees are neither protected trees or exempt trees. For example: Jacarandas, Liquidambars, Oaks, Silver Birches and Leighton Greens are introduced species but are acceptable. Council consent is needed for their pruning and removal.
How is the permit obtained?
Only a tree owner can make an application for a tree permit– a neighbour is not entitled to make an application without the tree owner’s consent.
An application form needs to be lodged by the owner of the property on which the tree grows, or their legally authorised representative. In strata schemes, the owners corporation generally makes the application although a unit or townhouse owner may make the application, with the consent of the owners corporation.
All applications are subject to Council's Tree Protection/Preservation Orders that protect and preserve the tree species important to the local area i.e. the protected trees.
The Council will more favorably consider an application for pruning if it is supported by an arborist report. The arborist might point to deadwood in the crown, overextended branches or branches directly overhanging the roof of a residence or commercial building, to justify pruning.
If Council does give approval to pruning, then it will require the pruning to be carried out within the guidelines of the Australian Standard: ‘Pruning of Amenity Trees’ (AS 4373-2007).
If the tree is dead, diseased or dying, or is posing an imminent threat to human life or substantial property, then Council will issue a removal permit even if it is a protected tree. Again, an arborist report will assist.
Many Councils will grant a removal permit if the tree is located within 2 (or 3) metres of a dwelling house or garage located within the same land allotment as the tree. Most Councils will make it a condition that a replacement tree to be planted.
In heritage/conservation areas, Development Consent is required to prune or remove a tree.
If the tree is an exempt tree or a noxious tree or is in a bushfire prone area, Council will issue a removal permit without needing justification.
Failure to obtain a permit can incur substantial fines.
In the past few years, urban Councils are granting fewer and fewer permits to remove trees because on an increasing emphasis in their Vegetation/Tree Management Plans to conserve and enhance the tree scape and environmental amenity of the local area.
In inner-city Sydney, Local Councils are wanting to create an ‘urban forest’ by increasing the ‘urban canopy’ by 40%. If consent is granted to removal of tree, it will be made conditional upon planting a suitable replacement. As the Inner West Council says on its website: “The best time to plant a tree was 50 years ago... the second-best time is now!”
The important point to note is that if the tree owner is co-operative, and Council issues a permit, then the tree can be pruned or removed.
Urban Tree Canopy
What can be done if the tree owner does not agree to prune or remove a tree?
The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way.
- William Blake, 1799, The Letters
Tree owners can become very ‘attached’ to their trees. That might be because they like the privacy that trees provide, or because trees are peaceful to look at and provide a habitat for birds and animals. Or it might be that they may not wish to spend the money to prune or remove their tree, simply to give their neighbour better amenity (quality of life).
If the tree owner does not agree to prune or remove the tree, the neighbour has two options:
- to prune the overhanging branches (and encroaching roots) themselves under the common law; and
- to force the tree owner to prune or remove the tree by obtaining Court orders under the Trees Act.
The common law right to prune overhanging tree branches
The common law regards tree branches overhanging a property as a nuisance to a neighbour, because the overhanging branches affect their ‘amenity’. Loss of amenity is caused when trees: cast shade, cause grass to die off, restrict light so that vegetable gardens do not grow, drop leaves into swimming pools, fill roof gutters with leaves, twigs and berries, block sunlight to a room in a house or block a view.
The common law gives the neighbour to the right to prune the branches to abate the nuisance (‘abate’ means ‘remove’). As Justice Best said in the 1823 decision of The Earl of Lonsdale v Nelson:
If another man’s tree overhangs my land, I may lawfully cut the overhanging branches.
These rules apply to using the right to prune overhanging branches today:
- A neighbour has the right to ‘abate the nuisance’, that is, to prune the tree or trim the hedge branches if the branches encroach on their property. Nothing more is required. There is no need to show that the tree or hedge is causing any harm. Encroachment is enough.
- The right is to prune the branches to the boundary line of the property. The pruning needs to be done without entering into the tree owner’s land, unless the owner’s permission has been obtained to enter the land, or it is an emergency. It is trespass to enter onto the tree owner’s land to carry out pruning without permission.
- The pruning should be carried out without injuring the tree or hedge. Pruning should be carried out within the guidelines of the Australian Standard: ‘Pruning of Amenity Trees’ (AS 4373-2007). Unless the pruning is minor, a qualified arborist should be engaged to shape the tree correctly because poor pruning can damage a tree.
- Some Local Council websites state that the tree owner’s permission is needed to prune overhanging branches. This is not correct. In a recent decision of the NSW Supreme Court of Donnellan v Cadeddu, Justice White applied the 127-year-old precedent of Lemmon v Webb which stated that no permission is required to be obtained from the tree owner. Note – the common law develops by way of precedent decisions such as these because it is judge-made law.
- While asking permission is not a legal necessity, it is ‘neighbourly’ to let the neighbour (the tree owner) know that branches of their tree will be pruned, so as to give the neighbour (the tree owner) the opportunity to do so themselves.
- The neighbour who prunes should return the pruned branches and leaves to the tree or hedge owner, because the tree branches or hedge clippings belong to the tree or hedge owner. If the branches have fruit or flowers (including any fruit or flowers which have fallen), or if the wood is valuable, the neighbour must return them to the tree owner to avoid legal liability for taking or keeping them.
- Justice White said that a neighbour does not need to go to any more trouble to dispose of the trimmings than to deposit them over the fence. Again, while not a legal necessity, it is ‘neighbourly’ to ‘offer’ the trimmings to the neighbour whose tree or hedge it is (the tree or hedge owner). The ‘offer’ might be to deposit the trimmings in the tree or hedge owner’s garden organics (green lid) bin. If the tree or hedge owner rejects or does not respond to the ‘offer’, then the neighbour who prunes can dispose of the trimmings themselves. The ‘offer’ might best be in writing in the form of a note or an email.
- Abatement is a self-help remedy. It is to protect against the nuisance (the loss of amenity caused by the overhanging branch). The person pruning the branches bears the cost, unless the pruning is ordered by a court. In Queensland (but in no other State), the tree owner may be required to pay up to $300 of the cost of pruning without a court order if the tree owner has been given proper notice.
Exceptions to this rule apply if the tree is poisonous, in which case the tree owner is responsible to pay for the cost of pruning, if they planted the tree.
- If the neighbour wants to do more than prune the overhanging branches, such as to claim compensation for damage caused by the branches or wants an order that the neighbour prune a tree because it is dangerous, difficult to access or is a hedge which blocks sunlight or a view, or to pay for the pruning, then they need to make an application under the Trees Act (see below), if they are in New South Wales, Queensland or Tasmania.
- The common law right to prune overhanging branches is subject to Local Council requirements to obtain a permit to prune. A Court order made under the Trees Act will replace a Council permit.
- These same rules apply to pruning encroaching roots as they do to pruning overhanging branches. It is permissible to install root barriers inside the boundary (not on the tree owner’s side) to prevent the spread of roots. As a rule of thumb, tree roots will spread to the extent of the canopy (the ‘drip line’). The structural root zone is closer to the trunk than the drip line. It is important not to cut roots inside the structural root zone, so as to not destabilise the tree.
- Damage caused by branches falling from a tree owner’s tree on a house, garage, shed or fence is covered by the neighbour’s homeowner’s building insurance. Damage caused by tree roots from a tree owner’s tree is not covered by insurance (it is a policy exclusion).
Court orders to prune and remove trees under the Trees Law
In Victoria, South Australia and Western Australia, the common law of private nuisance is the sole law that applies. There is no specific legislation dealing with tree disputes. Because the common law remedies are complex and the procedure is costly, neighbours are encouraged to mediate. It’s also worth finding out whether a tree permit will be needed from the Local Council and asking advice from an arborist.
In Victoria, the Victorian Law Reform Commission has recommended a new law to deal with Neighbourhood Tree Disputes.
In New South Wales, Queensland and Tasmania specific legislation exists. In NSW it is the Trees (Disputes Between Neighbours) Act 2006, in Queensland it is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and in Tasmania it is the Neighbourhood Disputes about Plants Act 2017 (the Trees Act).
The Trees Act gives neighbours specific rights and a simplified procedure to enforce their rights to force a tree owner to prune or remove their tree. It embodies the same principles as the common law. But the Trees Act goes further in that it gives rights to prune or remove high hedges which obstruct sunlight or a view.
The Trees Act:
- applies to urban trees in residential and business areas, not to trees on rural land
- applies to all woody perennials, including palms, bamboo vines and plants such as bananas, not just trees covered by Council Tree Protection/Preservation Orders or permit requirements
- allows for orders for branches overhanging the boundary to be pruned by the tree owner
- allows for orders for trees to be removed by the tree owner, if they are likely to cause serious injury to a person
- allows for orders for trees to be pruned by tree owner if they have caused or are likely to cause serious damage to a building within the next 12 months
- allows for orders for trees or hedges to be pruned or removed by the tree or hedge owner to avoid severe obstruction of sunlight to a window or glass doors; and in Queensland, to solar panels or TV antennas on a roof, and in NSW to a skylight in a roof
- allows for orders for trees and hedges to be pruned or removed by the tree or hedge owner to prevent severe obstruction of a view from a dwelling, if the view existed when the neighbour took possession of the land - in Queensland this right to a view applies to trees, in NSW, this right to a view applies to high hedges (at least two trees at least 2.5 metres high)
- allows for orders to be made requiring the land owner to prune a tree or hedge regularly
- allows for orders to be made requiring the tree owner to pay compensation for the damage caused by the tree to the neighbour’s building and improvements
- allows Council tree preservation / tree protection orders and heritage orders to be overridden by court orders
- allows for orders to plant more suitable trees, to replace the trees removed
- allows for orders to be made that the tree owner pays for the cost of pruning or removal of their tree, unless the neighbour has contributed to the problem, in which case the neighbour might be ordered to contribute part of the cost
In NSW, the Land and Environment Court (NSWLEC) makes orders to prune or remove trees, and for payment of compensation for damage or injury caused by trees.
In Queensland, the Queensland Civil and Administrative Tribunal (QCAT) and in Tasmania, the Tasmanian Civil and Administrative Tribunal (TASCAT), make similar orders.
In all states, the next door neighbour is encouraged to make reasonable efforts to reach agreement with the tree owner before going to court.
Are you looking for a more detailed analysis?
I have prepared five in-depth articles which you can access by clicking the link. They contain analyses of NSW law and many case studies:
- What can you do if branches from a neighbour's tree overhang your property and spoil the enjoyment of your yard or overhang your roof?
Find out what you can do in - What can you do if a tree branch looks like it might fall or that a tree trunk is growing too close and is damaging your property?
Find out what you can do in - What can you do if tree roots from a neighbour's tree are damaging your property or sewer lines?
Find out what you can do in - What can you do if it looks like a tree or tree branch might fall and cause injury?
Find out what you can do in - What can you do if you are you suffering a severe obstruction of your sunlight or a view from a high hedge?
Find out what you can do