Protecting those Views!
The Trees (Disputes Between Neighbours) Act 2006 gives power to The Land and Environment Court to resolve disputes between neighbours over high, dense hedges that severely affected views and sunlight.
The Land and Environment Court has a limited jurisdiction to make orders where the Court finds that a hedge on adjoining land is severely obstructing:
- sunlight to a window of a dwelling, or
- any view from a dwelling.
A ‘window’ includes a glass sliding door, a door with a window, a skylight and any other similar thing.
The legislation only operates in respect of multiple trees which satisfy the definition of hedge: a group of 2 or more trees that:
- are planted (whether in the ground or otherwise) so as to form a hedge and
- rise to a height of at least 2.5 metres above existing ground level.
The Court does not have the power to make orders against single trees which block views or sunlight and nor does the jurisdiction apply to trees situated on Crown land or on any land within a zone designated “rural-residential”.
If an owner or occupier of land is concerned about trees on an adjacent property, they have an initial obligation to make ‘reasonable effort’ to reach agreement with the owner of the land on which trees are located. The legislation is expressly intended to ensure that, wherever possible, neighbours attempt to resolve hedge disputes through discussions or mediation. The Court cannot make an order if it is not satisfied that the applicant has made a reasonable effort to resolve the dispute. Failing resolution by negotiation or mediation, an owner or occupier of land is entitled to apply to the Land and Environment Court for an order to remedy, restrain or prevent a severe obstruction to sunlight or a view. An applicant must give at least 21 days notice of the lodging of the application and the terms of any order sought to the owner of the land on which the trees are situated and to any other person the applicant has reason to believe will be affected by the order.
In arriving at a determination the Court must conduct a balancing exercise to determine whether the applicant’s interest in having the situation remedied outweighs any countervailing interest in not disturbing the hedge. The legislation provides a non-exhaustive list of eighteen matters for the Court to take into account in determining an application, including the environmental and community benefits of urban trees, the nature and extent of the view obstructed and the part of the dwelling from which the view is obstructed.
What constitutes a view, and whether if there is a view is it seriously obstructed, will be matters for the Court’s determination on the facts of the case.
Among the orders which the Court may make are orders requiring the taking of action to maintain trees at a certain height, width or shape and orders requiring the removal of a tree or trees and their replacement with a different species. The Court may authorize land to be entered for the purpose of carrying out its orders, including obtaining quotations for the carrying out of an order.
Trees that cause damage
The Land and Environment Court also has jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 which allows a person to apply to the Court for an order where a tree on property adjacent to theirs has caused, is causing or is likely in the near future to cause damage to the applicant’s property or where it is likely that the tree will cause injury to a person. The Court has a broad power to make orders to remedy, restrain and prevent damage or injury to any person and has associated enforcement powers.
Orders can be made under the Act regarding trees located wholly or principally on urban land, such as land zoned residential,township or industrial. The Act does apply to trees on Crown land but does not apply to trees on land owned or managed by a Council.
A ‘tree’ is defined as ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations’. The Trees (Disputes Between Neighbours) Regulation 2007 declares that bamboo is a tree and the more recent amendments provide that a vine is also a tree. Additionally the Court’s jurisdiction includes disputes over a tree which caused damage but has been removed.
As with the hedge jurisdiction, the court cannot make an order unless it is satisfied that the applicant has made a reasonable effort to resolve the manner with the owner of the land on which the tree is situated via negotiation or mediation.
Recent 2010 amendments also give the Land and Environment Court jurisdiction to hear and determine matters arising under the Dividing Fences Act 1991 (NSW) where an application has been made under the Trees (Disputes Between Neighbours) Act 2006 in relation to a tree that has caused, is causing or is likely to cause damage to a dividing fence, or where a tree is itself part of a dividing fence, and has caused, is causing or is likely to cause damage to the applicant’s property, or is likely to cause injury to a person.
If a person fails to comply with any requirement imposed by an order of the Court, the Court may impose a fine and the other party may ask their local council to intervene to perform the work in accordance with the Order. Councils which choose to intervene may now recover not only the ‘reasonable costs of undertaking the work’, but also a prescribed administration fee which may be registered as a charge on the tree-owner’s land. The Act permits the Court to order compensation for rectification of damage caused by a tree, payment of the cost of any work and/or replacement of any trees which the Court orders to be removed. Additionally, a person who fails to comply with a Court Order may have criminal or contempt proceedings brought against them.
If you are concerned with possible damage arising from a tree on an adjacent property, if a hedge is blocking your views or access to sunlight, or if you are named as a Respondent in proceedings commenced under the Trees (Disputes Between Neighbours) Act 2006, give us a call so can assist you.
Disclaimer: The information contained herein is not advice and should not be relied upon as legal advice. The Norton Law Group recommends that if you have a matter that is legal, or has legal implications, you should seek legal advice specific to you situation
