Trees are a common source of neighbour disputes. Branches or roots can cause damage to a neighbour’s property or even injury and depending on the season dropping fruit or leaves can also cause a nuisance.

A client of ours recently inquired about liability for damage caused to a neighbour’s driveway caused by the roots of the client’s tree that had encroached into the neighbour’s property.

Despite the fact that trees are a very common source of neighbour’s dispute, there is not much written about the issues. The main sources worth referring to in Victoria are:

1. “Trees and the Law” – P. Hamilton, Law Institute Journal, December 1996 at pp. 24 – 31
2. “Trees and the Law – Part 2″ – P. Hamilton, Law Institute Journal, March 2000 at pp. 73 – 76
3. “Suburban backyard environmental problems: confrontation or compromise” – Molesworth SR at pp. 643 – 648
4. City of Richmond v Scantelbury [1991] 2 VR 38

Basically, trees encroaching onto a neighbour’s property are a private nuisance at law. The affected neighbour is allowed to use self-help as a remedy for instance cutting the overhanging branch or removing the encroaching root without obtaining the consent of the neighbour who owns the tree. As a practical matter of good neighbourly relations, it is recommended that such action be discussed with the neighbour before hand. Please note that the law does not allow entry to the neighbour’s land for the purpose of abatement of the nuisance. Additionally, one needs to take care in case the removal of the root should cause the tree to topple onto the neighbour’s house and cause damage to property or injury to persons. The removed branches, fruit, roots, etc. must be returned to the neighbour who owns the trees as these are the neighbour’s property.

In City of Richmond v Scantelbury the Court held that a plaintiff could not recover the cost of the abatement. Therefore unless the neighbour has agreed to cover the costs before the work is done, a Court injunction needs to be obtained ordering the neighbour to arrange for the nuisance to be abated (i.e. tree pruned or root removed) and  damages for any actual damage to property (e.g. cracked driveway) need to be sought at the same time.

In plain English, unless the neighbour has agreed in advance (preferably in writing) to pay for the work, they will not be liable to pay you for it. If your neighbour does not agree to pay, to recover the costs of removing the overhanging branch or encroaching root, you need to instruct your solicitor to act and a Court order will be required if the neighbour still refuses. Only once you have the neighbour’s written consent or a Court order should you go ahead with the work.

Also worth noting is the danger of poisonous trees that overhang your neighbour’s garden, which could be dangerous to the neigbour’s children, you are advised to ensure that the branches of any tree with poisonous fruit or foliage be trimmed back to ensure they do not overhang. Conversely, action can be taken under the Health Act 1958 (Vic) if the neighbour refuses to take such action.

Finally owners of trees need to be aware that their trees (especially dead, damaged or decaying ones) can cause damage to property and even injury or death to persons or animals by falling and that the owner’s liability in this area will come from the common law of negligence.

If a neighbour’s tree is an issue for you, perhaps a chat over the fence would be a good starting point. If this is not working or is simply not an option, a courteous, non-threatening letter from your lawyer may lead to a co-operative resolution of the problem.

Goshawk Law provides a professional service in these types of matters and can be contacted on 1300 918 788 or by email to goshawk@sent.com

Tags: negligence, neighbours, nuisance, trees

This entry was posted on Monday, December 14th, 2009 at 11:27 am and is filed under Conveyancing & Property, Neighbours. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.