BACKGROUND

3.1 The issue of trees was included in the Neighbour and Neighbour reference following the receipt by the Commission of many letters from people affected by their neighbours’ trees. Problems caused by trees are common throughout the community but the formal resolution of these disputes (especially if there is resort to the courts) is often very costly and unsatisfactory.

PROBLEMS CAUSED BY TREES

3.2 Trees can lead to a wide range of difficulties between neighbours. Disputes may arise over encroaching branches or intruding tree roots which can lead to structural damage to buildings, fences and retaining walls and interference with sewerage and drainage pipes. Leaves can litter a neighbour’s yard and cause particular problems for swimming pool owners. Falling branches have the potential for causing serious personal injury or property damage. Trees may simply obstruct a view or the passage of light, leading to a loss of amenity or damage (such as damp foundations and walls). An emerging issue relates to the obstruction of sunlight to solar energy collection devices.

3.3 Against all of these potential problems must be weighed the aesthetic value of trees, the legitimate interest of occupiers in planting trees to gain privacy and the general (but not absolute) right of landowners to use their land as they see fit. Moreover, the growing community concern with the environment reveals a greater commitment to tree planting and preservation in both urban and rural areas.

LEGAL REGULATION OF TREES

3.4 Generally speaking, there is no restriction on the type or number of trees which landowners may plant or allow to grow on their land except for the provisions in the Local Government Act 1919 which deal with the control and eradication of certain noxious plants.¹ Section 467 provides that the Governor may by Proclamation declare any plant to be a noxious plant throughout the whole or any specified portion of the State. Once a Proclamation has been served on local councils and published, an obligation arises on occupiers of private land to eradicate the noxious plant from their land.² Councils’ powers relating to noxious plants are really only relevant to plants which of their nature constitute a nuisance no matter where they are growing (eg. blackberries and privet, because of their propensity to overgrow and take over surrounding areas). These provisions do not provide the flexibility to deal with plants that might only cause problems because of where they are planted (eg. large trees planted next to drains, trees that block off light to neighbouring land). If planted in another position these same plants might cause no problems and make a valuable contribution to the aesthetic quality of the neighbourhood. There is no requirement to gain the approval of one’s neighbours or of the local council before planting a tree and there is no mechanism whereby a neighbour’s objections or interests can be taken into account. This situation can be compared with the controls that apply in respect of buildings or other structures under the Local Government Act 1919 and the Environmental Planning and Assessment Act 1979. A ‘building’ is defined so widely that approval must be obtained for even very minor structures, such as a pergola. The matters to be considered by a building application are set out in s313 of the Local Government Act. These matters relate to the actual building itself and its effect on neighbouring buildings. Given that trees can grow as high as or higher than the height limits for buildings and have the potential to create similar problems that buildings built in the wrong place could create, it may be worth considering the application of a discretionary approval scheme or other controls to the planting of trees. Perhaps the establishment of a more flexible procedure to regulate sensible garden planning should be given some thought.

Tree Preservations Orders

3.5 Although it is unusual for the planting of trees to be prohibited, it is common for a tree preservation order to be in effect in a particular locality. These orders prohibit the cutting down or lopping of trees over a certain size (without council permission) and are contained in Environmental Planning Instruments (EPI) applying to the locality made under the Environmental Planning and Assessment Act 1979. The nature of the provisions which an EPI can contain are generally stated in Division 1 of Part 3 of the Act. Section 26(e) provides that an EPI may make provision for or with respect to protecting and preserving trees or vegetation.

AVAILABLE REMEDIES

Nuisance

3.6 A landowner cannot prevent a neighbour from planting a tree which may be unsuitable and will cause problems in years to come. However, the law of nuisance provides a remedy in certain situations to a person who suffers damage as a result of problems caused by trees. Generally speaking a remedy is only available once damage has already occurred or where it is apparent that substantial damage is a virtual certainty or is imminent.

3.7 The law of nuisance attempts to strike a balance between the interests of occupiers: between the right to use your own land as you see fit and the right of your neighbours to enjoy their land without unwarranted interference.

3.8 Nuisance protects a wide (but not exhaustive) range of interests in the enjoyment of land. It encompasses not only physical damage to land or buildings “but equally the pleasure, comfort and enjoyment which a person normally derives from occupancy of land.”³

3.9 However, not all amenities commonly associated with the enjoyment of land are protected. The aesthetic value in an unobstructed or pleasing view is not recognised nor is an occupier’s right to an unimpeded passage of sunlight.

3.10 A remedy in nuisance will however be provided in many of the situations in which trees cause problems. In Butler v Standard Telephone & Cables Ltd,⁴ the defendant’s poplar tree roots spread across the boundary to the land of the plaintiff and caused clay on which houses were built to dry out, causing shrinkage and subsidence which resulted in damage to the houses. In Smith v Giddy⁵ a grower of fruit trees succeeded in his action in nuisance against his neighbour for the damage caused to his trees by showing that they were stunted due to the effect of overhanging tree limbs.

Abatement (self-help remedy)

3.11 A right of abatement exists allowing a landowner to cut off overhanging branches and sever roots intruding into his or her property. The legal position was first clearly enunciated in Lemmon v Webb⁶ in which Lindley LJ stated:

The owner of a tree has no right to prevent a person lawfully in possession of land into or over which its roots or branches have grown from cutting away of so much of them as projects into or over his land.

This right does not require the permission of the court nor, although it is probably advisable, notice to the tree’s owner. The right of abatement arises automatically in respect of encroaching branches or roots and actual damage need not be shown. Fleming states that the right can extend to entering upon neighbouring land to abate a nuisance, but there is no privilege of entry unless a mandatory injunction would have issued.⁷

3.12 Should any branches, roots and even fruit be removed they must be returned to the owner of the tree, otherwise an action for conversion may be instituted.

3.13 In practice, it is usually the neighbour who removes overhanging branches who bares the cost of the removal, as “attempts to recover the costs will usually aggravate the situation between neighbours”.⁸ It is not certain whether a claim for damages will be successful for the recovery of the costs of employing an expert to remove various parts of a tree. However the Courts have allowed abatement costs to be recovered pursuant to the law relating to public nuisance where the plaintiffs were public authorities who were under a duty to safeguard public rights.⁹ Certainly, should a neighbour be reckless in his or her pruning then a legitimate action for damages may lie with the owner for any damage caused to the tree.¹⁰

Damages

3.14 Damages are available to compensate a person affected by a nuisance. Common law damages are available only in respect of past or existing losses and cannot be awarded in respect of future difficulties caused by a continuing nuisance. A plaintiff can only recover for continuing loss by bringing repeated actions for a successful claim. The damage must also be actual, physical damage.¹¹

3.15 The need to bring repeated actions can be overcome by claiming damages in equity. A court exercising equitable jurisdiction can assess compensation once and for all, taking into account past and future losses.

Injunctions

3.16 In certain circumstances a mandatory injunction may be available from a court of equity requiring a tree owner to cut down the tree or otherwise abate the nuisance caused by it. Injunctions are only available where damages would not afford an appropriate remedy and in determining this the court will weigh the extent of the plaintiff’s injury or inconvenience against the effect the injunction would have on the defendant. For instance in Middleton v Humphries¹² it was held that if an action on the case will lie, then the remedy of injunction must be available if the nuisance be a continuing one. This case was cited with approval in McCombe v Read¹³ where it was held that the encroachment of the roots of the poplar trees into and under the plaintiff’s land and the abstraction of water from the soil by the roots constituted a continuing nuisance for which the remedy of injunction would lie. Harman J observed

It could not be right to throw on the plaintiff the burden of watching for further subterranean encroachment. In my judgment, however the plaintiff is not entitled to an unqualified injunction, for he has no remedy unless a nuisance be caused. The injunction will, therefore, be to restrain the defendants from allowing the roots from any tree on their property so to encroach on the plaintiff’s land as to cause a nuisance.¹⁴

3.17 Generally speaking, injunctions are only available once damage has been caused. However, in exceptional circumstances a quia timet injunction may be issued ordering a defendant to avert prospective injury. Such injunctions are issued only if there is a strong probability that the nuisance will in fact arise or that the damage, if it materialises, will be irreparable. Under s68 of the Supreme Court Act 1970 (NSW), the Court may grant damages in lieu of an injunction for prospective damage. Further, disputes may now be resolved by the plaintiff being paid a full and final amount of compensation, whilst consenting to tolerate the continuing nuisance.

As Fleming argues

this in effect amounts to a judicial power of expropriation and is administered very cautiously so as not to become an instrument for legalising the commission of a tort by any defendant able and willing to pay for it.¹⁵

PROBLEMS NOT RESOLVED BY AVAILABLE REMEDIES

View

3.18 Although the law of nuisance provides a remedy in many of the circumstances in which trees cause problems, its scope is limited. The right to a view is not protected. Gillespie has noted that:

A survey of the case law suggests that an overwhelming majority of the judiciary agrees that a view is unworthy of protection from obstruction through the tort of nuisance ...

A typical traditional response holds:

Aesthetic considerations are fraught with subjectivity. One man’s pleasure may be another man’s perturbation and vice versa. What is aesthetically pleasing to one may totally displease another - 'beauty is in the eye of the beholder' (Ness v Albert 2, 665 S W 2d (Mo App 1983))

There is clearly potential for an imbalance to arise between the benefit derived by an occupier enjoying a view and the detriment that legal preservation of that view may have upon the use and development of surrounding land. In Dunstan v King [1948] VLR 269 for example, the plaintiff complained in nuisance about unacceptable levels of noise emanating from the defendant’s sawmill. The Court had little difficulty in deciding that the plaintiff could no longer enjoy his land, and ordered the defendant to confine the operation of his circular saw to specified periods of time. By contrast, an obstruction of a view may cause annoyance and loss of property value, but will rarely, if ever, result in the complete loss of enjoyment of land.¹⁶

However, given the value of a view even in contributing to the enjoyment of property and in monetary terms, it must be questioned whether the law should not place some impediment on the right of one landowner to block the view of another, by the growth of trees or any other development.

Sunlight

3.19 Access to sunlight raises similar problems. Easements for light are rarely granted expressly and can no longer be obtained by prescription. Section 179 of the Conveyancing Act 1919, which gives effect to the Ancient Lights Declaratory Act 1904, provides that no right of access to light or air shall be deemed to exist, if use of such access is merely for enjoyment. In the absence of an easement for light, it would seem that the mere interference with the passage of light to a neighbour’s property will not be actionable unless it leads to physical damage, such as weakened foundations. These issues have particular relevance to the protection of access of sunlight to solar energy devices. In recent years there has been an increased interest in utilising the energy of the sun and more and more suburban homes are installing cost efficient, non-polluting solar energy devices. In these areas, Preece argues that the main problem is likely to be posed by the growth of trees and other vegetation so as to obstruct the light. Trees are likely to be the main problem in this context, because they are in general the tallest objects in residential communities, and because of their prevalence. Preece suggests that the obstruction can be minimised by the appropriate lopping of tops of trees and by an express grant or covenant protecting a right of access to sunlight but recognises that such solutions may not be very practical in view of the operation of Tree Preservation Orders.”¹⁷ As solar energy devices become more widespread, there may need to be some sort of regulation imposed to ensure that access to light is not restricted. In its Discussion Paper No 15 Easements and Covenants, the Victorian Law Reform Commission stated

the creation of easements which guarantee access to solar energy is probably possible, but clarification of the substantive right and a standard form of words is necessary to encourage acquisition of solar energy easements.¹⁸

REVIEW OF AVAILABLE REMEDIES

3.20 A problem with the law of nuisance is that it is concerned principally with providing a remedy after damage has occurred. Even if a preventative injunction is obtained, compliance with the injunction will put the tree owner to expense that could have been avoided had the offending tree not been planted or allowed to overgrow.

3.21 With regard to existing trees, the law of nuisance does offer a wide range of remedies. The right of abatement is one solution to the problem of encroaching branches or roots. This right seems to be generally known and accepted in the community.

3.22 Although damages provide an appropriate remedy in some cases (for example, to compensate for the expense of repairing a pipe damaged by tree roots), in most cases of continuing nuisance an injunction would be a preferable remedy. However, an injunction (or indeed, a claim for equitable damages) can only be obtained in the Supreme Court, although a temporary injunction can be granted by the District Court.¹⁹ The cost of such proceedings would generally be out of proportion to the gravity of the problem sought to be remedied. There is no reason why disputes between neighbours over trees should go to the Supreme Court unless the damage is so substantial that the cost and possible delay of going to the Supreme Court will outweigh those obvious disadvantages. Indeed, this process is likely to exacerbate the conflict.

PROPOSALS FOR REFORM

3.23 It may therefore be prudent to give some consideration to a scheme for regulating garden planning, particularly in densely populated areas. One way of doing this would be to allow local councils to make regulations governing the planting of trees and other plants. As stated earlier, the existing powers relating to noxious plants lack the flexibility needed for this purpose. Regulations could prohibit certain types of trees in gardens less than a certain size, or within a set distance from pipes or buildings, or in the vicinity of swimming pools. An alternative would be to require council approval for the planting of certain types of trees or trees with the capacity to grow above a certain height. Consideration should be given to imposing a limit on the size and type of tree which can be planted in a suburban garden. Factors similar to those applied when examining a building application could be applied to such proposals. This would allow the interests of neighbours to be taken into account in assessing the desirability of the tree.

3.24 The most common argument against the sensible garden planning proposal is that tree growth is unpredictable as it is dependant on factors such as soil fertility and location. While there may be some merit in that argument, it is quite possible to predict what the impact of an eucalyptus globulus or a similarly proportioned tree will be if one chooses to plant it near a sewer line, boundary fence or neighbour’s house. Often the problem results from the difficulty in identifying the plant and ignorance as to its average growth height which can be easily rectified if nurseries are made aware of their role in providing guidance and advice to purchasers of plants. While there is a great deal of community education and publicity on the value of trees and the importance of protection, preservation and promotion of trees, the community should also be made aware of the detrimental effects of planting the wrong trees in the wrong spots and the value of sensible garden planning. The Forest Commission of Victoria has made available to the public a brochure entitled, ‘Planting near drains and sewers’ which describes ‘safe’ plants. Simiarly the Melbourne and Metropolitan Board of Works has published a brochure entitled ‘Root out a problem before it starts’. The Forestry Commission of New South Wales could, in consultation with the Department of Local Government, publish a similar document that could be made available to those seeking tree planting approval (if such a scheme is implemented) through the local councils and through nurseries when plants are purchased.

3.25 While the above suggestions could help to alleviate problems caused by trees in the long term, the lack of a suitably appropriate and efficient mechanism to solve immediate disputes about trees is a matter of some concern. As outlined above (paras 3.20-3.22), the only remedies currently available are at common law and equity and are not usually cost effective. The remedy of abatement could be modified to require the cost of removing the overhanging branches or intruding tree roots to be borne by the owner rather than the aggrieved neighbour whether or not it gives rise to an action for nuisance. If there is a dispute as to whether or not some part of the tree is causing a nuisance which an attempt at mediation has failed to resolve, the local council or if necessary the Local Court (preferably a Chamber Magistrate) could be empowered to adjudicate . This would encourage owners to be more careful about tree planting since they will bear any future abatement costs.

3.26 Attention should be paid to the problems of the obstruction of a view and light which at present lack any remedies. Consideration could be given to balancing the benefit of the right to views or light as the case may be against the detriment that legal preservation of that right could cause on the lines suggested in paras [3.18] - [3.19].

3.27 A survey conducted after the recent storm in the Hornsby area revealed that the majority of the trees that fell were rotten and infested with white ants. The damage that resulted was enormous. Compulsory and regular inspection by qualified council officers would have alleviated this problem as such trees would have been removed or lopped if they were in a dangerous condition. It may therefore be worthwhile considering the prospect of councils carrying out regular tree inspections.

3.28 Finally, as mentioned in the previous chapter, the need for community education and awareness programs cannot be overstated. If the community is made aware of the value of sensible garden planning and maintenance, trees may not continue to be such a common cause of neighbourhood disputes.

QUESTIONS FOR DISCUSSION

• Should there be some limitation or regulation on the planting of trees, the type and height of trees planted and where to position a tree in relation to boundaries?
• Should there be policy guidelines only or legislative intervention to regulate trees on neighbouring property?
• If only policy guidelines, should some effort be made to inform or educate residents about the possible beneficial and detrimental effects of trees?
• Should nurseries, Councils and the Forestry Commission be involved in the sensible garden planning campaign?
• Should consideration be given to re-introducing a right to light and air particularly in regard to the increased use of solar energy devices?
• Should there be a right to a view uninterrupted by obstructive trees?

1. The relevant provisions are contained in Part 12 of the Local Government Act 1919.

2. Local Government Act 1919 s472(2)(b).

3. J G Fleming, The Law of Torts, (7th ed, 1987) 385.

4. [1940] 1 All ER 121.

5. [1904] 2 KB 448.

6. [1894] 3 CH 1, 14.

7. J G Fleming, The Law of Torts, note 3 at 414, 415.

8. S Molesworth “Suburban backyard environmental problems: confrontation or compromise?” (1984) 58 Law Institute Journal 645.

9. Louth Rural District Council v West (1986) 12 TLR 477; The Ella (1915) P 111.

10. Roberts v Rose (1865) 4 H C 103.

11. Young v Wheeler (1987) Australian Torts Reports 80-126.

12. (1913) 47 ILT 160.

13. [1955] 2 All ER 458 at 464.

14. id.

15. J G Fleming, The Law of Torts, note 3 at 414.

16. J Gillespie “Private Nuisance as a means of protecting views from obstruction” (1989) 6 Environmental and Planning Law Journal 94 at 100, 105.

17. A A Preece, “Solar Energy & The Law,” (1981) 6 Queensland Lawyer 96.

18. Victorian Law Reform Commission Easements and Covenants Discussion Paper 15 (1989) at 16.

19. District Court Act 1973 s140.