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.

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 to abate a nuisance.

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.

Recommendation 5

That legislation should be enacted which provides a new simple, inexpensive and accessible process in the Local Court, 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.

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 the Local Court under the proposed new procedure.

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 the Local Court under the proposed new procedure.

Recommendation 8

That the EPA prepare guidelines about the drafting of noise control notices and the kind and amount of evidence needed to establish that noise is ‘offensive’ for the purposes of the noise provisions of the Protection of the Environment Operations Act 1997 (NSW).