TREE DISPUTES BETWEEN NEIGHBOURS
New legislation came into effect on 2 February 2007 in the form of the TREES (DISPUTES BETWEEN NEIGHBORS) ACT 2006 (Act).
In the past, depending on the value of the claim, proceedings were brought in the Local Court, District Court or Supreme Court. These claims were based on common law actions for nuisance. The procedures were often protracted and costly and following the making of orders the permission of other authorities such as the Local Council had to be obtained before any orders made by the court could be carried out. An example of this was where Council had a tree preservation order in place under its Local Environmental Plan.
Under the Act, the Land and Environmental Court (“Court”) now has jurisdiction to make orders to remedy, restrain or prevent damage to property or injury to any person and to make compensation and rectification and costs orders. As a result there is now no need for other authorities’ permission (e.g. Local Council) to carry out any orders made by the Court.
The Court now provides a one stop shop for dispute resolution involving trees.
The main features of the Act are:
- It only applies to trees which are privately owned on land which is zoned “residential” (but not “rural-residential”), “village”, “township”, “industrial”, “business” or similar zones. It does not apply to trees on land owned or managed by Council and an application can only be made regarding trees that are situated wholly or principally on land which adjoins the land of the applicant to proceedings;
- No actions can be brought in nuisance resulting from the damage caused by a tree;
- Before the Court will make an order, an applicant must demonstrate to the Court that the applicant has made all reasonable efforts to reach agreement with the owner of land upon which the offending tree is situated, and given that owner notice of the application. The Court will also take into account such matters as the location of the tree in relation to the boundary and any premises; whether it has any historical, cultural, social or scientific value; whether where permission for its removal is required from any Authority such permission has been obtained; and any impact on soil stability, the water table or other natural features of the land or locality concerned (NOTE: this is not an exhaustive list of matters taken into consideration, just some examples – see section 12 of the Act); and;
- Failure to comply with any orders made by the Court can result in a maximum penalty of $110,000. Council is also empowered under the Act, at the request of the Applicant, to enter upon land to ascertain whether an owner has carried out any work order made by the Court. If Council then enters the land and carries out the work it can recover the costs from the offending land owner.
The application fee payable to the Court upon lodgment of an application is $180 for individuals and $360 for corporations.
For more information and assistance please contact David Buda tel: (02) 9957 4242; Email: dbuda@rbhm.com.au
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