Neighbourhood Tree Disputes: Report (html)

6. Informal resolution of neighbourhood tree disputes

Introduction

6.1 Informal resolution refers to negotiating an outcome without going to court or a tribunal. It can involve legal tools such as mediation or it might simply involve neighbours talking to each other. Because neighbours live close together and have ongoing relationships, solving a tree problem informally will often provide a better result.

6.2 In Victoria, neighbours can resolve their dispute without initiating legal proceedings through neighbour-led resolution, abatement and community-based alternative dispute resolution (ADR).^[1] This chapter discusses how these informal resolution approaches in Victoria should fit within the framework of a new tree disputes Act. The approach to informal resolution in other states is considered as well as the views of the community on these matters. The chapter concludes with recommendations that emphasise the ongoing importance of informal resolution when a new Act is introduced.

6.3 The approaches considered in this chapter are:

• neighbour negotiation and community-based mediation

• abatement

• a formal requirement in legislation for ‘reasonable attempts to reach negotiation’

• the inclusion of tree owner responsibilities in legislation

• the inclusion of branch removal notices in legislation

• the inclusion of a written notice process in legislation

Other jurisdictions—resolving disputes informally

Neighbour-led negotiation and community-based mediation

6.4 The Queensland Government encourages neighbours to discuss the issue and resolve the matter between themselves: ‘taking time to talk the problem through could save you time and money’.^[2] The website provides information on the most effective ways to begin this process.^[3] Similarly, the New South Wales Government’s Community Justice Centres (CJCs) encourage neighbours to talk to one another when the tree dispute arises. Their website states, ‘Talking to your neighbour as soon as possible may avoid or resolve any problems. It will also help maintain a positive relationship, making it easier to deal with other issues in the future.’^[4] It states that taking a matter to court ‘should always be the last resort’ and that ‘knowing your legal rights and obligations may also help you resolve your neighbour dispute’.^[5]

6.5 Neighbours may need to enlist the help of an independent third party to facilitate negotiation where neighbour led negotiation fails. Free mediation services are available to the community in Queensland for neighbourhood disputes through Dispute Resolution Centres. ^[6] CJCs in New South Wales provide free mediation services.^[7] In New South Wales disputes between neighbours are the most frequent type of dispute received by CJCs, and when neighbours agree to mediation, most disputes are resolved—81 per cent in 2017–18.^[8] However, the NSWLEC noted that approximately half the applicants provide the Court with a letter from the CJC stating that the neighbour refused to participate in voluntary mediation.^[9]

6.6 In Tasmania, private and government organisations provide mediation services.^[10] However, there is a lack of free alternative dispute resolution (ADR) services for general disputes in Tasmania.^[11]

Abatement

6.7 The common law self-help remedy of abatement allows an affected neighbour to remove parts of a tree that encroach onto their land up to their boundary line.

6.8 The remedy of abatement has not been modified under the NSW Act.^[12] An affected neighbour is entitled to trim overhanging branches up to boundary lines or install root barriers on boundary lines. Any trimmed branches must be returned to the tree owner. The neighbour does not have to provide notice before carrying out abatement. An affected neighbour’s right to abate may be limited by environmental planning policies^[13] or Tree Preservation Orders in New South Wales.^[14] If these protections apply, council authorisation may be required to carry out works to the tree.^[15]

6.9 The Queensland Act modifies the common law right to abatement to the extent that the affected neighbour can now choose whether or not to return abated parts of the tree to the tree owner, including fruit.^[16] This modification only applies to situations that fall within the jurisdiction of the Queensland Act.^[17] The right to abatement may also be limited by Vegetation Protection Orders and other orders imposed by local and state government to protect trees in Queensland.^[18]

6.10 The Tasmanian Act modifies the common law right to abatement in a similar way to the Queensland Act.^[19]

Informal resolution in the interstate Acts

6.11 The statutory schemes in New South Wales, Queensland and Tasmania encourage people involved in tree disputes to resolve them informally. There are subtle differences in how the schemes accommodate informal resolution.

6.12 The Queensland and Tasmanian Acts contain overarching provisions that encourage the use of informal resolution. These provisions are not binding. They operate in conjunction with other legislative mechanisms.

6.13 The Tasmanian Act includes a provision that enables an affected neighbour to request a tree owner to take action to ensure that land is no longer affected by the tree either verbally or in writing. Both parties are required to make reasonable attempts to prevent the land being affected by the plant or to minimise the degree to which land is affected.^[20]

6.14 The Queensland Act encourages informal resolution and makes it clear to neighbours that they have the option to resolve their dispute through neighbour-led negotiation, as well as the formal rights and processes available under the Queensland Act.^[21] The QLRC recently recommended that the Queensland Act should include a ‘non-exhaustive list of examples of steps that could be taken by a person to attempt to resolve an issue informally’.^[22] The QLRC observed ‘that users of the legislation are often unsure what is intended by the references to ‘informal’ resolution. This has the potential to undermine the aim of the provisions, and the wider objectives of the Act, to encourage and assist neighbours to resolve issues themselves’.^[23] Specifically, the QLRC suggested:

• approaching the other person, directly or in writing, to notify them of the issues and offering to discuss them;

• providing information to the other person to help them understand the issues and how they might be resolved, such as a quotation for any proposed work or a letter from a tree expert about the danger posed by the tree;

• inviting the other person to take part in a form of assisted dispute resolution, such as negotiation or mediation;

• taking steps to follow any local council process for resolving nuisance trees^[24]

• other informal resolution processes provided under the Queensland Act rather than legal action.^[25]

6.15 The QLRC also recommended that the Queensland Act should refer to mediation provided by a Dispute Resolution Centre as an example of how neighbours may attempt to resolve their dispute informally.^[26] Neither of these recommendations have been implemented at the time of writing.^[27]

6.16 Additional informal resolution mechanisms and pre-conditions to orders are also included in the interstate Acts and are discussed next.

A formal requirement in the interstate Acts for ‘reasonable attempts to reach agreement’

6.17 The Land and Environment Court of New South Wales (NSWLEC) must not make an order under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (NSW Act) unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.^[28] The intention is that legal action should be a last resort.^[29]

6.18 This reasonable effort does not have to be made before the filing of an application (though this is desirable) but it must be made before the Court makes any orders.^[30] Writing to the tree owner, serving them with an application, or engaging in Alternative Dispute Resolution would qualify as a reasonable effort.^[31] Even the presence of parties at a hearing may demonstrate a reasonable effort.^[32]

6.19 Chief Justice Preston has explained that this requirement is ‘less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement’^[33] and that exhaustive negotiation is not required.^[34]

6.20 Similar provisions apply in Queensland and Tasmania. The Queensland Civil and Administrative Tribunal (QCAT) may make an order pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (QLD) if it is satisfied that the neighbour has made a reasonable effort to reach agreement with the tree owner. This provision is substantially the same as in the NSW Act, and the criteria are the same.^[35] The requirement can be fulfilled by requesting the tree owner to fix the issue,^[36] engaging in mediation,^[37] or a Tribunal-ordered ADR process.^[38]

6.21 Tasmania has a slightly different approach. Before hearing an application, the Resource Management and Planning Appeal Tribunal (RMPAT) must consider whether the parties have made reasonable attempts to resolve the matter. If not satisfied, it may direct parties to attempt to resolve the matter.^[39] In deciding this point RMPAT may take into account:

• requests made verbally or in writing, in a Branch Removal Notice or in a Written Notice^[40]

• whether the tree owner has refused to carry out work because they reasonably believe the health or structural stability of the tree will be affected or that safety will be compromised.^[41]

Tree owner responsibilities in the interstate Acts

6.22 Unlike the NSW Act, the Queensland Act includes tree-keeper (tree owner) responsibilities.^[42] During parliamentary debate the Attorney-General explained:

The proposed bill provides clear direction about a tree-keeper’s responsibilities and reflects the strong community view that a tree owner, known as the ‘tree-keeper’ in the Bill, should be responsible for the proper care and maintenance of a tree growing on their land in the neighbourhood.^[43]

6.23 The Queensland Act states that the tree owner is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land, and ensuring that the tree does not cause serious injury to a person or damage to property or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.^[44] The Act clearly states that a separate cause of action is not created for a breach of any of these responsibilities.^[45]

6.24 The Tasmanian Act also includes responsibilities for tree owners. The responsibilities under the Tasmanian Act essentially mirror those under the Queensland Act and do not create a separate cause of action for a breach of any of the responsibilities.^[46]

Branch removal notices in the interstate Acts

6.25 The Queensland and Tasmanian Acts incorporate a notice process for the removal of certain overhanging branches. These provisions provide an affected neighbour with a mechanism for requesting the tree owner to trim overhanging branches. Failure to do so entitles the affected neighbour to carry out the work themselves and recoup the associated costs. This process was introduced in Queensland to help people who had a right to abate but were unable to prune or remove overhanding branches themselves.^[47]

Branches need to be a particular size

6.26 The overhanging branch must be a maximum of 2.5 metres above ground level and extend over the affected neighbour’s land at least 50 centimetres from the common boundary.^[48]

6.27 The maximum height and minimum length requirements aim to capture the spaces that are frequently encroached upon by overhanging branches. The QLRC explained that ‘overhanging branches that are 2.5 metres or less above the ground may impede the passage of a person or vehicle. It is also a lower and safer height range to carry out the work of cutting and removing the branches’.^[49] A length of at least 50 centimetres beyond the common boundary provides a ‘reasonable balance between the right of a neighbour to have uninterrupted use of their property, and the burden that a tree-keeper may experience as a result of the ongoing need to trim or cut back trees close to the boundary’.^[50] The QLRC acknowledged that that there is ‘scope for a range of differing views about the appropriate height’.^[51]

The effect of the notice

6.28 If the branch meets the height and length requirements, the affected neighbour can choose to give the tree owner a written notice for branch removal. ^[52] The notice must:

• state a time for pruning or removal that is at least 30 days away^[53]

• request the tree owner to respond in writing, at least one day before the works are scheduled, with information about who will be doing the work and when^[54]

• give permission to the tree-keeper (owner) or their contractor to enter the affected neighbour’s land to remove the branch between 8am and 5pm^[55]

• have attached at least one quote of the cost^[56]

• be accompanied by a copy of the relevant section of the Queensland Act.^[57]

6.29 Substantial compliance^[58] with the notice requirements is considered adequate.^[59]

6.30 The neighbour may download and use Form 3: Notice for Removal of Particular Overhanging Branches from the Queensland Government’s website.^[60] However this form is not compulsory. The QLRC recommended the use of a compulsory form for consistency and clarity but this has not been implemented.^[61]

6.31 A tree owner acting on the notice can obtain an independent quote, do the work themselves, or hire a contractor.^[62]

6.32 It is the affected neighbour’s responsibility to consider public liability insurance before giving a person permission to enter their land. It is the tree owner’s responsibility to consider a contractor’s insurance.^[63]

Failure to act on the notice

6.33 If the tree owner does not respond to the notice within 30 days, the affected neighbour can arrange for the overhanging branches to be pruned or removed up to the boundary line.^[64] They can do this themselves or engage an arborist. The affected neighbour may return the cut branches to the tree owner, but this is not required.^[65]

6.34 The affected neighbour can then recoup from the tree owner up to $300 for reasonable expenses. The affected neighbour cannot recover the costs of their own labour in removing the branches themselves.^[66] The $300 contribution is a ‘limited right’ to recoup some of the total cost.^[67] The QLRC recommended increasing the amount to a maximum of $500 or any greater amount prescribed by legislation, however this has not been implemented. The QLRC explained that the current maximum $300 liability was

‘insufficient to meet the costs to the neighbour of having work done to cut and remove overhanging branches 2.5 metres or less above the ground in all cases’.^[68]

6.35 If the tree owner does not pay, the affected neighbour can pursue the debt in QCAT as a minor civil claim.^[69]

6.36 Where the costs are significant and substantially exceed the $300 cap, then an affected neighbour would not be able to recover those costs using this process. Instead, they may choose to commence legal action in QCAT if the jurisdictional requirements under the Queensland Act are met.^[70]

Safeguards

6.37 This process does not override any requirements to obtain authorisation or permits under any other law or local law.^[71]

6.38 An affected neighbour cannot use this notice if they have issued a notice for any tree within the previous 12 months.^[72] The QLRC considered this a fair balance between the affected neighbour’s use and enjoyment of their land and the tree owner’s liability. The QLRC further explained that the common law remedy of abatement was available to an affected neighbour who needed further intervention^[73] or for other branches or parts of the tree that are not captured by this process. In addition, an affected neighbour can exercise their right to abate or commence legal action in QCAT.^[74]

The Tasmanian approach

6.39 The Tasmanian ‘Branch Removal Notice’ procedure in Part 3 of the Act is modelled on the Queensland Act and is substantially the same. The Tasmanian Department of Justice has developed a template notice form which it recommends people use.^[75]

6.40 The Tasmanian Act provides that a ‘prescribed maximum amount’ of $500 can be recouped from the affected neighbour.^[76]

6.41 Similar safeguards apply under the Tasmanian and Queensland Acts. However, in Tasmania an affected neighbour cannot use the notice procedure if they have issued a notice within the previous 12 months for the same tree to the tree owner (unless there is a new tree owner).^[77] In Queensland the safeguard prohibits issuing of a notice if a notice has been issued for any tree within the previous 12 months.^[78]

6.42 In Tasmania, the affected neighbour can pursue money owed in the Magistrates’ Court.^[79] If the tree owner disagrees about the amount, they may apply to the Magistrates’ Court for a determination of a ‘fair and reasonable’ amount, which they are then liable to pay.^[80]

General notice process in the Tasmanian Act

6.43 Under the Tasmanian Act an affected neighbour can also issue a written notice to the tree owner that:

• states the grounds on which the tree is affecting their land^[81]

• states the action the affected neighbour considers the tree owner should take to remedy the issue^[82]

• requests a written response from the tree owner within a period of not less than 14 days.^[83]

6.44 The Tasmanian Department of Justice has developed a template notice form which it recommends people use.^[84] This process is likely to be of benefit where an affected neighbour seeks to resolve the tree dispute informally but the tree or tree parts are not captured by the branch removal process or are unable to be abated. This written notice appears to have been developed as a means of facilitating clear communication between neighbours. It does not set out any monetary amounts able to be recovered or what happens if the tree owner ignores the notice.

Community responses—resolving disputes informally

6.45 Responses from the community suggest that informal resolution is the primary way people currently try to resolve their tree disputes.^[85] Most people explained that they did not take legal action^[86] because it was too costly,^[87] would damage neighbourly relations^[88] or because the issues raised were unlikely to meet the requirements of a legal claim.^[89]

6.46 The City of Boroondara stated that informal negotiation between neighbours is useful and has helped to resolve many disputes.^[90] However, many affected neighbours who responded to the Commission reported that when they attempted to negotiate, the tree owner was uncooperative,^[91] ignored them^[92] or was hostile.^[93] Some community members reported that lawyers were engaged because their neighbour refused to communicate informally.^[94]

6.47 The Commission observes that members of the community who were most likely to respond to the inquiry were those who had a poor experience trying to resolve their disputes informally. Therefore, the views and experiences of those who were successful in resolving their dispute informally may not have been captured to the same extent.

Community responses—Community-based alternative dispute resolution

6.48 The most accessible form of ADR in Victoria is through the free mediation services by DSCV.

6.49 DSCV provided the Commission with examples of successful mediations in relation to neighbourhood tree disputes:

Issue 1: Party A is tired of cleaning leaf litter from their gutter and pool. Party A has approached Party B on a number of occasions requesting that they trim their tree. Party B advises that Party A has the right of abatement and can trim them himself up to the fence line at his own cost.

Outcome: Party A seeks a contribution from Party B towards the trimming of the trees on an annual basis. Party B agrees in principle pending the provision of a number of quotes.

Issue 2: Party A, without notice, elected to trim encroaching branches up to the fence line. Party B forms the view that the trimming was too aggressive and has harmed the tree and/or encroached on their boundary.

Outcome: the parties agreed to a maintenance schedule for the trees and a communication plan where either party elects to trim the tree.^[95]

6.50 Many people were keen to try to mediate a resolution to their disputes but were unable to engage in mediation because their neighbour would not agree to participate.^[96] Other concerns were expressed about the non-binding nature of mediated resolution,^[97] and an inability to locate a neighbour to organise mediation where, for example, the home is only occupied periodically.^[98]

6.51 In Chapter 3 it was identified that DSCV data from December 2011 to May 2017 suggests that tree enquiries are less likely than other matters to progress to a dispute resolution outcome including through mediation.^[99] The factors to which DSCV attributed the low resolution rates for these disputes were noted. Some of the reasons include that:

• rights and obligations under the law are unclear, making it hard to identify what parties can or cannot do without having to go to court to have a magistrate decide

• neighbours are not explicitly required to negotiate by legislation or case law and many therefore choose to opt out of the mediation process.^[100]

6.52 Anecdotally DSCV suggests that the disputes that are most likely to settle are disputes between an affected neighbour and a landlord. DSCV may be contacted to approach the landlord when attempts to negotiate with the tenant have been unsuccessful. DSCV suggests that disputes about roots are generally the hardest to resolve because they are more complex than overhanging branches. DSCV also observes that the parties’ personalities and attitudes will also influence the likelihood of success at mediation.^[101]

6.53 Surprisingly, a large number of private arborists at ArborCamp2018 advised they were unaware of the free mediation services provided by DSCV. Although private arborists frequently become involved in tree disputes, they rarely refer neighbours to DSCV.^[102]

Ben Kenyon suggested that DSCV’s services should be more widely publicised.^[103]

6.54 Some people suggested or indicated that mediation services should be able to compel or force the other party to the tree dispute to participate in mediation.^[104]

Community responses—Abatement

6.55 Most responses to the consultation paper agreed that abatement should continue to be available under any new Act.^[105] As one community member noted, ‘in many cases and with reasonable neighbours, it is enough to solve the day-to-day issues with overhanging branches’.^[106]

Modifying the right to abate

6.56 Nearly all community members who responded to this issue supported modifying the right to abatement and made specific suggestions about how this should be done.^[107] One submission stated that ‘the right of abatement should remain, but a greater responsibility ought to be placed on tree owners to ensure that their tree/s do not threaten, cause annoyance or harm to neighbours’.^[108]

6.57 Changing the remedy so that the affected neighbour was not required to return pruned material such as branches, roots or other tree parts to the tree owner, was broadly supported.^[109] Responses indicated that there is confusion in the community about this.^[110] Some people stated that the return of abated tree parts, particularly without any notice, may actually cause a tree dispute.^[111] One survey respondent noted that ‘wilfully throwing branches over to your neighbour’s property’ could result in ‘potentially damaging plants or endangering others or hurting animals’.^[112]

6.58 Another community member, who identified as a volunteer at Victoria State Emergency Service (SES), explained how there can be confusion about who to return branches or other tree parts to during emergency operations:

Often I and my fellow volunteers are called to trees that have fallen or partially fallen where the limbs come from a neighbouring property. Sometimes the occupant complains to us about the tree being a nuisance. While we as members of the SES cannot and do not provide advice about tree disputes, we can only clear the elements of trees that block emergency access. Once the tree material has been cleared, it is unclear who is responsible for the disposal of that material. Sometimes we throw it back over the fence. Sometimes we drag it to the nature strip. And sometimes we leave it where it lies. I believe there should be guidelines for who is responsible for this material …^[113]

6.59 Arborist Robert Mineo noted that in some situations a neighbour may want fruit or branches (for firewood) to be returned.^[114]

6.60 Another change commonly suggested was modifying the law so that the tree owner could not object to or hinder any tree works undertaken by the affected neighbour in the course of abating.^[115] Some people suggested introducing a process whereby the affected neighbour gives notice to the tree owner, similar to a Fencing Notice under section 13 of the Fences Act 1968 (Vic).^[116] A Notice to Fence is a formal notice that a person can give to their neighbour, which outlines proposed construction or repairs to a dividing fence.^[117] The notice contains details such as the location of where the works are to be carried out; the type of works required who will carry out the works (the contractor); a cost estimate and how much each neighbour should contribute.^[118] The neighbour has 30 days to respond.^[119]

6.61 Some community members suggested that the tree owner should be responsible for paying the cost of tree works or other maintenance incurred by the affected neighbour in the course of abating the nuisance.^[120] One community member explained:

At present the [affected neighbour] bears all of the expense and inconvenience of cutting back their neighbours trees. This is utterly outrageous. We have spent an horrendous amount of money abating the nuisance. We have now reached the point where it is no longer even possible for an arborist to trim our neighbours tree—the branches are too high for chainsaws on the end of long poles and cherry pickers cannot [get] into the narrow area along our fence.^[121]

6.62 Another response favoured the approach taken in New Zealand. In New Zealand an affected neighbour may seek an order in the District Court for any costs incurred as a result of abating branches or roots causing damage to property.^[122] It was suggested that if tree owners are responsible for paying for the costs of tree works then affected neighbours could more easily carry out works that would resolve the issue, such as installing a root barrier and annual tree pruning. The submission also noted that putting responsibility on the tree owner for the cost of tree works would be likely to make them more willing to listen to an affected neighbour’s concerns.^[123]

6.63 Pointon Partners suggested that the current scope and application of the remedy did not need to change.^[124]

Interaction with Australian standards

6.64 A number of arborists identified the matter of the interaction between abatement and the relevant Australian Standards on pruning and other tree works that arborists are trained to follow.^[125] The City of Boroondara advises its residents about the importance of conducting tree works in accordance with the Australian Standards to ensure the health and structural integrity of the tree. Boroondara stated that the best way for community members to adhere to the Australian Standards is to engage a suitably qualified arborist.^[126]

6.65 One person suggested that abatement should be expanded to allow affected neighbours to prune beyond property lines without committing trespass. It was suggested that this should be allowed where a ‘genuine need arises’, such as where the tree owner refuses to cooperate with reasonable requests for tree works, or for practical reasons where it may be necessary to cross boundaries due to narrow or confined areas, or for reasons of maintaining the health and structure of the tree.^[127]

6.66 Another response favoured only allowing abatement by a qualified arborist in accordance with the Australian Standards AS 4373-2007—Pruning of Amenity Trees and AS 4970-2009—Protection of Trees on Development Sites. It was argued ‘this would protect both parties by avoiding excessive, unqualified canopy or root pruning that effectively destroys someone else’s property and increases tree hazard, and that further complicates dispute situations’.^[128]

6.67 Some arborists favoured incorporating the Australian Standards into the new Act to improve the resolution of tree disputes more generally.^[129] Dr Gregory Moore OAM explained,

These standards if properly applied could significantly reduce tree disputes between neighbours and also reduce the likelihood of tree damage and the costs of damage to trees and litigation … It is also worth noting that these [standards] can be useful beyond their defined purposes.^[130]

Community responses—a formal requirement in the new Act for ‘reasonable attempts to reach agreement’

6.68 The consultation paper asked whether parties should be required to satisfy any preconditions before orders could be made under a new Act. A number of people supported the requirement that neighbours attempt to resolve their tree dispute informally before commencing legal action,^[131] either by way of neighbour-led negotiation, mediation or abatement.^[132]

6.69 A tree disputes consultant in New South Wales cautioned that such a precondition could limit parties’ ability to seek legal remedies, especially where the relationship has broken down and parties refuse to communicate. As a compromise, it was suggested that there should be a low threshold for meeting the requirement, for example, simply showing that a letter was sent to the neighbour about the issue. It was suggested that an advantage of such a precondition is the assurance that the legal scheme is used as a last resort.^[133]

6.70 The Victorian Civil and Administrative Tribunal (VCAT) did not support any precondition being included in the new Act.^[134] VCAT stated that it should not matter what the parties did or did not do before legal action and that a ‘come as you are’ approach would be fairer. This may reduce the chance of a ‘strikeout’ on a technicality,^[135] especially where parties are in a hostile situation. It would also prevent VCAT from being ‘caught up in administrative analysis of papers’.^[136]

Community responses—Tree owner responsibilities

6.71 Some people proposed that the new Act should clearly set out the responsibilities of neighbours in relation to their trees.^[137] Arborist Dr Karen Smith stated that the new Act should ‘clarify the rights and responsibilities of tree owners and affected neighbours so that disputes can be prevented from arising’.^[138] Arborist Ben Kenyon stated that the new Act should provide clarity about rights and responsibilities, otherwise it may cause confusion and frustration, causing disputes to escalate.^[139]

6.72 A number of affected neighbours told the Commission that the tree owner can choose to ignore the issue or refuse to assist because responsibility for managing a tree falls entirely on the neighbour who is being affected by it. This may present a significant burden in terms of cost and effort.^[140] As one survey respondent said, ‘The current law is very unfair. It is one-sided It will cost over $2,000 dollars to have it cut back to the fence line which won’t even resolve the issues. It is their tree it should be their responsibility to keep it within their property.’^[141]

6.73 QCAT stated that tree owner responsibilities under the Queensland Act are helpful because they provide clarity about the tree owner’s obligations. However, the Tribunal cannot ascertain whether these responsibilities prevent a tree dispute from reaching the Tribunal.^[142] QCAT explained that tree owner responsibilities overlap with the branch removal notice under the QCAT Act.^[143] Further, QCAT noted that these tree owner responsibilities are linked to and mirrored in the factors QCAT takes into account when making decisions and orders.^[144]

Community responses—Branch removal notices

6.74 The consultation paper asked whether other mechanisms should be available to assist people to resolve their disputes, such as a branch removal notice process as exists in the Queensland and Tasmanian Acts. There was some support for such a process.^[145]

6.75 Many people were in favour of shifting the responsibility for arranging and funding tree works from the affected neighbour to the tree owner.^[146] One community member favoured a process similar to issuing neighbours with a ‘Notice to Fence under the Fences Act 1968 (Vic) for seeking agreement about fencing works.^[147]

6.76 Most local councils that were consulted did not raise any major concerns with implementing a similar process in Victoria. Baw Baw Shire Council and the City of Port Phillip stated that such a process would provide clarity and assurance for neighbours.^[148] Nillumbik Shire Council, however, was concerned that this process may exacerbate a tree dispute. It was also concerned that a vindictive neighbour could issue a notice to recoup costs for unnecessary works.^[149]

6.77 Nillumbik suggested that care needed to be taken about the type of branches the notice could apply to. Nillumbik proposed that if a branch removal process was introduced there should be a safeguard trigger such as a maximum applicable thickness of a branch at the point it connects with the trunk or main stem. Without this safeguard, neighbours could remove large, significant branches that may destabilise a tree.^[150]

6.78 Arborist Robert Mineo did not support the introduction of a branch removal process. He noted the potential for a branch removal process to encourage and enable neighbours to cut away branches without arborist assessment, which could in turn adversely affect the tree.^[151]

The Commission’s conclusions—resolving disputes informally

6.79 Informal resolution is cost-effective, allows neighbours to come up with creative solutions to their problems,^[152] and may help to preserve neighbourly relations. Not all disputes will be suitable for informal negotiation. In many tree disputes relations between neighbours are so poor that resolution in VCAT is the best option. However, the more disputes that can be settled outside the tribunal system, the better.

Encouraging informal resolution in the new Act

6.80 The new Act should clearly state that nothing in the Act prevents parties from resolving their tree dispute informally between themselves.

6.81 The new Act should also include a non-exhaustive list of examples of the types of informal resolution tools that parties can use to resolve their disputes to help them understand their options better. The list recommended by the QLRC noted earlier is helpful.^[153]

Community resources

6.82 The new Act should be supported by extensive community resources in order to make the law more accessible and more widely understood. Supporting information should incorporate the examples of informal resolution tools referred to in the new Act—for example, neighbour-led resolution, mediation through DSCV and abatement—and explain how these mechanisms work as well as tips about good negotiating strategies.

6.83 A sample standard letter would also be a useful community resource to facilitate communication and negotiation. The community should also be better informed about the role of arborists. Obtaining independent professional advice in the early stages may assist parties to reach agreement out of the tribunal process. See Chapter 12.

Community-based alternative dispute resolution

6.84 The Commission acknowledges the small number of tree disputes currently resolved through DSCV-led mediation. Low resolution rates for tree disputes can be attributed to a number of factors including unclear rights and responsibilities.

6.85 Mediation is a useful tool to resolve some tree disputes quickly and cost-effectively as illustrated by DSCV examples of mediated outcomes noted above. There are clear advantages of resolving a tree dispute through ADR, such as more flexible processes and greater scope to come up with creative solutions that both parties agree to. Mediation is also confidential. Any agreement that is reached can also be kept confidential by agreement between the parties. The NSWLEC identified that agreement via ADR, unlike court orders resulting from legal action, produces no ‘winner’ or ‘loser’, which is helpful for preserving relations between neighbours. It was suggested that legal action which results in court orders may have less scope to resolve underlying interpersonal issues between neighbours.^[154]

6.86 Clearer laws will improve the resolution rates for community-based mediation. The introduction of the new Act will guide the community about how the law applies and address some of the concerns raised by DSCV. A new Act will help reduce the number of enquiries to DSCV and assist DSCV to resolve disputes that progress through its mediation service. The new Act will ensure that parties participating in mediation outside the VCAT process have a greater understanding of the way a matter would be resolved within VCAT and the range of likely orders. This will encourage parties to persevere with informal resolution.

6.87 The rate of ADR outside the VCAT process may also be improved if the supporting information for the new Act clearly states that engaging in mediation through DSCV is one of the ways that neighbours may choose to informally resolve their tree dispute. This would lift the public profile of the role of DSCV. Supporting information should also outline VCAT’s powers to refer parties to ADR in the formal tribunal process. This may also discourage parties from choosing to opt out of the informal mediation process.

6.88 DSCV should work with professional arboricultural associations to raise awareness about DSCV’s services so that arborists can inform neighbours and refer them to DSCV. See Chapter 12.

6.89 The new Act should not compel neighbours to participate in DSCV-facilitated mediation outside the tribunal process. Community-based mediation is voluntary.^[155] Any change compelling people to take part in mediation, other than as part of ADR ordered by a court or tribunal, would change the nature of informal community-based mediation.

6.90 In many situations, community-based mediation may not be helpful. In Queensland anecdotal evidence suggests that a reasonably high number of applicants in QCAT have attempted to resolve their matter through free mediation before proceeding to QCAT.^[156] Of these, a considerable number of people report that their neighbour ignored any agreement reached. The NSWLEC also noted that many applicants had unsuccessfully attempted mediation through CJCs.^[157]

6.91 Even so, a partially successful community-based mediation may help parties to narrow the issues in dispute for a subsequent VCAT hearing. The Commission is of the view that formal tribunal-ordered mediation may still be appropriate and successful even where community-based mediation was not. See Chapter 7 for a discussion on Tribunal

ordered ADR.

Recommendations

16 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.

17 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.

Modification of abatement

6.92 The Commission agrees with the majority of community responses which support the continued availability of abatement as a remedy. Abatement is an effective tool for resolving many tree disputes and may prevent them from escalating.

6.93 In keeping with interstate reforms, the common law abatement remedy should be modified by the new Act to the extent that an affected neighbour should no longer be required to return abated tree parts, including fruit.^[158]

6.94 The Commission is persuaded by the QLRC report and community feedback that the return of abated tree parts may cause a tree dispute or make it worse. However, neighbours should not be prevented from coming to their own agreement about how abated material is to be dealt with.

6.95 This modification should apply only to trees in zones captured under the proposed statutory scheme as recommended in Chapter 5. For example, in the farming context, it may be important to return tree parts such as branches containing important produce or feed for animals.

6.96 It should not be necessary to require an affected neighbour to give notice to a tree owner, whether verbally or in writing, before abating. This would limit the operation of a self-help remedy that is quick, simple and timely.

6.97 Abatement should remain subject to permit requirements under local planning schemes or other laws that seek to protect vegetation. This would act as an adequate safeguard against indiscriminate and potentially harmful pruning or cutting of environmentally and culturally significant trees.

Abatement costs

6.98 Many affected neighbours find the limited scope to recoup the costs of abatement unfair. The affected neighbour is generally wholly responsible for the cost. The tree owner is not required to reimburse the affected neighbour or contribute to the cost.^[159] However, the Commission does not support the modification of abatement so that affected neighbours can recoup from the tree owner any costs incurred.

6.99 Abatement was developed under the common law for any type of private nuisance.^[160] Allowing an affected neighbour to recoup the costs of abatement in the context of tree disputes would substantially displace the established common law, which only allows the costs to be recovered in limited circumstances where an affected neighbour has an obligation to mitigate damage that is already occurring.^[161] It would also alter the ‘self-help’ nature of the remedy, by making the remedy dependent on or affected by the cooperation or contribution of another party.

6.100 Finally, it may place an unfair cost burden on the tree owner for the simple fact of having a tree on their land. Neighbours who are concerned about the costs of abatement may choose to informally negotiate an arrangement with the tree owner, engage in mediation or take legal action under the new Act if the overhanging branch has caused damage or is likely to cause damage or harm. In the discussion below, the Commission also proposes that further consideration is given to a formal branch removal process in the new Act which would provide scope to recover limited costs associated with some abatement.

Entry onto the tree owner’s land

6.101 Access to the tree owner’s land may be necessary in some situations for practical reasons, such as where a branch needs to be cut at the juncture of the trunk or main stem, or in very small spaces. However, it would not be appropriate to remove liability for trespass as it applies to abatement. To do so would result in substantial intrusions on people’s land. Such a change may create a range of other issues including the removal of significant amounts of vegetation, disputes about the illegal destruction of vegetation and also potential physical altercations when neighbours disagree.^[162]

6.102 The law only allows a defence of ‘necessity’ in cases of trespass where it is necessary to ‘preserve life or protect property from real and imminent harm’.^[163] The majority of ordinary tree encroachments are unlikely to satisfy this threshold. Allowing an affected neighbour to enter the tree owner’s land without any independent assessment of the need would significantly erode a landowner’s exclusive possession of and control over their property.^[164]

6.103 The current limitation of abating within boundary lines appropriately balances competing interests. If a neighbour is concerned about imminent damage or harm and does not think that abatement will remedy the situation he or she may commence a matter in VCAT and seek an appropriate remedy. The orders recommended in Chapter 9 include entry to land to carry out tree works and to obtain a quote for works to a tree that is subject to the order. If the matter is urgent it would be triaged by the Tribunal.

Australian Standards

6.104 The Commission accepts the importance of the Australian Standards for tree works. However, it would not be reasonable or practicable to restrict a person’s right to abate so that it can only be exercised by a qualified arborist in accordance with the Australian Standards. This would significantly limit the usefulness of the remedy, particularly for minor encroachments or where parties cannot afford an arborist.

6.105 Community members who undertake abatement without an arborist should not be required to comply with the Australian Standards on pruning. The Australian Standards are highly technical and difficult for the community to interpret and apply. Additionally, they are not easily accessible and are only accessible through purchase.^[165]

6.106 The Commission concludes that the scope of abatement and the Australian Standards cannot be reconciled. The Australian Standards are intended to be used as guides and are not statutory instruments.

6.107 The only way for community members to comply with the Australian Standards is to engage a qualified arborist. Professional arboriculture associations and local councils should consider raising community awareness about the benefits of hiring a suitably qualified arborist. These recommendations are contained in Chapter 12. In addition, recommendations are made in Chapter 9 that VCAT orders be made in accordance with the Australian Standards and that VCAT may further specify that works must be carried out by a suitably qualified arborist.

Recommendation

18 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.

Not recommended: a formal requirement in the Act for ‘reasonable attempts to reach agreement’

6.108 The Commission is not persuaded that the new Act should include a requirement that an applicant must have made reasonable attempts to resolve the issue before an order can be made by VCAT. Such a requirement is included in the NSW and Queensland Acts.

6.109 Community feedback suggests that many neighbours do not necessarily want to take legal action against their neighbour, due to the stress and costs involved and the possibility of damaging their relationship.^[166] As a result, legal action is generally only likely to be initiated as a last resort. It is reasonable to assume that when a neighbour commences legal action, the dispute has escalated to a point where resolution may no longer be possible without VCAT involvement. The Commission also notes VCAT’s concern that any formal pre-condition may also lead to VCAT being ‘caught up in administrative analysis of papers’ on the issue of the extent of informal negotiation.^[167] Further, because the threshold for meeting this statutory requirement is very low in New South Wales and Queensland, its practical effect may be limited.

6.110 However, these interstate provisions perform an important role in reinforcing to the community that legal action should be a last resort. The VCAT Act provides the Tribunal with the power to refer parties to ADR, such as compulsory conference or mediation.^[168] Parties may be referred to a compulsory conference before the hearing, while a referral to mediation may occur at any point in proceedings where the Tribunal deems it appropriate.^[169] The Commission is of the view that VCAT should be encouraged to use those existing powers in the context of tree disputes.

6.111 Any information that the Tribunal member can glean from previous informal discussions may also act to narrow the issues in dispute in a subsequent hearing. This is discussed further in Chapter 7. It was also recommended in Chapter 5 that the application form for initiating proceedings in VCAT require parties to detail what steps they have taken to resolve the dispute informally.

6.112 To reinforce the importance of attempting to negotiate informally where possible, information provided by VCAT about the operation of the new Act should specifically inform parties that VCAT can order them to participate in ADR. See Chapter 12.

Not recommended: tree owner responsibilities in the Act

6.113 The new Act should not contain non-actionable tree owner responsibilities, such as those included in the Queensland and Tasmanian Acts. The Commission favours the legislative approach in the NSW Act because it is simpler and more straightforward. The inclusion of tree owner responsibilities that are non-binding, together with a civil cause of action for damage or harm, may create confusion in the community. The Commission is persuaded by the comments of the NSWLEC that tree owner responsibilities may intensify tree disputes and may have the effect of diminishing the urban forest if tree owners feel obliged to prune or remove their trees to meet their responsibilities.^[170] While tree dispute issues affect many people, it would be a disproportionate response to create responsibilities in the new Act that extend to all tree owners on private land, even if they are nonbinding.

6.114 Clear decision-making principles under the new Act together with clear community information will provide guidance to the community about the application of the law to their own disputes. See Chapter 8. Ultimately, the ability of an affected neighbour to initiate a matter in VCAT and to obtain a quick remedy may motivate a tree owner to manage their tree in mutually beneficial ways.

For future consideration: branch removal notices

6.115 The introduction of a branch removal notice in the new Act received some community support.^[171] However, some responses cautioned that care needs to be taken in determining which branches such a process would apply to, and how branches are pruned so as to avoid damaging trees.^[172]

6.116 The QLRC found that the branch removal notice is ‘working well’ in Queensland and is ‘a valuable means by which many disputes can be adequately addressed’.^[173]

6.117 A branch removal notice would address one of the most common causes of tree disputes in Victoria—overhanging branches.^[174] The Commission acknowledges that unless an overhanging branch issue raises concerns about damage or harm, it would not fit within the ambit of the new Act (see Chapter 5). In this situation the affected neighbour would need to pursue an informal remedy such as alternative dispute resolution^[175] or abatement or bring an action in nuisance or negligence^[176] at common law.

6.118 A formal branch removal notice process would facilitate communication between parties by setting out clear procedural steps that neighbours are required to follow to address concerns. It would also put the tree owner on notice and may assist in breaking a negotiation stalemate, especially where a tree owner is uncooperative. During the parliamentary debates for the Neighbourhood Disputes Resolution Bill 2010 (Qld), the Attorney-General of Queensland noted that a branch removal process may be particularly beneficial to people who cannot exercise their right to abate for physical or financial reasons.^[177]

6.119 A branch removal notice would also address community concerns about the imbalance of rights between the tree owner and affected neighbour. The notice would formally shift responsibility for pruning or removing overhanging branches from the affected neighbour to the tree owner, subject to the limitation that the scheme would only apply to particular branches in ‘high traffic’ areas. Where the tree owner does not comply, a limited right to recoup the costs of tree works arranged by the affected neighbour up to a statutory limit, as occurs in Queensland, may help reduce a proportion of the financial burden on affected neighbours. It may also provide a financial incentive to a tree owner to address their neighbour’s concerns.

6.120 The Commission does not recommend that the new Act include a branch removal notice process from the outset. Instead, if necessary, the Act could be broadened to include this process when it is reviewed after five years of operation (see Chapter 13). At that time, it will be clearer if there is a genuine need for a formal branch removal process.

6.121 Further consultation should occur with the Queensland and Tasmanian Governments, as well as dispute resolution centres and community legal centres about how widely the branch removal notice is used, how well it is understood and whether it is effective in reducing the number of matters that proceed to a hearing in QCAT or RMPAT. Consultation should also consider any disadvantages of such a process and how well it fits with the underlying policy of the new Act. Further consultation is needed because this process would complicate the operation of the new Act. The branch removal notice processes in the Queensland and Tasmanian schemes work in conjunction with legislated tree owner responsibilities which the Commission is not recommending for the new Act. Therefore, consultation should also ascertain whether a statutory notice process would work effectively in a scheme that does not include tree owner responsibilities.

6.122 QCAT told the Commission that because QCAT does not receive applications for the types of disputes captured by this process, QCAT cannot comment definitively on the effectiveness of this mechanism.^[178] The Tasmanian scheme has only recently commenced, and it may take some time before its effectiveness can be assessed. The Commission also observes that NSWLEC and QCAT manage a similar number of tree disputes even though New South Wales does not have a branch removal notice process.^[179]

6.123 If a branch removal notice process is introduced the Commission’s preliminary view is that:

• It should be accompanied by a compulsory form that puts the tree owner on notice and includes details about the overhanging branches and each neighbours’ rights and include a response form.

• It should incorporate safeguards similar to those contained in the Queensland and Tasmanian Acts.

• The number of notices that can be issued for any tree in a calendar year should be limited to prevent the notice being used vexatiously and to prevent the unnecessary removal of vegetation.

• It should include a maximum statutory amount that can be recovered and that the cost of the affected neighbour’s own labour should be excluded. Consultation should be undertaken about what would be an appropriate statutory cap noting that the QLRC recommended that the amount be increased from $300 to $500 and that the cap is $500 in Tasmania.^[180]

• A third safeguard trigger (such as the thickness of the branch) should not be included as this would be difficult for community members to measure, especially where they do not have access to the tree owner’s land.

6.124 Importantly, a branch removal notice should supplement the options available to people to resolve their disputes before initiating an application in VCAT. Branches covered by this process would continue to be able to be removed by the common law remedy of abatement and the affected neighbour would still be able to take legal action in VCAT if they are seeking particular repairs or to recoup costs over and above the statutory cap.

Not recommended: a general notice process

6.125 The Commission does not recommend that the new Act incorporate a process allowing an affected neighbour to issue a formal notice requiring the tree owner to take action, as occurs in Tasmania. It would add a layer of complexity and bureaucracy that the community may find hard to navigate. The Commission recommends a standard sample letter as a separate community resource that neighbours may choose to use to communicate and negotiate with their neighbour. See Chapter 12.

1. The Dispute Settlement Centre of Victoria (DSCV) provides free dispute resolution services across Victoria. See Ch 3 for more information.

   ↑

2. Queensland Government, Step-by-step Guide to Resolving Tree and Fence Disputes (Web Page, 14 July 2017) <https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/step-by-step-guide-to-resolving-tree-and-fence-disputes>.

   ↑

3. Queensland Government, Ways to Approach Your Neighbour (Web Page, 17 January 2018) <https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/ways-to-approach-your-neighbour>.

   ↑

4. Community Justice Centres, Government of New South Wales, Neighbours (Web Page, 5 July 2018) <http://www.cjc.justice.nsw.gov.au/Pages/cjc_whatis_mediation/cjc_common_disputes/com_justice_neighbours.aspx>.

   ↑

5. Ibid.

   ↑

6. Queensland Government, Neighbourhood Mediation (Web Page, 2019) <https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/settling-disputes-out-of-court/neighbourhood-mediation>.

   ↑

7. Community Justice Centres, Government of New South Wales, Neighbours (Web Page, 5 July 2018) <http://www.cjc.justice.nsw.gov.au/Pages/cjc_whatis_mediation/cjc_common_disputes/com_justice_neighbours.aspx>.

   ↑

8. Community Justice Centres, Government of New South Wales, About CJC (Web Page, 13 March 2019) <http://www.cjc.justice.nsw.gov.au/Pages/com_justice_aboutus/com_justice_aboutus.aspx>.

   ↑

9. Consultation 11 (Land and Environment Court of New South Wales).

   ↑

10. Legal Aid Commission of Tasmania (Online Directory, 2019) <https://www.legalaid.tas.gov.au/referral-list>.

    ↑

11. Tasmania Law Reform Institute, Neighbours’ Hedges as Barriers to Sunlight and a View (Issues Paper No 19, 2014) [4.4.9].

    ↑

12. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 5; Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (Report, 2009) 42–3.

    ↑

13. The Environmental Planning and Assessment Act 1979 (NSW) establishes the framework for the planning system in New South Wales. Environmental planning instruments sit under the EPA Act to introduce controls and requirements for specific issues in local government areas. These instruments include both the State Environment Planning Policies and Local Environmental Plans. Development Control Plans (DCPs) provide more detailed planning requirements. For more information see Ch 10.

    ↑

14. The Commission understands that Tree Preservation Orders (TPOs) previously made under clauses 5.9 and 5.9AA of the Standard Instrument (Local Environmental Plans) have largely been replaced by the State Environment Planning Policy (Vegetation in Non-Rural areas) but that existing TPOs will continue to have effect: Office of Environment and Heritage (NSW), Local Government Information and Resources (Web Page, 23 November 2018) <https://www.environment.nsw.gov.au/biodiversity/localgovernment.htm>. See also Ch 10.

    ↑

15. For more information see Ch 10.

    ↑

16. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 54(2).

    ↑

17. Ibid s 42; Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015) [3.221].

    ↑

18. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 43.

    ↑

19. Neighbourhood Disputes About Plants Act 2017 (Tas) s 12(2). This does not apply to trees that are not covered by the Act: s 5.

    ↑

20. Neighbourhood Disputes About Plants Act 2017 (Tas) s 19.

    ↑

21. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 56(1), 60(1).

    ↑

22. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015) Recommendations 4-3, 4-5, 4-10.

    ↑

23. Ibid [4.51].

    ↑

24. Ibid Recommendation 4-3.

    ↑

25. Ibid Recommendation 4-4.

    ↑

26. Ibid Recommendation 4-6.

    ↑

27. See Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 65(a).

    ↑

28. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 10(1)(a).

    ↑

29. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (Report, 2009) 7.

    ↑

30. Robson v Leischke (2008) 72 NSWLR 98 [194]; Land and Environment Court of New South Wales, Annotated Trees Act January 2013

    (1 September 2016) 19–20.

    ↑

31. Consultation 11 (Land and Environment Court of New South Wales); see, eg, Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058 [15].

    ↑

32. Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058 [15].

    ↑

33. Robson v Leischke (2008) 72 NSWLR 98 [195].

    ↑

34. Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058 [15].

    ↑

35. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 65(a).

    ↑

36. See, eg, Collins v McNeil [2013] QCAT 429 [49], n 22.

    ↑

37. Queensland Civil and Administrative Tribunal, Tree Dispute Resolution (Fact Sheet, version 4, March 2017) 1; see, eg, Collins v McNeil [2013] QCAT 429 [49], n 22.

    ↑

38. See eg, Moreno v Parer [2017] QCAT 223 [24].

    ↑

39. Neighbourhood Disputes About Plants Act 2017 (Tas) s 26(1)(a)–(b).

    ↑

40. Ibid ss 19, 20, 22.

    ↑

41. Ibid s 26(2)(b)(i)–(ii).

    ↑

42. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 3(a).

    ↑

43. Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2010, 4372 (CR Dick, Attorney-General and Minister for Industrial Relations).

    ↑

44. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 52(1)–(2).

    ↑

45. Ibid s 52(3).

    ↑

46. Neighbourhood Disputes About Plants Act 2017 (Tas) s 10.

    ↑

47. Queensland, Parliamentary Debates, Legislative Assembly, 2 August 2011, 2306 (Paul Lucas, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State).

    ↑

48. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 57(1)(a)–(b).

    ↑

49. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.295].

    ↑

50. Ibid [3.299].

    ↑

51. Ibid [3.296].

    ↑

52. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 57(2).

    ↑

53. Ibid s 57(3)(a).

    ↑

54. Ibid s 57(3)(b)(i)–(ii).

    ↑

55. Ibid s 57(3)(c).

    ↑

56. Ibid s 57(3)(d)(i).

    ↑

57. Ibid s 57(3)(d)(ii).

    ↑

58. This is to ‘ensure that unjust results do not flow from minor errors or omissions in a completed form of notice’: Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [2.1.6.2]; see also Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 91.

    ↑

59. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 91; Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.280].

    ↑

60. Queensland Government , What to Do if a Neighbour’s Tree is Affecting You (Web Page, 8 January 2019) <https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you>.

    ↑

61. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report 72, December 2015), Recommendation 3.9.

    ↑

62. Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) 30.

    ↑

63. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 57(3)(c).

    ↑

64. The affected neighbour cannot enter the tree owner’s land without permission as this would amount to trespass, discussed in Ch 3.

    ↑

65. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 58(2)(b).

    ↑

66. Form 3 states ‘this does not include the cost of my/our labour’: Department of Justice and Attorney-General (Qld), Form 3: Notice For Removal of Particular Overhanging Branches (Version 3, 29 October 2015) 2.

    ↑

67. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.260].

    ↑

68. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, (Report No 72, December (2015) [3.313].

    ↑

69. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 58(4)–(5).

    ↑

70. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Discussion Paper No 72, June 2015) [3.81].

    ↑

71. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 43, 55.

    ↑

72. Ibid s 57(5).

    ↑

73. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.327].

    ↑

74. Ibid [3.449]. The QLRC explains that ‘in effect, QCAT may make an order about an overhanging branch or branches only if the “land is affected by a tree” under section 46(a)(ii) and the cognate threshold requirements under sections 65 and 66 of the Act are met’.

    ↑

75. Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

76. Neighbourhood Disputes About Plants Act 2017 (Tas) s 21(3); Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

77. Neighbourhood Disputes About Plants Act 2017 (Tas) ss 20(9)–(10).

    ↑

78. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) 57(5).

    ↑

79. Neighbourhood Disputes About Plants Act 2017 (Tas) s 21(4).

    ↑

80. Ibid ss 21(5)–(7).

    ↑

81. Neighbourhood Disputes About Plants Act 2017 (Tas) s 22(2)(a).

    ↑

82. Ibid s 22(2)(b).

    ↑

83. Ibid s 22(2)(c).

    ↑

84. Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

85. Over 90% of survey respondents reported that they did not take legal action: Victorian Law Reform Commission, Neighbourhood Tree Disputes Survey (2018). This is also discussed in Ch 3.

    ↑

86. Submissions 6 (Name withheld), 11 (Name withheld), 13 (Mandy Collins), 19 (Name withheld), 23 (Name withheld), 33 (Annette Neville).

    ↑

87. Submissions 6 (Name withheld) 21 (Pointon Partners Lawyers), 30 (Law Institute of Victoria).

    ↑

88. Submission 22 (Name withheld); Survey Respondent 123.

    ↑

89. For example, one survey respondent explained, ‘we were advised that as the tree had not previously caused damage, the owner could argue [they] did not know it might cause damage and therefore would not be liable’: Survey Respondent 42.

    ↑

90. Consultation 8 (City of Boroondara).

    ↑

91. Submissions 5 (Name withheld) 22 (Name withheld), 33 (Annette Neville), 34 (Allan Day), 38 (L. Barry Wollmer).

    ↑

92. See, eg, Submission 36 (Monique Onezime); Survey Respondent 60.

    ↑

93. Confidential submission; Consultation 1 (Aldo Taranto).

    ↑

94. Submission 17 (Name withheld); Consultation 1 (Aldo Taranto).

    ↑

95. Information provided by DSCV as part of a data request from the Commission, November 2018 and clarification of data provided in May 2019.

    ↑

96. Submissions 5 (Name withheld), 6 (Name withheld), 24 (Name withheld), 31 (Barwon Community Legal Service), 38 (L. Barry Wollmer); Survey Respondent 60.

    ↑

97. Submission 30 (Law Institute of Victoria).

    ↑

98. Consultation 7 (Dispute Settlement Centre of Victoria).

    ↑

99. Information provided by DSCV as part of a data request from the Commission, August 2017.

    ↑

100. Ibid. See Ch 3.

     ↑

101. Information provided by DSCV as part of a data request from the Commission, November 2018.

     ↑

102. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018). Approximately 35–40 arborists from across Victoria were present during this consultation. The majority were private contractors.

     ↑

103. Consultation 6 (Ben Kenyon).

     ↑

104. Submissions 10 (Professor Phillip Hamilton), 38 (L. Barry Wollmer); Survey Respondents 72, 117.

     ↑

105. Submissions 5 (Name withheld), 9 (Dr Karen Smith), 11 (Name withheld), 19 (Name withheld), 21 (Pointon Partners Lawyers), 23 (Name withheld), 38 (L. Barry Wollmer); Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

     ↑

106. Confidential submission.

     ↑

107. Submissions 5 (Name withheld), 6 (Name withheld), 10 (Professor Phillip Hamilton), 19 (Name withheld), 23 (Name withheld), 38 (L. Barry Wollmer); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 10 (Baw Baw Shire Council).

     ↑

108. Submission 38 (L. Barry Wollmer).

     ↑

109. Submission 10 (Professor Phillip Hamilton); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 10 (Baw Baw Shire Council).

     ↑

110. Submissions 7 (Ben Kenyon); Survey Respondents 44, 95, 96.

     ↑

111. Submission 10 (Professor Phillip Hamilton); Consultation 14 (Robert Mineo); Survey Respondents 7, 44.

     ↑

112. Survey Respondent 44.

     ↑

113. Survey Respondent 103.

     ↑

114. Consultation 14 (Robert Mineo).

     ↑

115. Submissions 5 (Name withheld), 6 (Name withheld), 23 (Name withheld).

     ↑

116. Submission 23 (Name withheld); Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

     ↑

117. Dispute Settlement Centre of Victoria, Notice to Fence (Web Page, 12 April 2019) <https://www.disputes.vic.gov.au/information-and-advice/fencing/notice-to-fence>.

     ↑

118. Fences Act 1968 (Vic) s 13(3); Dispute Settlement Centre of Victoria, Notice to Fence (Web Page, 12 April 2019)

     <https://www.disputes.vic.gov.au/information-and-advice/fencing/notice-to-fence>.

     ↑

119. Fences Act 1968 (Vic) ss 17, 19; Department of Justice and Community Safety (Vic), Fencing Law in Victoria (Web Page, 31 January 2019) <https://www.justice.vic.gov.au/justice-system/laws-and-regulation/civil-law/fencing-law-in-victoria>.

     ↑

120. Submissions 19 (Name withheld); Confidential submission.

     ↑

121. Submission 19 (Name withheld).

     ↑

122. Community Law (NZ), Trees—Overview (Web Page, 2019) <http://communitylaw.org.nz/community-law-manual/

     chapter-25-neighbourhood-life/trees/>; see also AFN v ZUI [2012] NZDT 187 [30].

     ↑

123. Confidential submission.

     ↑

124. Submission 21 (Pointon Partners Lawyers).

     ↑

125. Submission 7 (Ben Kenyon); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon). See Standards Australia, Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007); Standards Australia, Protection of Trees on Development Sites (AS 4970-2009) (Sydney, NSW: Standards Australia, 2009);

     ↑

126. Consultation 8 (City of Boroondara).

     ↑

127. Submission 23 (Name withheld).

     ↑

128. Confidential submission.

     ↑

129. Submission 12 (Dr Gregory Moore OAM); Consultation 6 (Ben Kenyon).

     ↑

130. Submission 12 (Dr Gregory Moore OAM).

     ↑

131. Submissions 7 (Ben Kenyon), 9 (Dr Karen Smith), 10 (Professor Phillip Hamilton); Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council).

     ↑

132. See, eg, Submissions 7 (Ben Kenyon), 10 (Professor Phillip Hamilton).

     ↑

133. Submission 20 (Name withheld).

     ↑

134. Consultation 5 (Victorian Civil and Administrative Tribunal); Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

135. See Victorian Civil and Administrative Tribunal, Ending a Case by Dismissal or Strikeout (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/when-vcat-opens-a-case/ending-a-case-by-dismissal-or-strikeout>.

     ↑

136. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

137. Submissions 4 (Name withheld), 9 (Dr Karen Smith), 23 (Name withheld); Consultations 1 (Aldo Taranto), 3 (HVP Plantations), 6 (Ben Kenyon).

     ↑

138. Submission 9 (Dr Karen Smith).

     ↑

139. Consultation 6 (Ben Kenyon).

     ↑

140. Submissions 5 (Name withheld), 6 (Name withheld), 17 (Name withheld), 19 (Name withheld), 22 (Name withheld), 23 (Name withheld), 33 (Annette Neville), 34 (Allan Day); Consultation 1 (Aldo Taranto); Survey Respondent 60.

     ↑

141. Survey Respondent 72.

     ↑

142. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

143. Ibid.

     ↑

144. Ibid.

     ↑

145. Submission 23 (Name withheld); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

     ↑

146. Submissions 5 (Name withheld), 6 (Name withheld), 19 (Name withheld), 23 (Name withheld). In Ch 3 the Commission outlined community feedback concerning an unequal balance of rights.

     ↑

147. Submission 23 (Name withheld). See Fences Act 1968 (Vic) s 13.

     ↑

148. Consultations 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

     ↑

149. Consultation 9 (Nillumbik Shire Council).

     ↑

150. Ibid.

     ↑

151. Consultation 14 (Robert Mineo).

     ↑

152. Victorian Law Reform Commission, Civil Justice Review (Report No 14, 2008) [1.4].

     ↑

153. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) Recommendation 4-4.

     ↑

154. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

155. Justice Bergin states: ‘In the vast majority of cases in Australia mediation is voluntary. Although there may be a mandatory requirement to attend mediation, the outcome is always voluntary. The parties alone determine whether they will settle their dispute and the terms upon which they will settle their dispute, albeit that they are assisted in this regard by the mediator [footnotes omitted].’ Justice P A Bergin, ‘The Objectives, Scope and Focus of Mediation Legislation in Australia’ (Paper presented at Mediate First, 11 May 2012) [7].

     ↑

156. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

157. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

158. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 54(2); Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.261]–[3.262].

     ↑

159. Young v Wheeler (1987) Aust Torts Reports 80–126, 68,972; City of Richmond v Scantelbury [1991] 2 VR 38, 48.

     ↑

160. Lemmon v Webb [1895] AC 1; Young v Wheeler [1987] Aust Torts Reports s 80–126, 68,970.

     ↑

161. Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478, 487.

     ↑

162. See eg, R v Stenberg [2013] NSWSC 1858; Order of Magistrate J Lesser (Magistrates Court of Victoria, H13012408, 14 February 2018); see also Mel Buttigieg, ‘Neighbourhood tree-son! Family’s CCTV catches man next door cutting down their tree’, Yahoo7 News (online, 11 May 2017) <https://au.news.yahoo.com/geelong-man-catches-neighbour-on-cctv-hacking-trees-with-chainsaw-35448374.html>.

     ↑

163. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.4.1]. The situation which the affected neighbour believes compels them to act to preserve life and property must be ‘an urgent situation of imminent peril’ that ‘existed actually, and not merely in the belief of the [affected neighbour]’: Southwark London Borough Council v Williams (1971) 1 Ch 734, 746; Cope v Sharpe (No 2) [1912] 1 KB 496, 508.

     ↑

164. ‘There are two requirements for possession in law: the actual physical control of property (factum possidendi) and the intention to exercise dominium over it (animus possidendi). In sum, the legal conception of “possession” encapsulates the complete and unshakeable physical control with full awareness or knowledge of the property coupled with an obstinate will to exclude all others from it.’: Thomson Reuters Westlaw, The Laws of Australia (at 1 January 2015) 28 Real Property, ‘2 Possession’ [28.16.160].

     ↑

165. The cost of Australian Standard 4970-2009 Protection of Trees on Development Sites is $128.19. The cost of Australian Standard 4373-2007 Pruning of Amenity Trees is $112.64. See generally SAI Global, ‘Store’, Helping you Power Up Your World with Standards (Web Page, 2019) <https://infostore.saiglobal.com/>.

     ↑

166. See the discussion in Ch 2.

     ↑

167. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

168. Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 83(1), 88(1).

     ↑

169. Ibid ss 83(1), 88(1).

     ↑

170. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

171. Submission 23 (Name withheld); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

     ↑

172. Consultations 9 (Nillumbik Shire Council), 14 (Robert Mineo).

     ↑

173. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.353], [3.355].

     ↑

174. As discussed in Ch 2.

     ↑

175. As noted earlier, DSCV provided an example of a dispute over leaf litter being successfully mediated.

     ↑

176. For personal injury or property damage as discussed in Ch 3. See, eg, Marshall v Berndt [2011] VCC 384 [234]; Owners Corporation SP020030 v Keyt [2016] VCC 1656 [13]; Robson v Leischke (2008) 72 NSWLR 98 [54].

     ↑

177. Queensland, Parliamentary Debates, Legislative Assembly, 2 August 2011, 2306 (Paul Lucas, Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State).

     ↑

178. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

179. The NSWLEC handles approximately 10–13 tree dispute cases per month and QCAT handles approximately 200 tree dispute cases per year (an average of approximately 16 cases a month): Consultations 11 (Land and Environment Court of New South Wales), 15 (Queensland Civil and Administrative Tribunal).

     ↑

180. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.313]; Neighbourhood Disputes About Plants Act 2017 (Tas) s 21(3); Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

     ↑