Council's Role in Tree Disputes
It is important to note that approval may be required from Council for the removal of native vegetation.
- Step 1 - Talk openly and honestly about your concerns.
- Step 2 - Mediation
- Step 3 - Local Court
- Step 4 - Land & Environment Court
- Council's role in tree disputes
Try to avoid confrontation with neighbours by talking openly and honestly about your concerns. A friendly letter is also suggested if verbal communication is not within your best interests. Negotiate with your neighbours about the best solution to fix the problem.
The laws regarding tree disputes are not always completely clear about levels of responsibility - especially costs. It is always recommended that you check with Coffs Harbour City Council about any restrictions that may apply to the tree or trees in question.
Please Note If you are unable to contact your neighbour, either they do not live at the dwelling in question or the block is vacant land, Council can assist. If you draft a letter to the neighbour, Council will forward the correspondence on your behalf.
Make sure your letter discusses the issues regarding the tree or trees, what concerns you have and what the implications are. Also include your contact details and any attachments like arborist reports or photos.
Attach a cover letter directed to Council, requesting that the letter be passed on the landowner of the nominated property on your behalf.
If talking or letters do not solve the dispute, then you might like to seek the help of an independent person who can discuss the issues with both parties and point the way to agreement. The mediation process with your neighbour is not legally binding, is made in good faith and has no minimal costs. The Community Justice Centres (1800 990 777) can fulfil this function (refer to Community Justice Centre Information and contacts for more advice). If you feel that negotiation is not an option or has failed, it is permissible, under the "right of abatement", to cut a neighbour's overhanging branches or intruding roots back to the property boundary line. Make sure the tree is not subject to any restriction by Council prior to commencing works.
Please note the following considerations if you take this course of action:
- The neighbour is not obliged to contribute to the pruning cost.
- The neighbour owns the overhanging branch, fruit or root material.
- The person carrying out the pruning would be liable if the tree is damaged, as a result of the pruning.
Professional advice is also worthwhile. If you needlessly kill the tree or make it structurally unstable you may be liable. Even though you may have been entitled to cut off the branch overhanging the property boundary and the tree's death was unintentional, you may find you will have to compensate you neighbour. The removed limbs and roots remain the property of your neighbour - so set an agreement on the disposal of material with your neighbour prior to the start of any works.
Always remember - crossing the common boundary without permission from your neighbour is trespassing.
If the neighbour's tree has caused damage to your property - such as lifted concrete driveways, damaged foundations or branches that have destroyed your roof. The next step is to apply to the Local or Magistrates Court for an order requiring your neighbour to remove the tree. Just remember this involves court proceedings and evidence will need to be gathered. If a request to enter the neighbour's property to carry out the pruning is refused, an application may be made to the Local Court under the Access to Neighbouring Land Act 2000.
Access for pruning or removal of a neighbour's tree is considered under the Trees (Disputes between Neighbours) Bill 2006. Always remember - the situation is more likely to be resolved if you approach it fully informed and ready to negotiate.
The Land and Environment Court. The Trees (Disputes between Neighbours) Bill 2006 applies only to trees on land identified:
- as "residential", "village", "township", "industrial" or business" in Coffs Harbour. Under this action, the affected land owner may "...
apply to the Court for an order to remedy or prevent damage to property on the land, or to prevent injury to a person, as a consequence of a tree situated on adjoining land."
The Court must be satisfied with physical evidence that the affected landowner has made "...a reasonable effort..." to reach agreement with the neighbour and that the tree has caused, or is likely to cause, damage to property or injury to a person.
Under the Land and Environment Court's definitions, the following must be proven:
- A neighbour's tree may be considered to be causing a nuisance if its roots or leaves block or damage pipes or cause other damage. (Any activity that interferes with, or damages the right to enjoy or use one's property, is a nuisance).
- A neighbour may be considered to be negligent, and therefore liable if a tree or branches cause damage to an adjacent property, and no effort has been made to address the dangerous state of the tree.
Proving nuisance or negligence may be difficult, expensive and time-consuming. It is preferable to discuss any problems relating to trees with your neighbour before considering Court action.
Always consider mediation prior to considering court.