Neighbouring Trees causing damage
A land owner may apply to the Land & Environment Court for an order to prevent damage to property or injury people in relation to a tree on an adjoining land. Adjoining land generally means that there is a common boundary between them.
Making an Application
You must give your neighbours notice of your application at least 21 days before you lodge the application. It is recommended that you engage a Lawyer to prepare the Notice for you. Notice must also be given to any relevant government authority (normally the Council) and any other person who may be affected by the proposed Court Order (for example a tenant living on the neighbouring property).
The Court has fairly wide powers to make orders including the taking of specified action to remedy or prevent damage to property and to require your neighbour to make an application to obtain any consent or other authorisation from the Council.
The Court can also authorise people to enter your neighbour's property to carry out an order and to require the payment of costs associated with carrying out such work or payment of compensation for damage to property or require the replacement of any tree which is ordered to be removed.
Things that the Court must consider
Things that the Court must consider are:
- that the applicant has made a reasonable effort to reach agreement with the neighbour;
- that notice of the application has been given;
- that the tree concerned:
- has caused, is causing, or is likely to cause damage to your property, or
- is likely to cause injury to any person.
The Court must also consider:
- the location of the tree concerned (particularly in relation to the boundary);
- whether any consent/authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 is required;
- whether the tree has any historical, cultural, social or scientific value;
- any contribution of the tree to the local ecosystem and biodiversity;
- any contribution of the tree to the natural landscape and scenic value of the land or locality;
- the intrinsic value of the tree to public amenity;
- any impact of the tree on soil stability, the water table or other natural features of the land or locality;
- whether something else other than the tree has contributed, or is contributing, to the damage or injury to people and any steps you or your neighbour has taken to prevent or rectify the damage or injury;
- any other relevant matter.
If the tree is on Crown Land then separate rules apply.
The above is not legal advice and is only a brief summary of a complex area of Law. You must seek legal advice which is appropriate to your particular and specific circumstances.
Contact us to arrangement an appointment with one of our Lawyers.
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