Neighbourhood Tree Disputes: Report (html)

13. Other matters and conclusions

Introduction

13.1 This chapter looks at a range of final issues. It examines online dispute resolution (ODR) and how it could be used to aid the resolution of tree disputes. It also considers community suggestions for reform that were different to those raised for discussion in the consultation paper.

13.2 Some issues that were raised in responses but are outside the Commission’s terms of reference for this inquiry are also identified. These issues are likely to require consideration if the new Act is implemented. Preliminary views on these issues are provided.

13.3 The chapter concludes with a recommendation for review of the new Act after it has been operational for five years to ensure that it is meeting its objectives.

Online dispute resolution

13.4 ODR is a general term, describing a range of technology-assisted forms of dispute resolution. The styles of ODR are outlined in the Access to Justice Review:

Online dispute resolution techniques range from methods where parties have full control of the procedure, such as in an online negotiation, to methods where a neutral third party is in control of both the process and the outcome, such as online arbitration. In online dispute resolution, the information management role is often carried out not by physical persons, but by computers and software.^[1]

13.5 There is no one format of ODR. It makes use of a range of tools in combination with traditional legal dispute resolution tools.^[2] The Victorian Civil and Administrative Tribunal’s (VCAT) Residential Tenancies Hub enables tenants and landlords with a renting dispute to use an online system to apply to have their matter heard in VCAT. Registered users are able to pay their application fee online, receive their hearing date, and even create notices relating to requests for housing repairs or ending the tenancy.^[3] In other online platforms, for example in Canada, agreements reached via the use of ODR tools can be converted into formal orders or transferred to a court/tribunal hearing when they cannot be resolved.^[4]

13.6 ODR is generally used for smaller, simpler disputes, which can be ‘triaged’ with threshold questions, and potentially resolved using good quality information and tools. Some of the benefits of ODR methods may include:

• Accessibility. People in non-metro areas, or without access to a physical court or tribunal may find it easier to interact with online tools and processes. ODR tools may also be available around the clock, meaning that parties need not be in the same place at the same time to participate in resolving their dispute.

• Physical separation of parties. In some cases, being in a room together can exacerbate the problem. In ODR, there is no need to meet or speak with the other party.

• Lower cost. The cost to the user (parties) is generally much lower than in traditional adjudication processes. The successful resolution of matters with ODR prior to hearing may also represent significant savings in costs.

• Ease of use. Assuming a certain level of technological literacy, ODR systems are generally simple and user-friendly.

• Secure and documented communications. Conducting negotiations online provides better opportunities to accurately record and document each stage of the process.^[5]

Other jurisdictions and pilot programs

13.7 An ODR pilot program was conducted in the NSW Civil and Administrative Tribunal (NCAT) in 2014. The pilot focused on selected, single-issue consumer disputes under the value of $5000.^[6] Analysis of the uptake of matters included in the pilot showed an increase in finalisations before hearing, an increase in resolutions at hearing, a reduction of adjournments at hearing, and an overall projected saving of 12 hearing days per month.^[7]

13.8 ODR is currently in use in Victoria for resolving some Worksafe disputes.^[8] For example, the Accident Compensation Conciliation Service^[9] (ACCS) acts as a first step online conciliator for injured workers and their employers to resolve disputes.^[10] The ACCS uses ODR to ‘encourage workers and employers participation where those participants would otherwise not be able to be involved in the conference’.^[11] ODR is generally seen to supplement rather than replace face-to-face conferencing.^[12]

13.9 In 2017, following the Access to Justice Review, the Victorian Government pledged nearly $800,000 to establish an online dispute resolution pilot led by the Department of Justice and Regulation Victoria and a $1.98 million investment to help the courts improve their websites.^[13] The aim of the pilot program was to gauge the suitability of the broader introduction of ODR in Victoria.^[14] The review also recommended the establishment of an online dispute resolution advisory panel.

13.10 VCAT has recently concluded its ODR pilot for small civil claims.^[15] The pilot ran for four weeks from September 2018 and tested whether ODR was suitable for people involved in disputes about goods and services under $10,000.^[16] VCAT heard 65 cases using ODR technology, with 71 parties participating in online hearings. A total of 21 cases

settled beforehand, demonstrating the ‘indirect result of online dispute resolution case management’.^[17] The ODR pilot shows ‘exciting potential benefits’ for the Victorian community.^[18]

13.11 VCAT explained that ODR requires VCAT members or the Registry to administer the process behind the online platform to ensure parties progress through the system. VCAT notes that establishing ODR at the Tribunal would require significant resourcing.^[19]

13.12 One of the most successful examples of ODR is the Civil Resolution Tribunal (CRT) in British Columbia, Canada, which deals with matters including debts, personal property disputes, strata title disputes, and some personal injury disputes.^[20] The CRT uses a cumulative model of ODR, offering different levels of support if disputes cannot be resolved.^[21] This program has been successful because of the user-friendly nature of CRT’s online services and the professionalism of CRT staff to assist with dispute resolution.

Community responses—online dispute resolution

13.13 The consultation paper asked the community whether an online dispute resolution platform dedicated to neighbourhood tree disputes should be introduced in Victoria. If so, community members were asked to comment on what tools should be made available on this platform and who should administer it.

13.14 A large number of responses were received on this issue, with most people supportive of introducing an ODR platform in Victoria to help resolve neighbourhood tree disputes.^[22] Some community members questioned whether ODR platforms would have the capacity to adjudicate disputes in the same way as faceto-face dispute resolution forums.^[23]

13.15 Overall, community members suggested that the platform should be administered through councils,^[24] VCAT^[25] or DSCV.^[26] One community member suggested that ‘tools should include a facility to present photographs of troublesome trees’.^[27]

13.16 DSCV has also been considering how the use of ODR could increase accessibility and efficiency for some types of dispute.^[28]

The Commission’s conclusions—online dispute resolution

13.17 The Commission is generally supportive of the use of ODR to help resolve neighbourhood tree disputes. ODR is likely to provide parties with greater flexibility about how they participate in negotiations, provide targeted advice about resolution options and establish a seamless way of communicating formally with the Tribunal. ODR may also improve regional access to VCAT processes. ODR may also assist VCAT to deliver affordable and efficient justice and to make the most efficient use of its resources. To this end, Justice Michelle Quigley, VCAT President, is ‘determined to champion the online revolution that

has started at the tribunal’.^[29] ODR tools could make use of the new website and public information sources recommended in Chapter 12.

13.18 While ODR provides some clear benefits for tree disputes, it may not be appropriate for all cases or for all steps in the VCAT adjudication process. The remote nature of the ODR hearing process and the distance this creates between the parties will be helpful in emotive disputes. However, some disputes will be better suited to face-to-face resolution. Face-to-face negotiation may encourage parties to negotiate a solution that they can all ‘live with’ because of the proximity of neighbours and their ongoing relationship. This is important.

13.19 Chapter 7 identified the important role that on-site final hearings play in the resolution of tree disputes in New South Wales and in the success of the NSW scheme. The Commission has heard that physically viewing the tree and the problem in context greatly assists the court to deliver practical and robust solutions to the problem. It was recommended that VCAT conduct on-site final hearings for tree disputes or on-site inspections modelled on the Queensland approach. End-to-end ODR may be better suited to less hostile and less complex tree disputes. In other cases it will be important that on-site hearings or inspections are able to feed into any future ODR framework for tree disputes.

Other options for law reform

13.20 The community was invited to propose alternative options for reform to those proposed by the Commission in the consultation paper. Ideas were received about:

• addressing problems with local laws and increasing councils’ role in the management of vegetation on private land^[30]

• the creation of binding obligations about significant trees that run with the land^[31]

• valuing trees to recognise them as community assets^[32] and providing rate deductions to property owners to compensate them for tree-related maintenance expenses.^[33]

13.21 The Commission acknowledges the contribution of those who submitted alternative options for reform. Each of them gave thoughtful consideration to how neighbourhood tree disputes may be resolved in simpler, clearer and fairer ways.

Improving local laws and a greater role for councils

13.22 Several reform ideas were proposed about improving the operation of local tree protection laws by:

• increasing penalties for damage or harm caused to trees in breach of local tree protection laws^[34]

• enabling applicants to appeal decisions made under local laws to an external body (that is, independent of the responsible authority administering the local law).^[35]

13.23 Chapter 10 makes recommendations about how the new Act should interact with local law permit requirements. The Commission concludes that the new Act should limit the operation of local laws subject to safeguards designed to mirror processes contained in local laws. It is outside the scope of the current inquiry to review and make recommendations about the broader utility of local laws.

13.24 The Commission acknowledges the concerns raised by community members about not having any external right of review under local laws. An internal review process may be available to applicants who are aggrieved by the initial decision made by council. For example, the City of Boroondara advised ‘it is not uncommon for appeals to result in different outcomes to the original decision, especially in cases where the applicant has provided more comprehensive evidence’.^[36]

13.25 The Commission observes that penalties imposed under local laws have remained the same since 1991 and as a consequence are likely to be inadequate as a deterrent.^[37] The Local Government Act 1989 (Vic) has recently undergone an extensive review process, including consideration of the value of penalty units under local laws, with Local Government Victoria finding ‘there are grounds for considering indexation of penalty units if breaches of local laws are to be rigorously enforced’.^[38] This was reflected in the Local Government Bill 2018, now lapsed, which put forward consequential amendments to the Sentencing Act 1991 (Vic).^[39] These amendments would have dispensed with the fixed penalty amount of $100 in favour of annual determinations to be made by the Treasurer under the Monetary Units Act 2004 (Vic). However, the Bill has now lapsed and the Local Government Act 1989 (Vic) continues to form the basis of the legal framework for Victorian councils.

13.26 The Commission has been informed that the application of local tree protection laws adds complexity to the resolution of tree disputes and it is not always clear how these laws apply.^[40] Chapter 12 recommends that councils provide clear and accessible information about local laws applying to vegetation on private land in council areas. This should include information about how these laws operate.

13.27 Another reform proposal was the introduction of council-approved tree contractors to help residents to understand council vegetation policies and objectives and to help them to manage vegetation on private land.^[41] The Commission is cautious about recommending that councils take on additional responsibilities when the new Act will not apply to public land. The Commission is aware, however, that Whitehorse City Council, as an example, has a Tree Education Program to raise awareness of the benefits of trees in an urban environment and to educate the community about trees.^[42] The Commission is supportive of such programs but is also mindful of resourcing limitations. Recommendations in Chapter 12 encourage local councils to develop tree planting guidelines to disseminate to residents to help to avoid tree disputes arising.

Greater recognition of the benefits of trees

13.28 In Chapter 2 the Commission identified that the community is becoming increasingly aware of the importance of vegetation and the need to retain it. Another source outlining the benefits of trees to the community can be found in the thesis of Andrew Simpson.^[43]

13.29 Another reform idea was to legally recognise the significance of trees in a way that runs with the land to bind future owners. It was also emphasised that there needs to be a more holistic approach to resolving tree disputes where the law and aboriculture work together to protect significant trees that may live through multiple owners.^[44]

13.30 The current law provides some scope for trees to be regulated into the future through section 173 Agreements, Trust for Nature covenants or land management agreements under section 69 of the Conservation, Forests and Land Act 1984 (Vic).^[45] These are discussed in Chapter 10. Recommendations to bind future purchasers of land to the legal outcomes of tree dispute hearings subject to certain safeguards are discussed in Chapter 11. The aim is to provide certainty about the management of trees that cause damage or are likely to cause damage or harm.

13.31 Some community members suggested that a new Act should provide more protection for trees by recognising trees as community assets.^[46] One survey respondent stated ‘trees are an essential part of the urban environment and their value is underestimated in most cases’.^[47] Another community member informed the Commission that there should be an industry-accepted standard to place a monetary value on trees.^[48] Arborist Ben Kenyon noted that:

because trees are not viewed as assets, many people believe they can deal with them however they like and view their protection as cumbersome or unnecessary.^[49]

13.32 In addition to the environmental and amenity benefits of trees, the Commission has learnt that there are numerous tree valuation methodologies based on amenity that are used worldwide.^[50] For example, Dr Gregory Moore OAM advised that in Germany the Koch method of calculating the monetary value of ornamental trees is a common and universally recognised method.^[51] Dr Moore commented that this simplifies the process, reduces the elements in dispute and lowers costs.^[52] Applying a dollar amount to trees can discourage interference with trees of high retention value while enabling tree works to be undertaken on trees of low retention value.^[53]

13.33 However, there is no consensus on a standard method to assess the monetary value of trees within Australia.^[54] Therefore, the Commission does not recommend placing a monetary amount on trees as part of the decision-making process under the new Act. This approach is reflected in the explanatory notes preceding the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld):

No financial value or carbon trading value may be placed on a tree. The process for valuing trees in the urban environment is unsettled and subject to varied and controversial valuing methods. This clause ensures that the object of the Bill, to provide a statutory remedy for a nuisance caused by trees growing in the neighbourhood, is not affected or frustrated by unsettled methods of calculating the monetary value of trees for natural asset purposes or carbon trading.^[55]

13.34 Dr Gregory Moore OAM also suggested a scheme to offer rate remissions or tax deductions for tree-related expenses to ensure that owners were more invested in the management and maintenance of trees and in recognition of the benefit that trees provide to the community. Dr Moore explained:

There is an issue that trees provide community benefits to all, but costs are borne by the owner of the tree. If the community benefits are of such significance then there needs to be some community contribution to costs. While subsidies or grants are often suggested, I tend to prefer some sort of concession over the longer term such as a remission in rates or tax deductibility for tree related expenses. This would allow proper maintenance of the tree over the longer term of its lifespan and give the owner a greater stake in its proper management. In short the tree becomes recognised as the asset that it is.^[56]

13.35 The Commission acknowledges Dr Moore’s suggestion but notes that it is beyond the scope of the review to report more broadly about the protection of vegetation in our communities. These broader considerations are included in planning schemes in the Victorian community and environmental protection legislation at the state and Commonwealth level.^[57]

13.36 Chapter 8 recommends that VCAT consider the broader benefits of the tree, including its historical, cultural, social or scientific value, as well as the value of the tree as a benefit to the community when determining a private tree dispute. Other recommendations aim to ensure that VCAT decisions are underpinned by evidence-based decision-making that draws on the experience of arborists.

13.37 The Commission observes that councils are increasingly leading the way with modern and evolving urban forest policies. For example, the City of Greater Bendigo has a significant tree register and an Urban Tree Management Policy that states ‘the protection of existing trees and enhancement of Bendigo’s urban forest is pivotal to … realising its vision: ‘Greater Bendigo – creating the world’s most liveable community’.^[58] The City of Stonnington has developed an Urban Forest Strategy 2017–2022 to ‘help enable the protection and enhancement of the urban forest in the face of many challenges that affect urban trees’.^[59]

13.38 The City of Ballarat has adopted an Exceptional Tree Register that lists trees on public and private land within the municipality because these trees are ‘an important and integral community and heritage asset to Ballarat’.^[60] Moreover, South Gippsland Shire Council has a Tree Management Plan in recognition of the fact that ‘trees are a significant asset that are of high value to the community and contribute greatly to the amenity of built environments within the Shire’.^[61]

13.39 HVP Plantations suggested that where rural land is subdivided so that a remaining rural land holder has many new neighbours and potentially new obligations to maintain trees on boundary lines and associated costs ‘it would be just for a rural landowner to be able to claim compensation from a developer for the imposition of these costs as a lump sum at the time of subdivision’.^[62] This is a matter that is outside the scope of this inquiry and could be considered when the Act is reviewed as recommended later in this Chapter.

Issues beyond the scope of this inquiry

13.40 In performing its functions in relation to this inquiry, the Commission has not considered other matters that have been identified by members of the community including:

• trees located on public land^[63] (for example, trees on a nature strip or reserve);

• trees blocking access to sunlight and views (including high hedges)

• the illegal removal of vegetation.

13.41 These issues are beyond the scope of the Terms of Reference that govern this inquiry. Nonetheless, preliminary views on these issues are provided because they will be important considerations if the new Act is implemented.

Trees on public land

13.42 Disputes involving trees on public land are beyond the scope of this inquiry.

13.43 Disputes about trees on public land trigger a separate resolution process.^[64] For example, councils have a duty of care to all members of the public on land vested in or owned by them. Councils can therefore be found liable under the common law if a tree causes damage to property or injury to persons on land owned or managed by council.^[65]

13.44 The NSW Act does not apply to any land that is vested in, or managed by, a council.^[66] The Department of Justice and Attorney General review of the NSW Act did not recommend an expansion on the Act to cover disputes about trees on council land. This conclusion was reached because ‘of the significant resource and risk-management implications of such a change’ and ‘the fact that Councils (unlike private landholders) employ professional tree management staff and already have procedures in place to respond to concerns about trees’.^[67]

13.45 Similar to New South Wales, neither the Queensland nor Tasmanian Acts captures trees situated on council-managed land. In the statutory review of the Queensland Act, the Queensland Law Reform Commission (QLRC) recommended that the Act not be extended to encompass trees on land controlled by the state and local governments. It expressed concern about the significant impact on local government if it became responsible for all trees adjoining and overhanging the boundaries of all the land under its control.^[68] Similarly, the Tasmanian scheme excludes land that is owned or managed by a council and is used as a public park or garden, or a reserve or public open space or for the purposes of conservation.^[69]

13.46 The Municipal Association of Victoria considered it ‘important that trees on public land not be included’ in this inquiry because it could impede the responsibilities of councils in relation their responsibilities under other Acts.^[70]

13.47 Although there are many trees on public land that may potentially cause damage or harm, the Commission is of the view that it would place an undue administrative and cost burden on local councils to incorporate public land into the new Act. The Commission is mindful of the QLRC’s comments that there is confusion in the Queensland community about whether the Queensland Act applies to public land or not and the QLRC’s recommendation that this should be remedied by including a provision in the Queensland Act that states that it does not apply to public land.^[71] This approach may also be helpful for the new Act.

Access to sunlight and views

13.48 Some community members suggested that a new Act should consider trees that block access to sunlight and views.^[72] One submission and two survey respondents specifically addressed the issue of trees blocking sunlight to solar panels.^[73] One submission raised the issue of cypress hedges blocking sunlight.^[74] Another survey respondent pointed out that there was no legislation to govern disputes about high hedges and recommended legislative reform in this area.^[75]

13.49 Trees blocking access to sunlight and views are covered in different ways under the interstate statutory schemes discussed throughout this report. Jurisdictions in the United Kingdom^[76] and New Zealand^[77] also have legislation in place to resolve disputes about high hedges.

13.50 The NSW Act allows an affected neighbour to bring legal action in relation to high hedges that severely obstruct sunlight or views.^[78] The Act is concerned with the obstruction of sunlight to a window of a dwelling and the obstruction of views from a dwelling. The NSW scheme was expanded to allow the NSWLEC to make orders to interfere with trees on the sole ground of access to light and view following statutory review of the Act in 2009 by the NSW Department of Justice and Attorney General.^[79] It concluded:

the most frequent and most serious concerns raised in submissions to the review related to high, dense hedges on immediately adjoining private properties, where the hedge is wall-like, and severely obstructs solar access to, or views from, a dwelling.

It appears feasible to create a strictly limited avenue in the Land and Environment Court for seeking orders in relation to such hedges. This would be consistent with the accepted practice of regulating the height of fences and other built barriers between neighbours.^[80]

13.51 The 2009 review by the NSW Act noted that it was not appropriate for views or solar access to override privacy and other concerns of the hedge-owner, or the broader community benefits of maintaining the hedge.^[81] It follows that the NSWLEC is unable to make an order with respect to a hedge unless it is satisfied that the obstruction is severe and outweighs ‘any undesirability of disturbing or interfering with the trees’.^[82]

13.52 The high hedges provisions were reviewed in 2013.^[83] The review concluded that Part 2A of the NSW scheme was a ‘limited but effective’ jurisdiction in the NSWLEC to hear hedge disputes.^[84] The 2013 review concluded that there was insufficient evidence to support a significant policy shift to broaden the existing provisions to cover solar access.^[85] Thirty-two per cent of tree disputes finalised in the NSWLEC in 2017 were applications concerning a hedge severely obstructing sunlight or views.^[86]

13.53 The Queensland scheme differs from the NSW scheme as it includes severe obstruction of sunlight to a roof of a dwelling. It enables QCAT to make orders in relation to a tree that causes substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[87] This applies to interference that is an obstruction of sunlight or a view only if:

• the tree rises at least 2.5m above the ground, and

• the obstruction is—

i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land, or

ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.^[88]

13.54 Unreasonable interference may include blocking of sunlight to solar panelling, blocking of light which causes mould growth in the home, or interruption to satellite reception.^[89]

13.55 The 2015 statutory review of the Queensland Act recommended that the Act be amended to limit its scope to sunlight that existed when the neighbour took possession of the land, as is now provided for in section 66(3)(ii) of the Act. It also recommended placing a time limit of six years on an applicant to remedy the obstruction of sunlight or views.^[90] These recommendations were in response to concerns raised by QCAT, namely:

a neighbour should not be able to install solar panels and be entitled to apply to QCAT to have trees removed that shaded the roof at the time the neighbour installed the panels.^[91]

13.56 QCAT informed the Commission that the obstruction of sunlight and view is one of the most common reasons for tree disputes brought in QCAT.^[92]

13.57 Similarly, in Tasmania, substantial, ongoing and unreasonable interference with the use and enjoyment of land captures sunlight being severely obstructed from reaching:

• a window (including a window in a door) of a building on the affected land, or

• a solar photovoltaic panel, a solar collector for a solar hot water system, or a skylight, situated on a roof of a building on the affected land.^[93]

13.58 This legislative reform arose from the Tasmania Law Reform Institute’s examination of the dispute resolution mechanisms available to neighbours who have issues with high hedges as well as hazardous trees.^[94] The Institute agreed with the majority of submissions that any legislative scheme implemented to deal with problem trees or hedges should include obstruction of both sunlight and views.^[95] The submissions to the Institute confirmed that both sunlight and views are important amenity considerations for many people in the community and that their obstruction can significantly affect a person’s enjoyment of their property.^[96]

13.59 Disputes about access to sunlight and vegetation are not uncommon within Victoria^[97] and may increase as more suburban dwellings acquire roof-top solar panels.^[98] These disputes can be particularly contentious and emotive because they can affect the property value of homes.^[99] They can involve the illegal removal of vegetation without an owners’ permission (sometimes through poison) and involve trespass.^[100] While these issues are beyond the scope of this inquiry, the Commission believes that further consultation on these issues and detailed consideration by Government may be needed at the five-year review recommended later in this chapter (as occurred in the NSW Act).

13.60 The Commission also notes that the Victoria Planning Provisions and all planning schemes have been recently amended to require new developments to consider their impact on any existing solar energy facility mounted on the roof of an adjoining dwelling.^[101] Moreover, a home owners guide encourages landowners to carefully consider overshadowing risks at the surrounding site, including the existence of tall trees planted on adjoining lots of land and their growth potential, prior to installing roof solar systems.^[102] It advises ‘where shading from trees is likely, examine alternative locations for solar system placement’.^[103]

Illegal removal of vegetation

13.61 The City of Boroondara expressed concern about a new Act providing scope for trees to be removed to facilitate development on neighbouring land.^[104] Other community members also raised concern about the illegal removal of vegetation by developers or neighbours on adjoining land,^[105] with community members suggesting that the current penalties for such actions were not acting as a deterrent.^[106]

13.62 The new Act is not intended to facilitate tree removal for the development of land. As discussed in Chapter 5, only trees that have caused, are causing or are likely to cause damage or harm to neighbouring property, land or people will fall within the scope of a new Act. In addition, the Commission has recommended that the decision maker consider whether a tree should be replanted in cases where tree removal is considered necessary. The Commission is of the view that VCAT’s existing experience in planning matters will assist it to identify and appropriately manage any applications that seek to use the new Act to circumvent existing legal obligations to retain vegetation.

13.63 The native vegetation removal regulations^[107] have recently been reviewed to ensure that native vegetation is being protected by better accounting for the environmental value of large scattered trees, endangered vegetation types and sensitive wetlands and coastal areas in decision making as well as improving monitoring and reporting on the implementation of native vegetation removal and offsets.^[108] There are a range of enforcement responses available to authorities when native vegetation is removed without a permit, including ‘requiring environmental rectification and remediation for unauthorised removal of native vegetation’ or applying for an enforcement order through VCAT to achieve compliance.^[109]

Review of the new Act

13.64 The NSW Act has an inbuilt statutory review mechanism in section 23, which required the Attorney General to review the Act two years from the date of its assent on 6 December 2006. The comprehensive statutory review was conducted by the NSW Department of Justice and Attorney General in November 2009.^[110]

13.65 Similarly, the Queensland Act required a statutory review of the Act to be undertaken within three years of its commencement to determine whether the objects of the Act remained valid and whether the Act was meeting its objectives, and to investigate other issues.^[111] The statutory review of the Act was published by the QLRC in December 2015.^[112]

13.66 Under section 39(1) of the Tasmanian Act ‘the Minister is to cause an independent review of the operation of this Act to be carried out as soon as practicable after the fourth anniversary of the commencement of this section’.^[113]

13.67 All statutory reviews stipulate that a copy of the written review is to be tabled in Parliament.^[114]

13.68 The Commission considers that the reviews conducted pursuant to the NSW and Queensland Acts have been valuable and in some cases have resulted in legislative amendments to better reflect community views and the evolving nature of tree disputes between neighbours.^[115] The Commission is of the view that the new Act should also include a statutory review mechanism. This would ensure that the policy objectives of the new Act remain valid and that amendments can be made to improve the Act in a timely manner. It would be appropriate for this review to be conducted within five years of the date of commencement of the new Act.

13.69 A statutory review would also provide an opportunity to consider the matters discussed earlier in this report including:

• the effectiveness of the zoning provisions in the Act. At review Government should consult with farming and agricultural users of land to obtain specific input from rural communities about the application of the Act (see Chapter 5)

• whether to expand the definition of adjoining land to include irregularly shaped parcels of land. Such an expansion could apply to neighbours who do not share a common boundary but are separated by no more than two metres of public land, or separated by an easement on public land. This distance allows some flexibility while being narrow enough to capture only immediate neighbours. At review Government should consult with Land Use Victoria (see Chapter 5)

• whether there is a need to include a formal branch removal notice process in the Act and how useful it would be to do so. Consultation should occur with the Queensland Government, dispute resolution centres, community legal centres and the Tasmanian Government (see Chapter 6)

• whether to expand the application of the Act to include trees blocking access to sunlight and views.

Recommendations

61 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.

62 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).

1. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 272; see also Pablo Cortes, ‘Online Dispute Resolution Services: A Selected Number of Case Studies’ (2014) 6 Computer and Telecommunications Law Review 172.

   ↑

2. See, eg, Nussen Ainsworth and Meghann Clark, ‘Technology in Mediation’ (1 April 2016), 90(4) Law Institute Journal 38–40
   <https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/April-2016/Technology-in-mediation>.

   ↑

3. Victorian Civil and Administrative Tribunal, Online Tool to Help Tenants and Landlords at VCAT (Web Page, 17 November 2015)

   <https://www.vcat.vic.gov.au/news/online-tool-to-help-tenants-and-landlords-at-vcat>.

   ↑

4. See, eg, Civil Resolution Tribunal, How the Dispute Resolution Process Ends (Web Page, 2019) <https://civilresolutionbc.ca/

   how-the-crt-works/how-the-process-ends/#what-if-i-dont-agree-with-the-decision>.

   ↑

5. See generally Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27(4) Australasian Dispute Resolution Journal 227–35; see also National Alternative Dispute Resolution Advisory Council, On-line ADR Background Paper (January 2001)

   <https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx>.

   ↑

6. NSW Civil and Administrative Tribunal, Annual Report 2014–2015 (Report, 2015) 79.

   ↑

7. Louise Clegg, ‘Achieving Efficiency—NCAT Online Dispute Resolution Pilot’ (Speech, COAT National Conference, 4–5 June 2015)

   <https://coat.asn.au/events/2015-coat-national-conference/>.

   ↑

8. Accident Compensation Conciliation Service, Online Dispute Resolution (Web Page, 2013) <https://www.conciliation.vic.gov.au/conciliation-process/conferences/online-dispute-resolution>.

   ↑

9. The ACCS is an independent statutory body corporate established under section 52A of the Accident Compensation Act 1985 and continues in force under section 519 of the Workplace Injury Rehabilitation and Compensation Act 2013 to provide conciliation services for worker’s compensation disputes in Victoria.

   ↑

10. Accident Compensation Conciliation Service, Guide to Conciliation—Video (Web Page, 2013) <https://www.conciliation.vic.gov.au/about-us/preparing-for-conciliation>.

    ↑

11. Accident Compensation Conciliation Service, Online Dispute Resolution (Web Page, 2013) <https://www.conciliation.vic.gov.au/conciliation-process/conferences/online-dispute-resolution>.

    ↑

12. Ibid.

    ↑

13. Now the Department of Justice and Community Safety. Victorian Civil and Administrative Tribunal, Access to Justice Funding to Enhance Services (Web Page, 24 May 2017) <https://www.vcat.vic.gov.au/news/access-to-justice-funding-to-enhance-services>.

    ↑

14. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 277.

    ↑

15. The pilot was funded by the then Department of Justice and Regulation and delivered on a recommendation from the Access to Justice Review.

    ↑

16. Information provided by VCAT to the Commission, 26 March 2019.

    ↑

17. Ibid.

    ↑

18. Ibid.

    ↑

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

    ↑

20. Civil Resolution Tribunal, What Kinds of Disputes Can the CRT Help With? (Web Page, 2019) <https://civilresolutionbc.ca/resources/crt-jurisdiction/#what-types-of-disputes-cant-be-taken-to-the-crt>; see also Civil Resolution Tribunal, Participant Satisfaction Survey—January 2019 <https://civilresolutionbc.ca/participant-satisfaction-survey-january-2019/>.

    ↑

21. The CRT process can be divided into four main stages: 1) Solution Explorer: self-help tools to help parties understand their rights and obligations and to explore solutions before hearing; 2) Negotiations: tools and guidance for party-to-party negotiations; 3) Case management: a CRT case manager facilitates negotiation between the parties. Agreements can then be referred to a Tribunal member to be converted into a binding order of the CRT; 4) Adjudication: if a matter has not resolved it can be transferred to hearing (usually on the papers) by a tribunal member with relevant specialist expertise: See Civil Resolution Tribunal, How the CRT Works (Web Page, 2019) <https://civilresolutionbc.ca/how-the-crt-works/>.

    ↑

22. Submissions 4 (Name withheld), 5 (Name withheld), 9 (Dr Karen Smith), 11 (Name withheld), 19 (Name withheld), 21 (Pointon Partners Lawyers), 23 (Name withheld), 27 (Name withheld).

    ↑

23. Submissions 6 (Name withheld), 20 (Name withheld).

    ↑

24. Submission 4 (Name withheld).

    ↑

25. Submission 23 (Name withheld).

    ↑

26. Submissions 11 (Name withheld), 23 (Name withheld).

    ↑

27. Submission 19 (Name withheld).

    ↑

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

    ↑

29. Victorian Civil and Administrative Tribunal, Annual Report 2017–2018 (Report, 2018).

    ↑

30. Submissions 5 (Name withheld), 6 (Name withheld), 17 (Name withheld), 37 (Ian Hundley), 38 (L. Barry Wollmer); Survey Respondents 3, 19, 57, 83, 88, 108, 110, 118.

    ↑

31. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

    ↑

32. Submission 12 (Dr Gregory Moore OAM); Consultation 6 (Ben Kenyon); Survey Respondents 2, 13, 55, 89.

    ↑

33. Submission 12 (Dr Gregory Moore OAM).

    ↑

34. Submission 37 (Ian Hundley).

    ↑

35. Submission 17 (Name withheld); Survey Respondents 83, 108.

    ↑

36. Consultation 8 (City of Boroondara).

    ↑

37. Submission 37 (Ian Hundley). They are governed by both the Sentencing Act 1991 (Vic) and the Local Government Act 1989 (Vic). Penalty units for local laws have been capped at $100 per unit since 1991 (Sentencing Act 1991 (Vic) s 110(2)). The maximum penalty under a local law is 20 penalty units ($2000): Local Government Act 1989 (Vic) s 115. The Commission also understand that councils can elect to prosecute an offence under local law in the Magistrates’ Court; this is an infringement offence within the meaning of the Infringements Act 2006 (Vic): Local Government Act 1989 (Vic) s 117(1A).

    ↑

38. See, eg, Department of Environment, Land, Water and Planning (Vic), Act for The Future: Directions for a New Local Government Act (Paper, 2016) <https://www.localgovernment.vic.gov.au/council-governance/local-government-act-review>. Local Government Victoria, part of the Department of Environment, Land, Water and Planning (Vic), has carried out a comprehensive review of the Local Government Act 1989 (Vic), with contributions from councils and the community. The review resulted in the Local Government Bill 2018 being introduced into Parliament on 23 May 2018. However, the Bill has now lapsed and the Local Government Act 1989 (Vic) continues to form the basis of the legal framework for Victorian councils.

    ↑

39. Explanatory Memorandum, Local Government Bill 2018 (Vic) cl 74 sch 1 item 92.

    ↑

40. Survey Respondents 3, 19, 57, 83, 88, 110.

    ↑

41. Confidential submission.

    ↑

42. City of Whitehorse, Whitehorse Tree Education Program (Web Page) <http://www.whitehorse.vic.gov.au/Tree-Education-Program.html>.

    ↑

43. Andrew Simpson, ‘Alternate Dispute Resolution for Neighbour Tree Conflicts and the Role of Local Government’ (Masters Thesis, University of Technology Sydney, 2018).

    ↑

44. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

    ↑

45. See Planning and Environment Act 1987 (Vic) s 173; Victorian Conservation Trust Act 1972 (Vic) s 3A; Conservation, Forests and Lands Act 1969 (Vic). These Acts are discussed in Ch 10.

    ↑

46. Submission 12 (Dr Gregory Moore OAM); Consultation 6 (Ben Kenyon); Survey Respondents 2, 13, 55, 89.

    ↑

47. Survey Respondent 2.

    ↑

48. Survey Respondent 55.

    ↑

49. Consultation 6 (Ben Kenyon).

    ↑

50. See, eg, Gary Watson, ‘Comparing Formula Methods of Tree Appraisal’ (2002) 28(1) Journal of Aboriculture 14.

    ↑

51. Submission 12 (Dr Gregory Moore OAM). The Koch method is often employed in cases of ‘destruction, damage or expropriation’ of trees and is ‘based on interest paid on costs invested in woody plants growing up to their maturity stage minus deductions for age, defects and damage incurred prior to the determining event: P. Bulí, ‘Testing of Koch Method Applied For Evaluation of Ornamental Trees in The Czech Republic’ (2009) 36(4) Horticultural Science (Prague) 154–61, 154.

    ↑

52. Submission 12 (Dr Gregory Moore OAM).

    ↑

53. Ibid.

    ↑

54. Submission 12 (Dr Gregory Moore OAM). Different methods will produce varying results, and different practitioners applying the same method will also produce varying results: Gary Watson, ‘Comparing Formula Methods of Tree Appraisal’ (2002) 28(1) Journal of Aboriculture 14.

    ↑

55. Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) cl 73.

    ↑

56. Submission 12 (Dr Gregory Moore OAM).

    ↑

57. See, eg, Planning and Environment Act 1987 (Vic); Victorian Conservation Trust Act 1972 (Vic) s 3B; Conservation, Forests and Lands Act 1987 (Vic); Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Commission notes that if the preservation of land subject to a conservation covenant is not economically feasible and preservation is thereby endangered, the Minister may remit the whole or any part of the tax payable by the owner under the Land Tax Act 1958 (Vic) that is attributable to the land concerned: Victorian Conservation Trust Act 1972 (Vic) s 3B.

    ↑

58. City of Greater Bendigo, Urban Tree Management Policy (16 August 2017) 4; see also City of Melbourne, Urban Forest Strategy—Making a Great City Greener 2012–2032 <https://www.melbourne.vic.gov.au/community/parks-open-spaces/urban-forest/Pages/urban-forest-strategy.aspx>.

    ↑

59. City of Stonnington, Urban Forest Strategy 2017–2022 (June 2017) 4 <https://www.stonnington.vic.gov.au/Live/Urban-Forest/Urban-Forest-Strategy>.

    ↑

60. City of Ballarat, ‘Exceptional Tree Register’, Tree Management (Web Page, 2019) <http://www.ballarat.vic.gov.au/city/parks-and-outdoors/tree-management>.

    ↑

61. South Gippsland Shire Council, Tree Management Plan 2017 (26 July 2017) 4.

    ↑

62. Submission 28 (HVP Plantations).

    ↑

63. Public land is not defined in the Victoria Planning Provisions or the Planning and Environment Act 1987 (Vic), but it is commonly accepted that public land comprises: Crown land; land vested in or owned by a Minister, government department, public authority or municipal council; land otherwise used for a public purpose: Department of Environment, Land, Water and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) 31–3; See also Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 2: Public Land Zones (Practice Document, January 2018) <https://www.planning.vic.gov.au/resource-library/planning-practice-notes>.

    ↑

64. For, eg, the role of local councils in tree management is particularly complicated. Their obligations in a particular case will be affected in part by where the tree is located—for example on a road, council property and Crown land—and which laws apply in each case, whether it be the Local Government Act 1989 (Vic), the Crown Land (Reserves) Act 1978 (Vic) , the Road Management Act 2004 (Vic), the Country Fire Authority Act 1958 (Vic) (where an emergency has occurred) and/or the common law duty of care: Department of Environment, Land, Water and Planning (Vic) Review of the Local Government Act (Discussion Paper, 2015) 113.

    ↑

65. See, eg, Timbs v Shoalhaven City Council (2004) 132 LGERA 397—this case illustrates how death may be caused by falling trees, although it is not a neighbourhood dispute as defined by the terms of reference of this inquiry. In this case, a subject tree protected by council fell on the tree owner’s own land, killing him in the process. See also Coroners Court of New South Wales, Finding into Death with Inquest of Bridget Wright (2014/56521) (20 November 2015) and Coroners Court of Victoria, Finding into Death with Inquest of Patiya May Schreiber, (2013/6032) (10 September 2015), where the deceased persons were each killed by a falling branch.

    ↑

66. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 4(2)(a).

    ↑

67. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 3.

    ↑

68. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) 77–8.

    ↑

69. Neighbourhood Disputes About Plants Act 2017 (Tas) s 9(a).

    ↑

70. See, eg, Road Management Act 2004 (Vic); Submission 32 (Municipal Association of Victoria).

    ↑

71. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) Recommendation 3-3.

    ↑

72. Submissions 19 (Name withheld); Survey Respondents 43, 72, 111.

    ↑

73. Submission 22 (Name withheld); Survey Respondents 43, 72.

    ↑

74. Submission 19 (Name withheld).

    ↑

75. Survey Respondent 75.

    ↑

76. Anti-social Behaviour Act 2003 (UK) c 38. pt 8; High Hedges (Scotland) Act 2013 (Scot) asp 6; High Hedges Act (Northern Ireland) 2011(NI) c 21.

    ↑

77. Property Law Act 2007 (NZ) ss 332–338.

    ↑

78. Trees (Disputes Between Neighbours) Act 2006 (NSW) pt 2A. This part applies only to groups of two or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).

    The Act also allows an affected neighbour to bring action for obstruction of sunlight to a window of a dwelling and views from a dwelling: s 14B. NB: Not obstruction of sunlight to a roof of a dwelling.

    ↑

79. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009). This review received 127 submissions concerned about high hedges, 125 of which argued that trees that block light should be covered, and 115 of which argued that a blocked view should also be a ground for interfering with a tree.

    ↑

80. Ibid 34.

    ↑

81. Ibid 37.

    ↑

82. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14E(2)(b).

    ↑

83. Department of Attorney General and Justice (NSW), Review of Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (High Hedge Provisions) (Report, 2013).

    ↑

84. Ibid 10.

    ↑

85. Ibid 16.

    ↑

86. Land and Environment Court of New South Wales, Class 2: Tree Disputes and Local Government Appeals (Web Page, 22 November 2018) <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/class_2.aspx>.

    ↑

87. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66(2)(ii).

    ↑

88. Ibid s 66(3).

    ↑

89. Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) cl 61.

    ↑

90. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) 143.

    ↑

91. Ibid 139, 143.

    ↑

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

    ↑

93. Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(2).

    ↑

94. Tasmania Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views (Report No 21, January 2016) 2.

    ↑

95. Ibid 50.

    ↑

96. Ibid.

    ↑

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

    ↑

98. As of April 2017, 1.6 million properties around Australia had photovoltaic solar panels and new figures from the Australian Photovoltaic Institute show the country’s solar power capacity is expected to double over the next few years: Damien Carrick and Tegan Osborne, ‘Solar Panels and The Law: Can You Stop Your Neighbour From Blocking Your Sunlight?’, The Law Report (ABC Radio National, 18 May 2017) <https://www.abc.net.au/news/2017-05-16/solar-panels-and-the-law-is-there-a-right-to-sunlight/8526752>; see also Department of Premier and Cabinet (Vic), Thousands of Victorian Homes Save Millions on Solar (Web Page, 18 January 2019) <https://www.premier.vic.gov.au/thousands-of-victorian-homes-save-millions-on-solar/>.

    ↑

99. See, eg, Gregory Moore, ‘Economic Value of Trees’, Sustainable Gardening Australia (Web Page) <https://www.sgaonline.org.au/economic-value-of-trees/>; see also Ram Pandit et al ‘The Effect of Street Trees on Property Value in Perth, Western Australia’ (2013) 110 Landscape and Urban Planning 134–42.

    ↑

100. See, eg, Order of Magistrate J Lesser (Magistrates Court of Victoria, H13012408, 14 February 2018) referred to in Khaleda Rahman, ‘Every Neighbour’s Worst Nightmare: Family Comes Home to Find Beloved Trees Destroyed by Chainsaw Wielding Man’, Daily Mail Australia (online,11 May 2017) <https://www.dailymail.co.uk/news/article-4494582/Family-returns-home-backyard-trees-CHOPPED-down.html>.

     ↑

101. Department of Environment, Land, Water and Planning (Vic), Protecting Residential Rooftop Dwellings (Web Page, 11 October 2018) <https://www.planning.vic.gov.au/policy-and-strategy/reducing-overshadowing-on-rooftop-solar-panels>; See also Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 88: Planning Considerations for Existing Residential Rooftop Solar Energy Facilities, October 2018 <https://www.planning.vic.gov.au/policy-and-strategy/reducing-overshadowing-on-rooftop-solar-panels>.

     ↑

102. Department of Environment, Land, Water and Planning (Vic), Managing Overshadowing Risk When Installing a Rooftop Solar System: A Home Owners Guide (Document, October 2018) <https://www.planning.vic.gov.au/policy-and-strategy/reducing-overshadowing-on-rooftop-solar-panels>.

     ↑

103. Ibid.

     ↑

104. Submission 25 (City of Boroondara).

     ↑

105. Submissions 12 (Dr Gregory Moore OAM), 37 (Ian Hundley); Consultation 6 (Ben Kenyon).

     ↑

106. Submission 37 (Ian Hundley); Survey Respondent 83.

     ↑

107. The native vegetation removal regulations govern the removal of native vegetation in Victoria. They require landholders to obtain a planning permit to remove, destroy or lop native vegetation. The ‘Guidelines for the Removal, Destruction or Lopping of Native Vegetation’ is now an incorporated document in all planning schemes in Victoria.

     ↑

108. Department of Environment, Land, Water and Planning (Vic), Review of The Native Vegetation Clearing Regulations (Web Page) 29 October 2018) <https://www.environment.vic.gov.au/native-vegetation/review-of-native-vegetation-clearing-regulations>.

     ↑

109. Department of Environment, Land, Water and Planning (Vic), Native Vegetation Removal Regulations— Compliance and Enforcement Strategy (December 2017) 15–17 <https://www.environment.vic.gov.au/native-vegetation/native-vegetation>.

     ↑

110. Department of Justice & Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 9.

     ↑

111. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 97.

     ↑

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

     ↑

113. Neighbourhood Disputes About Plants 2017 (Tas) 39(1).

     ↑

114. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 23(3); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 97(4); Neighbourhood Disputes About Plants Act 2017 (Tas) s 39(3).

     ↑

115. For example, the NSW Act was expanded to allow NSWLEC to make orders to interfere with trees for access to sunlight and views: See Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009).

     ↑