Before pruning or removing a tree, check with Coffs Harbour City Council about any restrictions that may apply to the tree in question.
Approval may be required from Council for the removal of native vegetation.
Discuss your concerns with your neighbour.
If you can't talk to your neighbour, write them a letter. Outline your concerns including the impact the trees are having and any photos, arborists reports etc.
If your neighbour doesn't live at the property and you don't know their address, you can send your letter to Council with a cover letter requesting Council forward the letter to your neighbour on your behalf.
If your matter ends in court you will need to show physical evidence that you made 'reasonable efforts' to resolve the matter with your neighbour.
Be aware the laws regarding tree disputes are not always completely clear about levels of responsibility - especially costs.
If talking or letters do not resolve the issue, then you can access 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 or minimal costs.
The Community Justice Centres 1800 990 777 provides mediation as a free service.
Contact Council first to make sure the tree is not subject to any restriction.
On your side of the property line
If negotiation is not an option or fails, it is permissible, under the "right of abatement", to cut a neighbour's overhanging branches or intruding roots back to the property boundary line.
- 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 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.
On your neighbour's side of the property line
Crossing the common boundary without permission from your neighbour is trespassing.
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.
If the neighbour's tree has already caused damage to your property - such as lifted concrete driveways, damaged foundations or branches that have destroyed your roof, you can apply to the Local or Magistrates Court for an order requiring your neighbour to remove the tree. This is a Court proceeding and you will need to provide evidence.
You can go to the Land and Environment 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.
Note the Trees (Disputes between Neighbours) Bill 2006 applies only to trees on land identified as "residential", "village", "township", "industrial" or "business".
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.