THE REFERENCE
1.1 On 23 December 1987 the Commission received a reference from the then Attorney General, the Hon R J Mulock MP, to inquire into and report on:
1. The laws which define and regulate relationships between people who live on neighbouring land with particular reference to:
(a) access to neighbouring land for the purposes of maintaining fixtures and services required by an adjoining property;
(b) easements for joint services, including joint connections for sewerage and drainage;
(c) problems caused by trees; and
(d) noise control as it affects neighbours.
2. Any related matter.
1.2 This reference on neighbour and neighbour relations arose out of consultations the Commission held to identify matters to be included in its Community Law Reform Program. To find out what aspects of the law might need changing or modifying, the Commission held a conference which was attended by representatives of Chamber Magistrates, Community Justice Centres, the Public Solicitor’s Office and four Community Legal Centres. It also distributed a Community Law Reform pamphlet to community and interest groups to get their views and suggestions. These consultations identified a number of kinds of disputes between neighbours as needing attention. These were disputes about dividing fences, joint use of services available to adjoining properties, and the problems caused by large trees and noise. The Commission received a reference on dividing fences and has reported on this issue.1 The remaining issues were combined into the current reference.
1.3 After releasing a discussion paper on Neighbour and Neighbour Relations2 (DP 22), analysing the responses and doing more research the Commission decided to publish two reports. The first, Right of Access to Neighbouring Land3 (the “Access Report”), focussed on the law relating to the private rights of access to neighbouring land to maintain and repair fixtures on one’s own property and the private rights of access to neighbouring land to carry out work on utility services on that neighbouring land. To overcome the problem that common law rights of access were too limited for modern living conditions the Commission recommended statutory reform to allow a person to apply to a Local Court for access over an adjoining or adjacent property to carry out work (for example, repair or demolition work) on his or her own property or for a person to carry out work on a utility service (for example, a sewerage service) on neighbouring land where the applicant is entitled to use that service (utility services order).
CONSULTATIONS AND SUBMISSIONS
Consultations
1.4 The Commission sought submissions from both the general public and specific interest groups. Departments and organisations, including the Council for Community Justice Centres, the Home Unit Owners Association of New South Wales, Council of the City of Sydney, the Department of Local Government and the Australian Dispute Resolution Association, responded to the discussion paper. A list of submissions is at Appendix “A”. The Commission also held meetings with Chamber Magistrates and officers of various Community Justice Centres, Legal Aid, the Strata Titles Board, the Department of Urban Affairs and Planning, the Department of Local Government, the Environment Protection Authority, Parramatta City Council and the Local Government and Shires Association of New South Wales.
Hotline
1.5 The Commission also set up a neighbourhood disputes hotline on 18 October 1991. The Commission received nearly 300 calls on the day and the number of follow-up calls and submissions was overwhelming. The results of the hotline provided the Commission with valuable information about the range of problems occurring within the community and the varied experience of those seeking resolution of these problems both inside and outside the legal system. A summary of the results of the hotline is at Appendix “B”.
THIS REPORT
Disputes about trees and noise
1.6 This Report is the second report dealing with disputes between neighbours. It focuses on disputes about trees and noise. It considers the existing law regulating trees and noise and makes recommendations for reform.
Focus on residential neighbours
1.7 DP 22 centred primarily on disputes between residential neighbours. The Access Report included commercial and industrial neighbours for the purposes of its recommendations. However, as the vast majority of disputes about trees and noise reported in submissions and during consultations concerned disputes between residential neighbours, this Report will focus on residential neighbours.
New noise control law
1.8 In December 1997, the New South Wales Parliament passed the Protection of the Environment Operations Act 1997 (NSW). When the Act becomes operational,4 it will replace the Noise Control Act 1975 (NSW). The legislation makes some important changes to noise control laws. The new law is discussed in Chapter 3, and the Commission’s recommendations take these changes into account. New regulations are being drafted and will become operational when the new Act comes into force.
IMPORTANCE OF COMMUNITY AWARENESS
1.9 Neighbourhood disputes about trees and noise affect a significant number of people. Submissions and consultations, including responses to the hotline, indicate that these disputes can tie up a considerable amount of community resources, for example, police, local council and court resources. The first and most fundamental step in achieving change is to address community attitudes and awareness. Those people who telephoned the Commission’s hotline strongly supported community awareness programs.
Community education about noise
1.10 The Community Mediation Division of the Australian Dispute Resolution Association stated that community education is vital. In relation to noise it said that the goals should be to encourage people to create a quieter environment and to tell people where they can get help to resolve noise problems.5
1.11 There is no doubt that community awareness programs have in the past been very successful in changing both attitudes and behaviour, for example, drink driving and anti-smoking campaigns. As the urban landscape becomes more built up and the average household size decreases, more people than ever live in very close proximity to their neighbours in home units, townhouses or terraces, and quarter acre blocks are increasingly used for dual occupancy. More people than ever before own noisy products, including cars, motor bikes, power tools and sophisticated sound systems. Most people do not set out deliberately to make their neighbours’ lives unpleasant and would appreciate information on how to limit any detrimental effect their activities might have on their neighbours. For people who are affected by neighbourhood noise, easy to understand information about their rights, the remedies available to them and how to go about resolving the problem is vital. The Environment Protection Authority (the EPA) has an education section whose role is to encourage change. The EPA produces a range of manuals and brochures, including brochures on how to deal with a noisy dog, how to reduce the noise impact of air conditioners, trucks, cars and motor cycles and traffic noise. The Commission strongly supports and encourages these approaches.
Need for community education about trees
1.12 There is also a clear need to educate the community about tree planting. This has become increasingly important because values about conservation and measures used to maintain the natural environment may conflict with the amenity, safety and property interests of people living in a closely built up urban environment. As with noise, most people do not set out deliberately to make their neighbours’ lives unpleasant and would make use of information on how to prevent and limit any detrimental effect that planting trees might have on their neighbours. Giving people clear information about their rights and the procedures they can follow if a tree is causing a problem would increase the chances of neighbours resolving difficulties quickly and easily between themselves.
RESOLVING DISPUTES BETWEEN NEIGHBOURS
1.13 The remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises. If this fails, an aggrieved neighbour should, whenever possible and appropriate, seek the help of a Community Justice Centre to mediate an agreed solution. A solution arrived at using these approaches is more likely to enable the parties to continue to live next to each other in reasonable harmony. These methods also avoid the possible delay and the stress and expense of a court imposed solution.
1.14 However, submissions and consultations demonstrate that these methods do not work in a significant number of cases. A considerable number of those making submissions had tried talking through the problem with their neighbours or had attempted mediation without success. There are a number of reasons for this. The level of hostility between the parties may be too high. The issues may be too complex. The Commission considers that another reason is that the law governing these disputes is outdated and does not provide forums for final resolution that neighbours can realistically use if all else fails. This may reduce the incentive for neighbours to negotiate. Where appropriate, the Commission makes recommendations that address these defects in law and procedure. In particular, the Commission recommends that Local Courts, rather than the Supreme Court, should be the forum for dealing with neighbourhood disputes about trees.
OUTLINE OF THIS REPORT
1.15 Chapter 2 of this Report discusses the law regulating trees and makes recommendations for reform. Chapter 3 examines the laws regulating noise, including the recent changes to the law, and makes recommendations for reform.
FOOTNOTES
1. New South Wales Law Reform Commission, Dividing Fences (Report 59, 1988).
2. New South Wales Law Reform Commission, Neighbour and Neighbour Relations (Discussion Paper 22, 1991).
3. New South Wales Law Reform Commission, Rights of Access to Neighbouring Land (Report 71, 1994).
4. It is proposed to become operational by December 1998.
5. Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991).
