REGULATION OF TREES

2.1 Generally, there are no restrictions on the type or number of trees that land owners or occupiers may plant or allow to grow on their land. The law provides for the control and eradication of noxious plants, but apart from this the main aim of regulation has been to preserve trees.

Regulation of noxious plants

2.2 The Noxious Weeds Act 1993 (NSW) regulates noxious weeds by providing a mechanism for identifying noxious weeds requiring control measures, specifying what control measures are needed and specifying the duties of public and private land holders for controlling those weeds.

2.3 It provides a framework for State-wide control of noxious weeds by the Minister and local control authorities.¹ The Minister may declare, by order published in the Gazette, a plant to be a noxious weed for the whole or a part of the State.² Depending on the control category on declaration, specified forms of control measures must be taken in relation to the weed. Measures may include notifying the local council, full and continuous repression and destruction, spread prevention and reduction in distribution and numbers or whatever is specified in the declaration.³ An occupier of land must control noxious weeds on the land, as required under the control category or categories specified for the weeds concerned.⁴

2.4 Local councils are responsible for the control of noxious weeds in their local government area and may, by giving an occupier a “weed control notice”, require him or her to carry out relevant control obligations in a specified manner.⁵ Councils have other functions under the Act, including developing, implementing, coordinating and reviewing noxious weed control policies and noxious weed control programs and inspecting land within the local area in connection with its weed control functions.⁶ A council may appoint an inspector to inspect land or premises for noxious weeds and to advise about whether a plant is noxious and how to control it.⁷ Weeds declared noxious under the Act are those which pose a threat to agriculture, the environment or the community. The potential to spread to other areas is the main, but not the only, basis for determining the level of threat a weed poses and the action to be taken to control it. The Minister cannot make an order applying to an Australian native unless the Minister for National Parks and Wildlife has consented.⁸

Tree preservation

2.5 Councils have the power to make an order protecting trees in their local government area. These orders are Environmental Planning Instruments (EPIs) made under the Environmental Planning and Assessment Act 1979 (NSW).⁹ EPIs can be made regarding a number of matters, including protecting or preserving trees or vegetation and controlling any act, matter or thing relating to this.¹⁰ Model provisions made by the Minister¹¹ provide that where a council thinks it is necessary to “secure amenity or preserve existing amenity” it may, by resolution, make a “tree preservation order” (TPO). TPOs may prohibit, unless the council has consented, the ring barking, cutting down, lopping, removing, injuring or wilful destruction of any tree or trees specified in the TPO. The council may impose any conditions it thinks fit on giving that consent.¹² TPOs may cover any tree or trees or any specified class, type or description of trees on land in the local government area or divisions of it.¹³ The council must publish TPOs in the Gazette and publicise them in the local newspaper.¹⁴ Disobeying a TPO is an offence.¹⁵

2.6 Many councils have provisions about tree preservation as part of their Local Environmental Plans. Some have quite detailed provisions about application for consent and the matters a council must consider before giving it;¹⁶ others simply provide for when the powers given to the council by the model provisions do not apply.

WHEN TREES INTERFERE WITH NEIGHBOURS

Nuisance

2.7 The common law of nuisance may provide a remedy to a person who suffers damage or interference as a result of problems caused by trees. Generally, a remedy is only available once damage or substantial interference has already occurred or where it is apparent that substantial damage or interference is a virtual certainty or is imminent.¹⁷ The law of nuisance attempts to strike a balance between the interests of occupiers: between the right to use one’s own land as one sees fit and the right of one’s neighbours to enjoy their land without unwarranted interference.¹⁸ Nuisance protects physical damage to land or buildings and also the less tangible interest of “the pleasure, comfort and enjoyment which a person normally derives from occupancy of land”.¹⁹

Tangible damage caused by trees

2.8 Nuisance provides a remedy particularly where trees cause physical damage to a neighbour’s property. For example, legal action was successful where tree roots spread across a boundary and caused subsidence and damage to houses by drying out the soil on which the houses were built,²⁰ and where overhanging branches caused fruit trees to be stunted.²¹

Where trees block out sunlight

2.9 The law gives very little protection to neighbours who find that trees interfere with their enjoyment of occupancy by blocking out sunshine from their land. The common law is uncertain about whether and, if so, in what circumstances a person has a remedy in nuisance against a neighbour for blocking out sunlight to his or her property. The common law does not generally recognise access to light as an interest it will protect unless the person’s access to the sun is protected by an easement. However, few people are likely to take the legal steps necessary expressly to protect their access to sunlight by easement and the neighbour would have to agree before it could be done. In any case, even if there is an easement, the interference must reduce the amount of light below the amount which is reasonably necessary for the ordinary use of the plaintiff’s land.²² The ability to get an easement through 20 years continuous and uninterrupted user (the doctrine of ancient lights) has been abolished in New South Wales if access is merely for enjoyment.²³

2.10 The common law of nuisance does not protect unusual or sensitive use of land. This is likely to make it difficult for a person seeking to protect access to sunlight for a solar collector to succeed in an action for nuisance.²⁴ This is particularly so while the number of people using solar collectors remains relatively low.²⁵ If a neighbour has blocked the sunlight purely out of malice, and assuming the court holds that access to sunlight is an interest deserving of protection, the person with the solar collector may have a greater chance of success in an action for nuisance. However, it appears that this argument will only succeed if the tree casting the shade has no utility value to the tree owner.²⁶ A further concern is that even if the action succeeds, there is no guarantee that the court will grant an injunction, which is what a person needing access to sunlight needs, rather than damages.²⁷ In the United States, there is some movement towards courts recognising that blocking sunlight to a solar collector may be a nuisance,²⁸ but it seems unlikely that Australian courts will follow this lead.²⁹

Where trees block out a view

2.11 The law of nuisance does not provide a remedy where trees block out a neighbour’s view. The common law of nuisance has consistently refused to protect a right to a view.³⁰ The reasons appear to be that the interference with aesthetics is too subjective and that while obstruction of a view may cause annoyance and loss of property value, it will rarely, if ever, result in the complete loss of enjoyment of land.³¹

Remedies

Injunctions

2.12 Where a tree causes damage, the courts tend to favour granting an injunction requiring the tree owner to cut down a tree causing a nuisance or to take some other action to prevent the tree causing further nuisance. Where damage has not yet occurred, the courts will only grant an injunction to prevent future injury in a very narrow set of circumstances which do not include likely damage due to encroachment of roots.³²

Damages

2.13 A court can award damages to compensate a person affected by trees causing a nuisance. To get compensation the person must suffer actual physical damage.³³ The law is more complicated where there is a continuing nuisance. The common law does not compensate a person for damage that will occur in the future. To avoid bringing repeated claims each time more damage occurs, a person can claim damages in equity and the appropriate court will assess damages taking into account future damage as well.³⁴

Abatement

2.14 The common law allows a person to cut off overhanging branches and roots intruding onto his or her property. This is known as the right of abatement.³⁵ The person does not need the court’s permission or to notify the owner of the tree although notice is probably prudent. The encroaching branches or roots do not have to cause actual damage before a person can exercise the right of abatement. However, the person may open themselves to legal action, namely trespass, if he or she goes onto the tree owner’s property to trim the branches or roots unless the branches or roots have actually caused a nuisance or are a danger to life and health.³⁶ The common law also requires that the person removing overhanging branches must place them on the tree owner’s property.³⁷

ISSUES RAISED IN SUBMISSIONS

People plant trees without concern for the trouble they might cause

2.15 One submission was concerned that a person can plant as many trees as he or she likes without concern or responsibility for the trouble they might cause neighbours.³⁸ One submission reported that a neighbour had planted 11 eucalypts in a small house block.³⁹ In other cases, a fig tree had been planted next door and had roots 60 feet long,⁴⁰ and forest trees had been planted right against a boundary.⁴¹

Kinds of damage

2.16 Other submissions noted that trees cause a range of problems and concerns for neighbours including:

• damage to houses caused by falling branches⁴² or trees⁴³ which can result in increased insurance premiums;⁴⁴
• damage to walls and paving from tree growth and roots;⁴⁵
• huge amounts of leaf and tree litter blocking guttering;⁴⁶
• roots interfering with drainage;⁴⁷
• hay fever;⁴⁸
• interfering with TV reception;⁴⁹
• blocking out light⁵⁰ and making the house and yard cold and damp;⁵¹ and
• blocking out a view.⁵²

Person suffering bears the cost

2.17 Submissions confirm that, in practice, the person who suffers from the problems caused by the neighbour’s tree ends up bearing the cost of preventing damage or remedying damage it has caused.⁵³ They say that tree owners will not pay these costs.⁵⁴ Older people may be unable to clean up mess caused by a tree or to pay for someone else to do it.⁵⁵ The costs can be considerable⁵⁶ and may be recurring.⁵⁷ The unfairness of this is pointed out in a number of submissions, for example:

There are many disputes between neighbours such as noise, dogs, cats, etc but this is the only one where the neighbour with the complaint has to pay.⁵⁸

The rules are weighted in favour of the person who recklessly planted the tree.⁵⁹

Conflict with tree preservation orders

2.18 A number of submissions say that TPOs can create more conflict in relation to a nuisance tree.⁶⁰ They say TPOs make the right of abatement even more burdensome for the person affected because he or she must apply to the council for permission to trim the tree.⁶¹ One submission says that if the owner will not ask for permission, or consent, to trim the tree the victim is stuck with the problem.⁶² Some councils will not give permission to lop or cut down unless the owner consents and owners impose all kinds of conditions on consent, for example, that the costs be borne by the person affected or that the trimmings not be placed on the owner’s land.⁶³

Rights hard to enforce

2.19 Submissions argue that the rights of a person suffering from a neighbour’s nuisance tree are hard to enforce. Many say that they had approached their neighbours about the nuisance tree, but to no avail.⁶⁴ Other problems identified include that: going to the Supreme Court to enforce rights is too expensive for most people;⁶⁵ it can take a number of years to enforce a right;⁶⁶ and councils generally will not help and have only limited powers.⁶⁷

Conclusion

2.20 Trees on private property are a substantial cause of neighbourhood disputes. Neighbours seeking resolution of problems caused by a neighbour’s trees must rely on common law remedies, but submissions and consultations show that the common law is inadequate. The law of nuisance is only likely to provide a remedy where a tree actually causes physical damage. Common law nuisance rights in relation to the less tangible impact of trees on the enjoyment of property are so unclear and uncertain that few people are likely to pursue them in a court. People are also unlikely to be able to resolve a dispute between themselves on the basis of such laws.

2.21 The common law does not reflect the evolving importance to society of access to sunlight and views. The common law of nuisance is of very little use to a neighbour trying to prevent a tree from causing damage. This means that a minor dispute that could be resolved by the inexpensive removal of a small tree is likely to become a major dispute in which property damage has occurred and will continue to occur unless huge amounts are spent to remove what has become a very large tree.

2.22 The right of abatement has been considerably modified by TPOs and, in any case, the costs involved in removing overhanging branches prevents many people from exercising it. The common law requirement that a person removing overhanging branches must place them on the tree owner’s property is totally out of touch with the circumstances in which abatement is likely to occur in modern times. A person complying with this requirement runs a high risk of escalating a dispute. The Commission recommends that the common law right of abatement be modified in two ways. First, a person who intends to exercise the right of abatement should be required to give the tree owner 28 days written notice before removing the overhanging branches or roots causing the nuisance. Secondly, the requirement that the branches or roots removed from the tree be placed on the tree owner’s property should be abolished.

Recommendation 1

That the operation of the common law right to abate a nuisance by cutting off overhanging branches and roots be modified as follows:

• A person who intends to abate the nuisance should be required to give the tree owner 28 days written notice before doing so.
• The requirement that the branches or roots removed from the tree be placed on the tree owner’s property should be abolished.

2.23 The inadequacy of the common law and the legal process leaves a legal vacuum for neighbours in dispute about trees. Mediation using Community Justice Centres is useful for some of these disputes but is not successful or appropriate for a considerable proportion of cases. The current law provides little incentive for a neighbour whose trees are causing problems to negotiate. Traditionally, these disputes are characterised as being disputes between private citizens in which public authorities should not become involved. However, the legal vacuum has meant that considerable amounts of public resources are spent managing, or dealing with the consequences of, these disputes. Conflicts over trees occupy considerable resources of local councils, chamber magistrates, members of Parliament, legal aid and the police. It is clear that most of those making submissions had sought help from all these bodies. However, local councils lack the necessary powers to deal with such problems and, in any case, are often unwilling to intervene in what they regard as a private dispute.

PREVENTING OR REDUCING PROBLEMS WITH TREES

2.24 One way of reducing disputes about trees is to prevent inappropriate planting of trees. DP 22 asked whether there should be some limitation or regulation on the planting of trees. Possible limitations it suggested were on the type and height of the tree and on where the tree can be planted in relation to a boundary.

Regulation of tree planting

2.25 One option to prevent inappropriate planting of trees is to have regulations governing such matters as:

• the numbers of trees that can be planted in a particular space;
• the height of trees that can be planted in a built up area;
• the type of trees that can or cannot be planted; and
• where trees can be planted on the land.

There was some support in submissions for this approach.⁶⁸ The regulations would be monitored by council inspectors.⁶⁹

Approval process for planting

2.26 A number of submissions suggested that the best way to regulate planting would be to require people wanting to plant trees to get approval from the council in the same way that a person wanting to build must get approval.⁷⁰ This would overcome problems that could arise from rigid blanket regulation.⁷¹ Several submissions point out the inconsistency in approach to buildings and trees. They say that there are restrictions on the height of buildings and on their position on a block, including balconies, but no restrictions on the position or the height of trees that can be planted.⁷² Some submissions suggest that planting restrictions could be incorporated into the existing process for approving new building applications.⁷³ Others said that a compulsory system for planting would result in unnecessary bureaucracy and expense for most councils.⁷⁴

Community education

2.27 There is some support in submissions for education rather than regulation. Many submissions favour the involvement of councils in preventative strategies including advising about tree planting and producing reliable information about the habits of trees.⁷⁵ For example, pamphlets could be included in rates notices.⁷⁶ The Environmental Defender’s Office says that any education program must be in the context of an ecologically sustainable development strategy which stresses the need for trees as well as the need to prevent possible nuisance to neighbours from their growth.⁷⁷

The Commission’s recommendation

2.28 The Commission does not favour a general scheme regulating all planting of trees. Whether a tree is likely to cause damage or affect neighbours’ enjoyment of land depends on many factors including some which are not necessarily predictable. Providing for every variable would be too restrictive. It would discourage planting of trees when the general policy is to encourage it. In addition, inspection and enforcement would be expensive. Neither does the Commission favour a building application type approval process for all tree planting. The process would be expensive for councils and for people wanting to plant trees. It would also discourage people from planting trees.

2.29 The least intrusive approach to prevent inappropriate planting of trees is to educate the community on an ongoing basis. The Department of Urban Affairs and Planning, the Department of Local Government and local councils could work together to develop material about responsible tree planting. This material could be distributed with rates notices on an annual basis. The brochures should include information about:

• trees that are particularly unsuitable for small suburban blocks and likely to cause damage, for example, camphor laurels, liquid ambers and willow trees;
• where to locate trees to prevent trouble, for example, distance from fences, buildings;
• how to trim trees to minimise overhang;
• trees that are particularly suitable for small blocks; and
• where people can get advice about tree planting.

Minimising conflict with tree preservation orders

2.30 Measures should be taken to minimise the problems caused by TPOs in resolving disputes about trees. A TPO may prevent a neighbour from abating a nuisance caused by overhanging branches. Most councils will give consent to trim a tree causing a nuisance but some require the consent of the tree owner before allowing the neighbour to abate the nuisance. The consent of the owner may not necessarily be forthcoming or the owner may give consent but impose conditions that further distort the common law right. For example, the owner may require the neighbour to bear the cost, or insist that the trimmings not be placed on the owner’s property.

2.31 To minimise these problems the Commission recommends that the Minister for Urban Planning and the Environment makes a State Environmental Planning Policy (SEPP)⁷⁸ to provide that listed non-native trees that are undesirable because they are highly likely to cause damage to property are exempt from the operation of TPOs. The SEPP would provide that TPOs should not require the consent of the tree owner to allow a neighbour to trim overhanging branches to abate a nuisance.

Recommendation 2

That the Minister for Urban Planning and the Environment makes a State Environmental Planning Policy which provides that listed non-native trees that are undesirable because they are highly likely to cause damage to property are exempt from the operation of tree preservation orders.

Recommendation 3

That tree preservation orders should not require the consent of the tree owner to allow a neighbour to trim overhanging branches in order to abate a nuisance.

A DISPUTE RESOLUTION PROCESS

2.32 The Community Mediation Division of the Australian Dispute Resolution Association emphasised the need to have a clearly defined and well known dispute resolution process. It said:

If neighbours are encouraged, through a coordinated education program, to view dispute resolution as an orderly and prescribed process where their interests are defined and dealt with, they are less likely to allow their frustration and anger to build to the point where future neighbourly relations — and community harmony — are severely damaged.⁷⁹

2.33 Submissions argue that the dispute resolution mechanism for disputes about trees should be inexpensive, informal and easily accessible.⁸¹ They also said the process should be quick as delay inevitably leads to escalation of the dispute.⁸²

2.34 There was no support for a specialist neighbourhood tribunal in the submissions received by the Commission largely because:⁸³

• it is not cost effective;
• adequate options already exist, they just need to be more widely linked and publicised;
• adding another service would create duplication and add more bureaucracy; and
• it offers nothing more than the Local Courts which are already the most accessible community forum. Local Courts are close to other community services such as police and council chambers, and are present throughout urban and rural areas.⁸⁴

2.36 A number of submissions favoured involving councils in adjudicating disputes about trees.⁸⁸ However, the Local Government and Shires Association of New South Wales said that councils are not appropriate bodies to mediate or adjudicate disputes because they do not have the required specialist skills. It also said that the regulating body should not mediate or adjudicate.⁸⁹ The Community Justice Centres Council favoured the Local Courts as the appropriate forum because they have knowledge of local community issues and local bodies or agencies.⁹⁰ The Local Government Tree Resources Association said that local councils should have the power under s 124 of the Local Government Act 1993 (NSW) to order an owner or occupier to do or refrain from doing such things as are specified in the order to ensure that, on land or premises, trees are pruned or removed to prevent real, physical damage or injury to people or property now or in the future.⁹¹

Should councils have a role in disputes about trees?

2.37 There are a number of good reasons why councils should play some role when disputes about trees arise. Submissions, consultations and surveys show that many people in the community see the local council as the logical body to approach if they experience problems with a neighbour’s tree. In many cases, a TPO will require the neighbour suffering a nuisance to approach the council for permission to abate a nuisance caused by a tree. Councils have the power to require a person to remove or take other action in relation to a tree to keep land or premises in a safe or healthy condition.⁹² As councils are involved in tree management on public land in the local area, they usually have staff with considerable expertise and knowledge about trees.

2.38 However, the Department of Local Government and the Local Government and Shires Association argue that public authorities such as councils should not become involved in disputes between neighbours about trees as these are private disputes. Also, as mentioned previously, they argue that regulators should not be arbitrators. Another reason for their opposition is that councils simply do not have the resources to deal with disputes about trees.

2.39 The Commission is not persuaded by the argument that disputes about trees are private disputes in which public authorities should not become involved. Public authorities and indeed, councils, already become involved in disputes that could be characterised as private. The issue is at what point does it serve the public interest for public authorities to become involved in what might otherwise be regarded as a private dispute. While councils may not generally have been involved in disputes between neighbours, there has always been potential for them to do so by virtue of the power given councils to act in relation to private land where safety or health is at risk.⁹³ Councils are very likely to be called upon to exercise this power in the context of a private dispute.

2.40 Councils now have a clear responsibility to act in relation to disputes between neighbours about noise.⁹⁴ In exercising this responsibility they have both regulatory and dispute resolution roles. The Commission agrees that councils should not become embroiled in mediating or arbitrating complex disputes about trees. They do not have expertise in mediation or arbitration processes. However, there is an urgent need for a non-legalistic process whereby in clear-cut cases, a body can order a tree owner to prevent inevitable damage to property or to stop a tree from causing further, clearly apparent, damage to property. Councils are the most appropriate body to do this. It would not be a mediation or adjudication process. It would simply be making an order where a set of facts exists. It is the same process used when a council makes other orders under s 124 of the Local Government Act 1993 (NSW) or issues a noise abatement direction under s 276 of the Protection of the Environment Operations Act 1997 (NSW).

2.41 It is not in the public interest for neighbourhood disputes to remain unresolved. Such disputes can affect the health of members of the community; they may result in assaults and end up involving the public resources of the police and the criminal justice system. Failure to prevent tree damage may result in increased insurance premiums. Where a tree has clearly caused damage, or damage is inevitably going to occur, the responsibility of the tree owner is apparent. The person suffering the damage should not be required to go through a mediation process in relation to that responsibility. Nor is it in the public interest to require a person to take the matter to court in order to enforce the tree owner’s responsibility. Taking a case to court, including a Local Court, is too onerous for many people. The owner of a tree causing damage has less incentive to resolve a dispute if he or she knows that the person is unlikely to take them to court.

2.42 An order from a council requiring a tree owner to act to prevent or abate damage is a direct and quick way of resolving the problem before it escalates into a potentially major dispute. The Commission recognises that councils have tight budgets and that enabling them to make such orders may place further pressure on council resources. However, this does not justify a decision not to give councils this power if they are the most appropriate body to exercise it. Other public bodies, including courts, also have limited resources. This measure may prevent the far greater expenditure of public resources that occurs when unresolved neighbourhood disputes get out of hand. The Commission recommends that s 124 of the Local Government Act 1993 (NSW) be amended to give councils the power to order an owner or occupier of land or premises to do or refrain from doing such things that are specified in the order to prevent a tree which has caused physical damage to property from causing further damage, or to prevent physical damage in the future in cases where, because of the species of tree or its location, physical damage is highly likely to occur in the future.

Recommendation 4

That s 124 of the Local Government Act 1993 (NSW) be amended to give councils the power to order an owner or occupier of land or premises to do or refrain from doing such things that are specified in the order to prevent a tree which has caused physical damage to property from causing further damage, or to prevent physical damage in the future in cases where, because of the species of tree or its location, physical damage is highly likely to occur in the future.

Court procedure

2.43 In addition to giving councils the power outlined in paragraph 2.42, a simple, inexpensive and accessible local court process is needed. There is very strong support among those consulted for a new simple process in the Local Courts. The Commission considers that the Dividing Fences Act 1991 (NSW) provides an appropriate model.

2.44 Legislation should be enacted establishing the procedure. The legislation should set out the responsibilities of tree owners and should state specifically that tree owners are responsible for ensuring that their trees do not cause damage to neighbouring property or interfere unreasonably with the neighbour’s enjoyment of land. The law should state that the tree owner must bear any costs associated with preventing tree-caused damage to neighbouring property and must compensate neighbours for any damage the owner’s tree causes. The legislation should also set out the following procedural matters.

Notice to owner or occupier of land

2.45 Where a person’s land or property is being damaged by a tree, or is likely to be damaged by a neighbour’s tree, or a person’s enjoyment of his or her land is being unreasonably affected by a tree, the person should write a letter to the neighbour telling him or her what problems the tree is causing and asking him or her to abate the problem. If the person has suffered damage, he or she should ask the neighbour to pay the amount needed to compensate for the damage caused.

Enforcement

2.46 If the neighbour does not respond to the notice within one month, the person should be able to apply to a Local Court for a declaration that a tree has caused or is likely to cause damage or that it unreasonably interferes with the person’s enjoyment of his or her land. The Court should have the power to adjourn a case if it considers that the parties would benefit from attending mediation. Where loss of enjoyment rather than damage or likely damage is the issue, the Court should require the parties to attend mediation unless the relations between the parties are such that mediation appears to be inappropriate.

2.47 In determining whether a tree unreasonably interferes with a person’s enjoyment of their land, the Court should consider, among other things:

• the location of the tree in relation to the boundary and in relation to any premises;
• the size of the land involved;
• when the trees causing loss of enjoyment were planted, that is, whether they were planted before or after the affected owner acquired the property;
• whether there was any malice involved in planting the trees;
• whether the tree is planted in accordance with the local council’s tree planting policy, if any;
• whether the trees are well known for causing problems;
• whether the loss of enjoyment the tree causes will be ongoing; and
• the nature and pattern of vegetation in the area, for example, whether there are many others of the kind in the area.

• the loss of enjoyment is severe and it outweighs any loss of enjoyment (and any financial loss) the tree owner would experience as a result of the court order and any detrimental impact on the natural environment; or
• the loss of enjoyment is severe and the court finds on the balance of probabilities that the trees were planted with the intention of causing loss of enjoyment.

Orders the court could make

2.50 If the Court makes a declaration, it would have the power to make a range of orders including an order to:

• lop or trim a tree’s branches or roots;
• remove a tree entirely;\
• take any other action necessary to prevent further damage;
• take any other action necessary to prevent future damage in a case where damage has not yet occurred but is highly likely to occur if action is not taken;
• compensate the owner for the costs of repairing the damage where damage has occurred; and/or
• state who should bear the cost of abating the loss of enjoyment and, in appropriate circumstances, how the cost should be shared between the parties.

• whether the tree is subject to a TPO;
• whether the tree is an Australian native;
• the reasonableness or otherwise of the behaviour of the parties;
• the costs involved in carrying out the order; and
• the means of the parties involved.

Recommendation 5

That legislation should be enacted which provides a new simple, inexpensive and accessible process in Local Courts, similar to the model under the Dividing Fences Act 1991 (NSW) for the resolution of disputes about trees. The legislation should state:

(1) the responsibilities of tree owners, specifically that tree owners are responsible for ensuring that their trees do not cause damage to neighbouring property or interfere unreasonably with the neighbour’s enjoyment of land; and

(2) that the tree owner must bear any costs associated with preventing tree-caused damage to neighbouring property and must compensate neighbours for any damage the owner’s tree causes.

Should access to sunlight be protected?

2.52 Trees that cast shade on a neighbouring property can have a major impact on a person’s enjoyment of land. If a tree totally blocks out sunlight from the house and yard the house may become damp and mouldy and require more heating. It may make washing harder to dry, make it difficult to grow plants in the yard and block sunlight from a solar powered heater. A person may be denied the chance to “bask in the sun” on his or her property. There are also potential financial consequences. The impact of a building on access to sunlight is becoming of increasing concern in building and development applications. As part of their local policies, some councils have detailed provisions which aim to maximise the use of solar energy in new buildings and developments.

2.53 However, whether tree shading might be regarded as unreasonably affecting a neighbour will depend on the circumstances. Trees that have been growing on a property without causing a problem could suddenly interfere with enjoyment if the person next door installs a solar panel. Shading may occur because of the gradual growth of trees over a very long period. Alternatively, the tree or trees may be growing in a heavily forested suburb where the shading of houses is inevitable. It may be unreasonable in these circumstances for the law to require the tree owner to cut the trees down.

2.54 On the other hand, the loss may be unreasonable if the trees were planted with the deliberate intention of affecting the neighbour’s enjoyment of his or her land. It is also a matter of weighing up whether the loss of enjoyment the tree shading causes outweighs the loss of enjoyment the owner might suffer from cutting down or trimming the tree and the detrimental impact on the natural environment. Despite these difficulties and because of the potential for shading to cause severe and unreasonable loss of enjoyment, the Commission recommends that a person whose enjoyment of property has been severely affected by a neighbour’s trees blocking out sunlight should be able to apply to a Local Court under the proposed new procedure. The matters to be considered should be the same as for any other kind of intangible loss of enjoyment caused by trees.

Recommendation 6

That a person whose enjoyment of property has been severely affected by a neighbour’s trees blocking out sunlight should be able to apply to a Local Court under the proposed new procedure.

Should access to a view be protected?

2.55 Loss of access to a view can affect the enjoyment of property as well as substantially affect the value of a property. The effect of a new building on access to a view is becoming an important consideration in building and development applications and at common law.⁹⁵ The Commission has been advised that it is increasingly becoming a cause of disputes between neighbours. However, as with access to sunlight, whether the loss of access to a view caused by trees is unreasonable depends on the circumstances.

2.56 Generally, the social and environmental benefit to the community of maintaining the natural environment should outweigh an individual’s interest in preserving a view. When a person buys a property with a view, it is reasonable to expect the buyer to take into account and to accept the fact that trees growing naturally in the area may, over time, block the view. On the other hand, the Commission has been informed of cases where a person, who was refused planning permission to build on a property on the grounds that the building would block a view, planted trees on the property with the aim of blocking the view by other means and so removing the barrier to planning approval. The balance may also shift if trees are planted after the owner buys the property, particularly if the trees planted are out of keeping with the naturally occurring vegetation or are inappropriate for the density of occupation in the area.

2.57 The Commission recommends that a person whose enjoyment of property has been severely affected by a neighbour’s trees blocking out a view should be able to apply to a Local Court under the proposed new procedure. The matters to be considered should be the same as for any other kind of intangible loss of enjoyment caused by trees.

Recommendation 7

That a person whose enjoyment of property has been severely affected by a neighbour’s trees blocking out a view should be able to apply to a Local Court under the proposed new procedure.

1. Noxious Weeds Act 1993 (NSW) s 3.

2. Noxious Weeds Act 1993 (NSW) s 7.

3. Noxious Weeds Act 1993 (NSW) s 9.

4. Noxious Weeds Act 1993 (NSW) s 12.

5. Noxious Weeds Act 1993 (NSW) s 18.

6. Noxious Weeds Act 1993 (NSW) s 36.

7. Noxious Weeds Act 1993 (NSW) s 39 and s 41.

8. Noxious Weeds Act 1993 (NSW) s 7(4).

9. Environmental Planning and Assessment Act 1979 (NSW) s 24.

10. Environmental Planning and Assessment Act 1979 (NSW) s 26(e) and (f).

11. Environmental Planning and Assessment Model Provisions 1980 cl 8. The model provisions are made under the Environmental Planning and Assessment Act 1979 (NSW) s 33.

12. Environmental Planning and Assessment Model Provisions 1980 cl 8(2).

13. Environmental Planning and Assessment Model Provisions 1980 cl 8(3).

14. Environmental Planning and Assessment Model Provisions 1980 cl 8(4).

15. Environmental Planning and Assessment Model Provisions 1980 cl 8(5).

16. See eg Armidale Local Environmental Plan 1988.

17. R P Balkin and J L R Davis, Law of Torts (2nd edition, Butterworths, Sydney, 1996) at 446-447; R A Buckley, The Law of Nuisance (2nd edition, Butterworths, London, 1996) at 46-47.

18. R P Balkin and J L R Davis, Law of Torts (2nd edition, Butterworths, Sydney, 1996) at 455; R A Buckley, The Law of Nuisance (2nd edition, Butterworths, London, 1996) at 46-47.

19. J G Fleming, The Law of Torts (9th edition, LBC Information Services, Sydney, 1998) at 465.

20. R A Buckley, The Law of Nuisance (2nd edition, Butterworths, London, 1996) at 46-47. See eg Butler v Standard Telephone Cables Ltd [1940] 1 All ER 121.

21. Smith v Giddy [1904] 2 KB 448.

22. R A Buckley, The Law of Nuisance (2nd edition, Butterworths, London, 1996) at 34-37; Colls v Home and Colonial Stores [1904] AC 179 (HL).

23. See Conveyancing Act 1919 (NSW) s 179 which gives effect to the Ancient Lights Declaratory Act 1904 (NSW).

24. A Bradbrook, Solar Energy and the Law (Law Book Company, Sydney, 1984) at 96.

25. A Bradbrook, Solar Energy and the Law (Law Book Company, Sydney, 1984) at 98.

26. A Bradbrook, Solar Energy and the Law (Law Book Company, Sydney, 1984) at 100.

27. A Bradbrook, Solar Energy and the Law (Law Book Company, Sydney, 1984) at 103-104.

28. See eg Prah v Maretti (1981) 2 Solar Law Reporter 1013 (Circuit Ct); 108 Wis, 2d 223, 321 NW 2d 182 (Wisconsin Sup Ct).

29. A Bradbrook, Solar Energy and the Law (Law Book Company, Sydney, 1984) at 105.

30. R A Buckley, The Law of Nuisance (2nd edition, Butterworths, London, 1996) at 37; Aldred’s case (1610) 9 Co Rep, 77 ER 816 (KB); Harris v De Pinna (1885) 33 ChD 238 (CA); Chastey v Ackland (1895) 11 TLR 460; Kent v Johnson (1973) 21 FLR 177 at 209-213; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 205-206; Gartner v Kidman (1962) 108 CLR 12 at 46.

31. J Gillespie, “Private Nuisance as a Means of Protecting Views From Obstruction” (1989) 6 Environmental and Planning Law Journal 94 at 100 and 105.

32. R P Balkin and J L R Davis, Law of Torts (2nd edition, Butterworths, Sydney, 1996) at 446-447; Lemmon v Webb [1894] 3 Ch 1 at 11.

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

34. Also Supreme Court Act 1970 (NSW) s 68 which provides that a court may grant damages instead of an injunction for future damages.

35. See eg Lemmon v Webb [1894] 3 Ch 1 at 14.

36. See J G Fleming, The Law of Torts (9th edition, LBC Information Services, Sydney, 1998) at 497.

37. Mills v Brooker [1919] 1 KB 555.

38. P Hendricks, Submission (12 May 1993) (Also referred from Department of Local Government).

39. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government).

40. T W Smyth, Submission (24 February 1992).

41. J Marden, Submission (23 October 1991).

42. See eg A T Martin, Submission (10 November 1994); F†I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); H J Sweeney, Submission (15 June 1983); F Adams, Submission (16 October 1991); F Burrows, Submission (14 September 1998).

43. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government).

44. S Manning, Submission (23 May 1994).

45. N T Rogers, Submission (24 October 1991).

46. M Chiswick, Submission (30 July 1991) (Referred from Department of Local Government); H J Sweeney, Submission (15 June 1983); F Adams, Submission (16 October 1991); O H Batchelor, Submission (24 October 1991).

47. Combined Pensioners’ Association, Submission (10 June 1989) (Referred from Department of Local Government); E Valerio, Submission (26 January 1989) (Referred from Department of Local Government); M Wright, Submission (10 July 1992); R S Phillips, Submission (21 October 1991); S and G Trathen, Submission (30 March 1990).

48. K Singer, Submission (24 March 1992) (Referred from Department of Local Government).

49. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government).

50. D and J Samuel, Submission (24 April 1989) (Referred from Department of Local Government).

51. S and G Trathen, Submission (30 March 1990); W H Westley, Submission (24 August 1989) (Referred from Department of Local Government); E and D Elliot, Submission (17 June 1987); B M Brooke, Submission (27 August 1983); J Murray MP on behalf of T Wachala, Submission (14 April 1994); F Adams, Submission (16 October 1991).

52. A Walker, Submission (31 March 1990) (Referred from Department of Local Government); J M Frame, Submission (25 October 1991); M Gulson, Submission (11 June 1991) (Referred from Department of Local Government).

53. S Manning, Submission (23 May 1994); Home Unit Owners Association of New South Wales, Submission (30 August 1991); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); M Wright, Submission (10 July 1992); P Hendricks, Submission (12 May 1993) (Also referred from Department of Local Government); W Betfort, Submission (3 March 1992); O H Batchelor, Submission (24 October 1991); N T Rogers, Submission (24 October 1991); F Burrows, Submission (14 September 1998).

54. M Wright, Submission (10 July 1992); O H Batchelor, Submission (24 October 1991).

55. S Manning, Submission (23 May 1994); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); M Chiswick, Submission (30 July 1991); (Referred from Department of Local Government); J Murray MP on behalf of T Wachala, Submission (14 April 1994); S and G Trathen, Submission (30 July 1991); F Burrows, Submission (14 September 1998).

56. See eg S Manning, Submission (23 May 1994), who suffered $5,000 worth of damage and had insurance premiums increased by 35%; F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); P Hendricks, Submission (12 May 1993) (Also referred from Department of Local Government); F Burrows, Submission (14 September 1998).

57. M Wright, Submission (10 July 1992).

58. P Hendricks, Submission (12 May 1993) (Also referred from Department of Local Government).

59. M Wright, Submission (10 July 1992).

60. See eg Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991); S Manning, Submission (23 May 1994); F I Wilson, Submission

(19 August 1991) (Also referred from Department of Local Government); D J Fraser, Submission (12 February 1992).

61. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); S Manning, Submission (23 May 1994).

62. W Betfort, Submission (3 March 1992).

63. See eg O H Batchelor, Submission (24 October 1991).

64. J H Westley, Submission (24 August 1989) (Referred from Department of Local Government); D and J Samuel, Submission (24 April 1989) (Referred from Department of Local Government); E and P Kofler, Submission (18 July 1989) (Referred from Department of Local Government); E Valerio, Submission (26 January 1989) (Referred from Department of Local Government); E and D Elliot, Submission (17 June 1987); H J Sweeney, Submission (15 June 1983); M Wright, Submission (10 July 1992); P Hendricks, Submission (12 May 1993) (Also referred from Department of Local Government); E F Hale, Submission (20 January 1993) (Referred from Department of Local Government); S Reid, Submission (14 August 1992) (Referred from Department of Local Government); T W Smyth, Submission (24 February 1992).

65. Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991); Home Unit Owners Association of New South Wales, Submission (30 August 1991);

S Manning, Submission (23 May 1994); Combined Pensioners’ Association, Submission (10 June 1989) (Referred from Department of Local Government); W Betfort, Submission (3 March 1992); F Adams, Submission (16 October 1991); R S Phillips, Submission (21 October 1991); K Szabo, Submission (12 February 1992); Community Justice Centres, Submission (11 July 1991).

66. K Szabo, Submission (12 February 1992).

67. N T Rogers, Submission (24 October 1991); Ryde Council, Letter to Andrew Tink (14 November 1994); Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991); Combined Pensioners’ Association, Submission (10 June 1989) (Referred from Department of Local Government); F Burrows, Submission (14 September 1998).

68. Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); M Gulson, Submission (11 June 1991) (Referred from Department of Local Government); J T Turner MP on behalf of Mr Harley, Submission (15 February 1991) (Also referred by Department of Local Government); J Marden, Submission (23 October 1991); W Betfort, Submission (3 March 1993).

69. Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government).

70. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); D J Fraser, Submission (16 October 1991); Home Unit Owners Association of New South Wales, Submission (30 August 1991).

71. D J Fraser, Submission (16 October 1991).

72. D J Fraser, Submission (16 October 1991); M Gulson, Submission (11 June 1991) (Referred from Department of Local Government).

73. Home Unit Owners Association of New South Wales, Submission (30 August 1991); Local Government and Shires Association of NSW, Submission (22 August 1991).

74. Local Government and Shires Association of NSW, Submission (22 August 1991).

75. See eg Community Justice Centres, Submission (11 July 1991); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); Environmental Defender’s Office, Submission (28 October 1991).

76. F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government).

77. Environmental Defender’s Office, Submission (28 October 1991).

78. Environmental Planning and Assessment Act 1979 (NSW) s 37.

79. Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991).

80. Community Justice Centres, Submission (11 July 1991).

81. See eg Community Justice Centres, Submission (11 July 1991).

82. Community Justice Centres, Submission (11 July 1991).

83. Community Justice Centres, Submission (11 July 1991); Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991).

84. Community Justice Centres, Submission (11 July 1991); Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991).

85. Community Justice Centres, Submission (11 July 1991); Community Mediation Division, Australian Dispute Resolution Association, Submission (28 November 1991).

86. Community Justice Centres, Submission (11 July 1991).

87. Home Unit Owners Association of New South Wales, Submission (30 August 1991).

88. See for example, D J Fraser, Submission (16 October 1991); F I Wilson, Submission (19 August 1991) (Also referred from Department of Local Government); Home Unit Owners Association of New South Wales, Submission (30 August 1991); Combined Pensioners’ Association, Submission (10 June 1989) (Referred from Department of Local Government); M Wright, Submission (10 July 1992).

89. Local Government and Shires Association of NSW, Submission (22 August 1991).

90. Community Justice Centres, Submission (11 July 1991).

91. Local Government Tree Resources Association, Submission (11 November 1997).

92. Local Government Act 1993 (NSW) s 124 order 21.

93. Local Government Act 1993 (NSW) s 124 order 20.

94. See para 3.18, 3.20 and 3.46.

95. See eg Freeman v Shoalhaven Shire Council [1980] 2 NSWLR 826.