Neighbourhood Tree Disputes: Report (html)

Recommendations

Chapter 4

1 A new Act should be introduced to govern the process for resolving disputes between neighbours about trees on private land in Victoria. The new Act could be titled the Neighbourhood Tree Disputes Act.

Chapter 5

2 The Act should define ‘tree’ to mean:

(a) any woody perennial plant

(b) any plant resembling a tree in form and size

(c) vines, cacti, palms, bamboo

(d) any other plant prescribed by Regulations.

3 ‘Tree’ should also include:

(a) all parts of the tree, whether joined to the main structure or separate

(b) a tree that has been partially or wholly removed

(c) a dead tree.

4 The Act should apply to trees on privately owned land that is:

(a) within a zone designated residential, commercial, industrial, green wedge, rural living and rural conservation under a Victorian planning scheme or a zone that has the substantial character of one of these zones, or

(b) within a special purpose zone designated as capital city, docklands, activity centre, priority development, comprehensive development and urban growth, or

(c) prescribed in regulations.

5 The Act should not apply to land that is zoned farming, rural activity, special use, urban floodway or port or to land that is used for commercial timber plantation.

6 The Act should apply only where an affected neighbour’s land adjoins the tree owner’s land.

7 The Act should define ‘adjoin’ to mean land that shares a common boundary, or would share a common boundary were it not separated by:

(a) a public road

(b) a pedestrian path

(c) a laneway

(d) a bridge

(e) a culvert or

(f) other similar thoroughfare prescribed in Regulations.

8 If a tree subject to the dispute straddles boundary lines the Act should:

(a) allow the affected neighbour to bring an application irrespective of the proportions of the tree on each parcel of land, and

(b) provide the Victorian Civil and Administrative Tribunal with a discretion to consider the proportions of the tree on each party’s land in making orders.

9 A determination about the proportions of the tree owned by the respective parties should be made by measuring the location of the base of the trunk at ground level on each parcel of land.

10 A person may apply to the Victorian Civil and Administrative Tribunal for an order under the Act if they are:

(a) the owner of the land affected by a tree (affected neighbour), or

(b) an occupier of land affected by a tree if the owner of land has refused to commence proceedings.

11 The Act should allow an application to be brought against the owner of the land on which the tree is situated (the tree owner).

12 An applicant may apply to the Victorian Civil and Administrative Tribunal for an order under the Act to:

(a) restrain or remedy damage to the affected neighbour’s land or property that is caused by a tree

(b) prevent damage to the affected neighbour’s land or property that is caused by a tree that is likely to occur within the next 12 months

(c) address existing harm to anyone on the affected neighbour’s land that is caused by a tree

(d) prevent harm to any person on the affected neighbour’s land that is caused by a tree that is likely to occur within the next 12 months.

13 The affected neighbour should be required to notify affected parties of an application and the remedies sought within 21 days of lodging the application.

14 ‘Affected parties’ should be defined in the Act to mean:

(a) the tree owner/s

(b) any relevant authority that would otherwise be required to issue consent in relation to any works to the tree

(c) any other person that the applicant thinks will be affected by the order.

15 The Act should state that the Victorian Civil and Administrative Tribunal may waive these notice requirements where the tree poses an imminent risk of causing damage or harm or where it is appropriate in the circumstances to do so.

16 The Victorian Civil and Administrative Tribunal should consider developing a detailed application form that is modelled on the application forms for initiating a tree dispute in the Land and Environment Court of New South Wales and the Queensland Civil and Administrative Tribunal. Additional information should be sought in the application form about:

(a) the species of the tree and whether it is a recognised weed

(b) the steps the parties may have already taken to resolve their dispute

(c) how the decision-making principles in the Act are addressed

(d) the zone of the land the tree is situated on and any applicable planning scheme, overlay or other requirement affecting the management of the tree that the applicant is aware of under the Planning and Environment Act 1987 (Vic) or any other Act or law

(e) whether any remedies are sought under the Fences Act 1968 (Vic) to rectify damage to a fence caused by a tree or to prevent damage or harm from a tree that forms part of a fence

(f) any assessments or quotes that may have already been obtained from experts

(g) whether the applicant is the owner or occupier of the land. If the applicant is an occupier of land, evidence that the owner has refused to make an application

(h) whether any party has entered into a contract for the sale of land to ensure that the Victorian Civil and Administrative Tribunal is aware of all relevant parties to the dispute.

(i) the names of other parties and information about proportional ownership if a tree trunk straddles a boundary.

Chapter 6

17 The Act should state that the affected neighbour and tree owner are encouraged to resolve their dispute informally but that the affected neighbour may apply to the Victorian Civil and Administrative Tribunal to resolve the dispute.

18 The Act should include a non-exhaustive list of examples of informal resolution approaches including:

(a) communicating with the other party to notify them of the issues (including providing a quotation or arborist’s assessment) and negotiate with them

(b) exercising the right to abate

(c) engaging in alternative dispute resolution, such as mediation through the Dispute Settlement Centre of Victoria.

19 The Act should modify the common law right to abate to the extent that abated tree parts such as branches, roots, fruit and other material are not required to be returned to the tree owner unless the neighbours have agreed otherwise.

Chapter 7

20 The Victorian Civil and Administrative Tribunal should have original but not exclusive jurisdiction to determine tree disputes under the new Act.

21 Any Government consideration of diversity jurisdiction issues that apply to the Victorian Civil and Administrative Tribunal should also include consideration of the new Act.

22 The Victorian Civil and Administrative Tribunal should consider extending the Fast Track Mediation and Hearing Program administered by the Dispute Settlement Centre of Victoria in VCAT to suitable tree disputes.

23 Government should consider appointing members with arboricultural expertise to the Victorian Civil and Administrative Tribunal to hear tree dispute matters. Alternatively, in order to obtain expert opinions on arboriculture matters and to obtain the complete context of the dispute, the Victorian Civil and Administrative Tribunal should consider adopting the Queensland Civil and Administrative Tribunal approach of using independent tree assessors throughout Victoria.

24 The Victorian Civil and Administrative Tribunal should conduct on-site final hearings or on-site inspections for all tree disputes.

Chapter 8

25 The Act should state that before determining an application the Victorian Civil and Administrative Tribunal must consider the following matters to the extent that they are relevant to an application:

(a) the location of the tree in relation to the boundary of the land and any structures or premises

(b) the condition of the tree in respect of its health and structural integrity

(c) whether works to the tree would require any consent or authorisation under other Acts or laws and, if so, whether the consent or authorisation has been obtained

(d) the provisions of the planning scheme which apply to the land under the Planning and Environment Act 1987 (Vic) including relevant zones and overlays and the provisions of other relevant Acts or laws that apply to the land or tree

(e) the impact any pruning, including the impact of maintaining the tree at a particular height, width or shape, would have on the tree

(f) any contribution the tree makes to:

i. the amenity of land on which it is situated, including its contribution to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke

ii. the local ecosystem and biodiversity

iii. the natural landscape and scenic value of the land

(g) whether the tree has any historical, cultural, social or scientific value. This includes a tree that is part of Aboriginal cultural heritage under the Aboriginal Heritage Act 2006 (Vic) or is a registered tree or is situated in a Victorian heritage place under the Heritage Act 2017 (Vic).

(h) any impact the tree has on soil stability, the water table or other natural features of the land or locality

(i) anything, other than the tree, that has contributed, or is contributing, to any harm or damage or likelihood of harm or damage, including:

i. any act or omission by the applicant and the impact of any other trees owned by the applicant

ii. any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify damage

(j) whether the tree and any risk, obstruction or interference associated with the tree existed before the affected neighbour began to occupy the land affected by the tree

(k) whether the tree is a recognised weed

(l) such other matters as the decision-making body considers relevant in the circumstances of the case.

26 The Act should require that arborists who provide evidence to the Victorian Civil and Administrative Tribunal hold a relevant arboricultural qualification of minimum Australian Qualifications Framework (AQF) Level 5 or equivalent and have at least two years practical experience.

27 The Victorian Civil and Administrative Tribunal should direct experts in tree dispute matters to comply with clause 11 of Practice Note PNVCAT2: Expert Evidence, 1 October 2014 with the following additional requirements:

(a) a requirement that the on-site assessment has been undertaken during the three months leading up to the hearing

(b) a detailed description of the assessment methodology relied upon, including the date of the tree inspection and any limitations of the assessment

(c) a record of the expert’s observation of the tree, providing an assessment of the categories for the tree’s health, condition, form and structure

(d) a photograph supporting observations and highlighting points of interest

(e) details of the local planning scheme overlays and local laws applying to the tree

(f) information about whether the tree is remnant, indigenous, native, exotic or weed species

(g) information about the retention value of the tree based on the objectives of the local planning scheme or the local law.

28 The Victorian Civil and Administrative Tribunal should develop a Practice Note about the requirement for a causal link between the tree and any harm, such as a medical condition, that is the subject of an application.

Chapter 9

29 The Act should provide the decision maker with broad discretion to make such orders as it considers appropriate, including:

(a) requiring the taking of specified action

(b) enabling entry to land for the purposes of carrying out an order or to obtain a quote for carrying out the tree works

(c) requiring the payment of the costs of tree works

(d) requiring the payment of compensation for property damage

(e) requiring a replacement tree to be planted in a specified location and to be maintained to mature growth if a tree is ordered to be removed, or

(f) requiring ongoing maintenance for a specified time period.

30 The Act should require that work that is carried out pursuant to orders complies with the relevant Australian Standards and undertaken by a suitably qualified arborist as determined by the Victorian Civil and Administrative Tribunal.

31 The Act should require the Victorian Civil and Administrative Tribunal to provide a copy of any orders made to any relevant authority who would otherwise be required to authorise or consent to works on the tree.

32 Where new circumstances are not accommodated in the original order, the Act should allow the tree owner or affected neighbour or immediate successors in title to apply to the Victorian Civil and Administrative Tribunal to vary or revoke the original order.

33 The Victorian Civil and Administrative Tribunal’s powers in determining the application to vary or revoke the order should be stated in the Act as the power to:

(a) affirm the original order

(b) vary the original order by altering the terms of the order or by substituting any other order that the Victorian Civil and Administrative Tribunal may make under the new Act

(c) revoke an existing order.

34 The applicant should provide notice in writing of the application to vary or revoke the original order to the original parties to the dispute as well as any other affected parties that were given notice of the original application or any successors in title.

35 The Act should only provide for one application to vary or revoke the order per year.

36 The Act should include a penalty, to be determined by Government, for the failure to comply with an order.

37 If an order has not been complied with by the required time, the Act should provide that a party may apply to the Victorian Civil and Administrative Tribunal to seek permission to enter the tree owner’s land and carry out the works specified in the order themselves. Reasonable costs incurred as a result of carrying out the order should be able to be recouped from the non-complying party as a debt in the relevant court.

38 The right of the affected neighbour to enter a tree owner’s land should be subject to the requirement that:

(a) reasonable notice is given to the owner of land or occupier whose land is to be accessed by the applicant

(b) access only occurs at a reasonable time during the day

(c) any other requirements that the Victorian Civil and Administrative Tribunal considers are appropriate, for example, that relevant insurance is obtained by the applicant.

Chapter 10

39 The Commission recommends exemptions in the Victoria Planning Provisions be expanded to enable an order made under the Act to have effect despite any requirement to obtain a permit in a Victorian Planning Scheme to remove, lop or destroy vegetation under a:

(a) Significant Landscape Overlay

(b) Environmental Significance Overlay

(c) Vegetation Protection Overlay

(d) Heritage Overlay

(e) Native Vegetation Particular Provision.

40 Where an exemption referred to in Recommendation 39 applies, the following safeguards should apply:

(a) the relevant responsible authority must be notified of the application and invited to participate in hearings

(b) the Victorian Civil and Administrative Tribunal must consider the factors that the responsible authority would have been required to consider in determining a matter under the Planning and Environment Act 1987 (Vic) such as:

i. the objectives of planning in Victoria

ii. the provisions of the relevant planning scheme that apply to the land the subject of the application, including decision-making guidelines in planning schemes

iii. information provided by the responsible authority.

41 Orders under the Act should have effect regardless of requirements for consent or authorisation under local tree protection laws made under the Local Government Act 1989 (Vic).

42 Where Recommendation 41 applies, the following safeguards should apply:

(a) the Victorian Civil and Administrative Tribunal must afford the relevant council tree protection laws significant but not determinative weight in the decision-making process

(b) the Tribunal should invite council to appear at a tree dispute hearing or to provide a written submission.

43 Section 86 of the Heritage Act 2017 (Vic) should be amended to provide that the operation of the Heritage Act is subject to any order under the new Act where the Victorian Civil and Administrative Tribunal determines that a registered tree or a tree situated in a heritage place poses an imminent danger to life or property.

44 Where Recommendation 43 applies, the following safeguards should apply:

(a) Heritage Victoria must be notified of the application and be invited to participate in the hearing

(b) the Victorian Civil and Administrative Tribunal should consider the factors that Heritage Victoria would have been required to take into account pursuant to the Heritage Act 2017 (Vic) and any information provided by Heritage Victoria.

45 Where a registered tree under the Heritage Act 2017 (Vic) or a tree in a heritage-listed place is ordered to be removed by the Victorian Civil and Administrative Tribunal under the Act, the Tribunal should have regard to any replanting requirements that Heritage Victoria may consider necessary to maintain the heritage value of the landscape.

46 Section 30C of the Fences Act 1968 (Vic) should be amended to provide the Victorian Civil and Administrative Tribunal with jurisdiction to make orders under the Fences Act where a tree:

(a) has caused, is causing, or is likely in the next 12 months to cause damage to a dividing fence, or

(b) forms part of the fence that has caused, is causing, or is likely in the next 12 months to cause damage to property or harm to any person.

47 The Act should apply to recognised weeds provided that the weed is a ‘tree’ and has caused, is causing or is likely to cause damage to property or land or harm to people in the next 12 months.

Chapter 11

48 The Act should state that new owners of land should be bound by and benefit from the outcome of legal action.

49 The Act should state that new owners are bound to the extent the original owner has not completed the order or has an ongoing obligation to carry out the Order.

50 Only immediate new owners may benefit from orders made in the original owner’s favour.

51 The Act should state that the date from which new owners will be bound and will benefit from the outcome of legal action is the date of settlement.

52 Any timeframes stipulated in the orders should re-commence on the date of settlement.

53 The Act should state that purchasers should be notified of any legal action commenced or underway at the time of the sale, or orders made under the Act. The Act should further state that copies of the application or order must be provided with a Section 32 Vendor Statement.

54 The Due Diligence Checklist under Division 2A of the Sale of Land Act 1962 (Vic) should be amended by Consumer Affairs Victoria to include information about the effect on new owners of legal action and orders made under the proposed Act.

55 The Sale of Land Act 1962 (Vic) should be amended to include a provision under Section 32 that requires disclosure of legal action under the proposed Act at the time of sale, or if legal action has concluded, disclosure of incomplete or ongoing orders. The Sale of Land Act 1962 (Vic) should also stipulate that copies of the application and order are to be provided.

56 If a party to a tree dispute enters into a contract of sale of land while legal action under the Act is underway, the Act should require that party to notify the Victorian Civil and Administrative Tribunal about the sale as soon as possible after the contract of sale has been fully executed.

Chapter 12

57 A website should be established by the Department of Justice and Community Safety which would provide:

(a) guidance on how to negotiate with your neighbour, including a sample standard letter that affected neighbours can use to communicate with the tree owner about a problem tree

(b) information about informal dispute resolution mechanisms

(c) detailed information on alternative dispute resolution and a link to the Dispute Settlement Centre of Victoria website

(d) guidance on engaging appropriately qualified arborists

(e) a step-by-step overview of the Act

(f) information on how to commence proceedings

(g) guidance about how to seek information about other laws that may apply from government authorities and local councils.

58 The Victorian Civil and Administrative Tribunal should provide supporting information for parties about the operation of the Act and Tribunal processes. Resources could include:

(a) a detailed information guide, similar in format to the guide developed by the Magistrates’ Court for fencing disputes

(b) information about key decisions made under the Act

(c) an annotated version of the Act outlining how the Tribunal has interpreted particular provisions and highlighting key cases

(d) a link to the Dispute Settlement Centre of Victoria website

(e) key Practice Notes relevant to tree disputes, for example, about the provision of expert evidence and alternative dispute resolution.

59 The services of the Dispute Settlement Centre of Victoria should be promoted more broadly. Community engagement workshops could be conducted for the arboricultural industry and other interested organisations and professional bodies.

60 Local councils should continue to provide resources to the community relevant to tree disputes. These resources could include:

(a) tree planting guidelines suited to local areas

(b) fact sheets on the application of local tree protection laws

(c) information about engaging appropriately qualified arborists.

61 The arboricultural industry should provide information to the community about how people can identify and engage appropriately qualified arborists.

Chapter 13

62 The Minister should review the Act after a period of five years from the date of commencement to determine whether the policy objectives of the Act remain valid and whether the legislation remains appropriate for securing those objectives. A report on the outcome of the review should be tabled in each House of Parliament within 12 months after the end of the review.

63 Matters that should be examined as part of the review include:

(a) the effectiveness of zoning provisions in the Act

(b) the effectiveness of the definition of adjoining land in the Act

(c) if there is a need for the Act to be expanded to include a formal branch removal notice process

(d) if there is a need to expand the scope of the Act to trees blocking access to sunlight and views (including high hedges).