Neighbourhood Nuisance: Tree Disputes with Neighbours

When a neighbour extends an olive branch it is usually a sign of peace and harmony, but when the branch extends over your fence and drops leaves, seed pods, fruits, or flowers into your backyard swimming pool it becomes a source of neighbourly annoyance.

An action under private nuisance may be taken in accordance with the Trees (Disputes Between Neighbours) Act 2006. It is noted that there are three elements required for an action in private nuisance:

1. The defendant has interfered with a property right of the plaintiff;
2. The interference was both substantial and unreasonable; and
3. The plaintiff has title to sue (this has been extended to include tenants).

The details of the second element will determine what action is appropriate. There are three forms of interference sufficient to constitute a nuisance:

(a) Encroachment on the neighbour’s land,
(b) Physical damage to the neighbour’s land or any building, works or vegetation on it, and
(c) Unduly interfering with the comfortable and convenient enjoyment of a neighbour’s land.

If an action under nuisance is sought, the matter may be referred to the Land and Environment Court for determination, however the first port of call would usually be to arrange parties to attend mediation.

The Act permits the Court to make a range of orders as is deemed necessary, such as orders for removal, pruning (including pruning on an ongoing basis) and compensation in the event of nuisance causing actual damages (such as damages to underground pipes caused by root systems, or damages to roofs, paths, etc). If damage has occurred as a result of the nuisance, it may be beneficial to seek expert opinions as to the cause and quotes for the remedy of such damages.

Section 10 of The Act stipulates:

1. The Court must not make an order under this Part unless it is satisfied:

• That the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
• If the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

2. The Court must not make an order under this Part unless it is satisfied that the tree concerned:

• Has caused, is causing or is likely in the near future to cause damage to the applicant’s property, or
• Is likely to cause injury to any person.

Before taking any action, remember that taking any matter to Court can be an expensive and time consuming option. Reaching an agreement between yourself and your neighbour privately will almost always be a better alternative.

The contents of this article are general in nature. For advice specific to your circumstances, please contact your legal practitioner.

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