Introduction

2.1 This chapter examines the scope of the neighbourhood tree dispute problem and identifies the frequency of tree disputes in Victoria. It then explores the common types of tree disputes that occur and the impact they have on neighbours.

2.2 The potential for these disputes to seriously damage neighbour relations makes it important for them to be resolved quickly and effectively. Identifying some of the underlying causes of disputes has helped the Commission to develop its reform recommendations and guide policy development for the new Act. These underlying factors are discussed at the end of the chapter.

Prevalence of tree disputes

2.3 Determining the frequency and number of tree disputes in the community is difficult. Disputes are not commonly litigated in court. However, data provided by the Dispute Settlement Centre of Victoria (DSCV) and anecdotal information from local councils, government bodies, arborists and lawyers indicate that a significant number of tree disputes occur in Victoria.¹

2.4 Disputes do not appear to be limited to particular locations or types of property interest. The Commission received responses from landowners, tenants, businesses and other organisations in metropolitan, regional and rural areas about their tree disputes. Tree disputes were reported between neighbours who occupy their property only periodically, such as in the case of a holiday home,² and where a large tree sits on a common boundary that is shared by multiple properties.³

Tree disputes in the courts

2.5 Few tree disputes are litigated in the courts. According to DSCV data, ‘matters that proceed to Court are usually much more serious, and typically involve some degree of property destruction or damage’.⁴

2.6 The infrequent litigation of less serious matters appears to be largely because taking legal action is too expensive and outcomes are uncertain.⁵ Tree disputes are not typically handled by community legal centres or covered by Victoria Legal Aid grants for legal assistance.⁶ The low rates of litigation are discussed further in Chapter 3.

2.7 If legal action is commenced, it generally occurs in the Magistrates’ Court of Victoria, which has jurisdiction over small civil claims up to the value of $100,000.⁷ However, the number of tree disputes filed and determined by the Magistrates’ Court is unknown because the court does not report these decisions and does not distinguish between the causes of action, for example nuisance.

2.8 The Victorian Civil and Administrative Tribunal also hears cases about problems caused by trees as part of its review jurisdiction under the Planning and Environment Act 1987 (Vic).⁸

2.9 The Commission is aware of only six reported cases from higher courts⁹ within Victoria.¹⁰ The older case of Barton v Chhibber¹¹ is the only reported case heard by the Supreme Court of Victoria. A neighbourhood dispute about vegetation has been held to be ‘the heart of the matter’ in another Victorian Supreme Court case pertaining to conditions of planning permits.¹² The majority of reported cases from higher courts involving tree disputes were initiated in the Magistrates’ Court, and later transferred to the County Court.¹³

Volume of tree enquiries received by the Dispute Settlement Centre of Victoria

2.10 Tree disputes that are not litigated are likely to go unrecorded unless the parties have contacted DSCV. DSCV is part of the Victorian Department of Justice and Community Safety and provides free dispute resolution services across 14 metropolitan and regional locations in Victoria.¹⁴

2.11 Data from DSCV indicates that enquiries relating to trees¹⁵ were the third most common enquiry to DSCV over the 5.5-year period from December 2011 to May 2017. In that time 18,727 of 109,039 DSCV community enquiries related to trees.¹⁶ This represents an average of 17.2 per cent of DSCV’s total workload over that period or approximately 3,400 enquiries per year. The rate remains relatively constant over that time.¹⁷ The highest percentage of tree-related enquiries (19.2 per cent) occurred in 2012, with the lowest (15.7 per cent) recorded in 2014.¹⁸

2.12 DSCV provided a breakdown of cases received by season, highlighting an increase in enquiries in the spring and summer months. DSCV attributes this to springtime vegetation growth and people spending more time outdoors.¹⁹

2.13 DSCV reported anecdotally that tree-related enquiries most commonly involve overhanging branches and encroaching tree roots that cause damage to property as well as hedging that might obstruct the owners’ view. A further quantitative breakdown of specific tree-related issues affecting neighbours who contact DSCV is not available.²⁰ DSCV data also suggests that it received more enquiries in the relevant period from metropolitan areas than regional areas.²¹

2.14 ENSPEC, an arboricultural consulting firm, noted some limitations in the data reported in the consultation paper on the prevalence of tree disputes in the community:

What is not provided in [the DSCV] data is the number of [tree disputes] that were trivial matters, such as falling leaves. It is reasonable to expect that most trivial complaints would not go beyond an initial enquiry. The DSCV statistics provided suggest that few of these may actually be cases of genuine or substantial harm as only 5.3% of cases are successfully resolved with DSCV assistance. A better analysis of the available data, or better data, may provide a more accurate picture of the scope of the problem that actually requires an avenue of resolution provided through reform of the law…. This begs the question of whether there is actually a significant issue, or just a high level of unreasonable expectation or confusion in the community?²²

2.15 Further consideration of the data from DSCV suggests that the number of matters that progressed to mediation or reached assisted settlement from December 2011 to May 2017 is much smaller than the number of tree enquiries DSCV originally received. Only
5.3% of the enquiries resulted in a dispute resolution outcome -whether through mediation, or where DSCV facilitated an outcome for parties directly, or provided advice to enable parties to resolve their matter. This differs from the average dispute resolution outcome rate for other matters which is much higher at 15-16%. This information indicates that tree enquiries are less likely than other matters to progress to a dispute resolution outcome.²³

2.16 As ENSPEC suggests this may be because not all of these original enquiries amounted to disputes about ‘genuine or substantial harm’ and perhaps some enquiries were from people who were merely seeking information. DSCV points to a wide range of factors to explain the lower resolution rates for tree disputes that includes unclear rights and obligations, minimal scope for negotiation and considerable barriers to resolving through Court. Another factor identified is low awareness in the community about rights and obligations. It suggests that ‘many DSCV customers contact the centre to purely enquire about their rights and obligations with regard to tree issues. At the time of contact, there may not be a dispute or it may be too early in the process for DSCV to facilitate a resolution’.²⁴ DSCV’s dispute resolution process is discussed in Chapter 3. Several stages are identified before a matter is assessed as suitable for mediation—clarifying issues in dispute, answering questions and discussing options.

2.17 While acknowledging that DSCV refers a smaller number of matters to mediation than it receives as enquiries, the Commission remains of the view that the level of enquiries to DSCV (an average of approximately 3400 per year over the relevant period) and the proportion of DSCV’s workload that this represents, being 17.2%, are significant.²⁵ Further, In the 2017–18 financial year DSCV reported over 26,000 unique page views for its online content relating specifically to trees.²⁶

Community responses about the frequency of tree disputes

2.18 Submissions and consultations also suggested a high incidence of tree disputes in the community. The Law Institute of Victoria stated that tree disputes ‘occur with relative frequency’²⁷ and Barwon Community Legal Service reported that between April 2017 and March 2018 it provided legal advice to eight clients with tree disputes.²⁸ Arborists suggested that they come across tree disputes frequently during the course of their work.²⁹

2.19 This accords with information provided by the Land and Environment Court of New South Wales (NSWLEC) which estimated that in New South Wales the tree disputes that proceed through to the Court represent only a small proportion of those occurring in the community.³⁰

2.20 Many people in Victoria contact their local council, community legal centre or an arborist for assistance with a tree dispute.³¹ Victorian councils do not typically keep formal records of the number of enquiries relating to tree disputes, which they view as private, civil matters outside the role of local councils. Local councils typically refer such enquiries to DSCV.³²

2.21 However, some local councils were able to provide estimates on the number of enquiries they receive. The number varies depending on the degree of vegetation in local council areas, the location of the council and record-keeping practices. The City of Boroondara reported that it receives ‘multiple daily enquiries’ from residents asking for help with tree disputes.³³ Nillumbik Shire Council reported that it receives approximately two enquiries a week.³⁴ The City of Port Phillip estimated that it receives approximately 20 enquiries a year.³⁵ Baw Baw Shire Council reported that its front desk staff receive enquiries about tree disputes ‘from time to time’.³⁶

2.22 HVP Plantations is a private timber plantation business that shares boundaries with rural and residential neighbours. It becomes involved in approximately 10 tree disputes a year, which it resolves informally.³⁷

2.23 Aboriginal Victoria suggested that it receives 6 to 10 enquiries a week from individuals wanting to know whether a particular tree is protected under the Aboriginal Heritage Act 2006 (Vic) and how this might affect proposed development works on nearby land.³⁸Heritage Victoria also reported that it receives a small number of enquiries about disputes between neighbours concerning trees of heritage value.³⁹

2.24 The Commission is of the view that the data from DSCV suggests that issues about trees do arise frequently in the community (whether or not they become disputes) and that more clarity in the law and a clearer dispute resolution process would be useful. This data is supported by community responses. The Commission is of the view that reforms may not only reduce the large number of enquiries to DSCV, but also better assist DSCV to resolve them.

Types of tree disputes

2.25 The consultation paper identified that encroachment of branches or tree roots are the most common cause of tree-related problems in cases brought before a court. This likely reflects the seriousness of the damage, which would justify the expense and time involved in taking court action.⁴⁰

2.26 Case law suggests that overhanging branches can affect neighbouring properties by taking up space or dropping leaf litter, and by causing damage to property by exerting pressure on or falling onto structures.⁴¹Encroaching roots may cause damage to structures and foundations, as well as to other plants, and may pose a safety hazard.⁴² Trees may also cause harm to neighbours by affecting their health or causing injuries, including by triggering allergies, causing injury from falling branches or trees, or creating trip hazards from structures compromised by root growth.⁴³

2.27 The most common tree disputes referred to in community responses were about:

• overhanging branches⁴⁴

• encroaching roots⁴⁵ or

• the presence of large trees⁴⁶ or the proximity of trees to boundaries between properties.⁴⁷

2.28 Community responses also reveal disputes about:

• increased bushfire risk⁴⁸

• economic loss⁴⁹

• neighbours objecting to tree works conducted by neighbouring tree owners⁵⁰

• tree works undertaken without the tree owner’s consent or that harm the tree⁵¹

• particular issues unique to rural settings.⁵²

2.29 A smaller number of people identified circumstances involving dead trees⁵³, the spread of weeds⁵⁴ or trees hosting pests⁵⁵ as other conditions causing tree disputes.

Damage to property and dropping of leaf litter

2.30 The most common complaint spoken about to the Commission was damage to property,⁵⁶ followed closely by tree disputes over the dropping of leaf litter.⁵⁷

2.31 Damage to a dividing fence was the most common example of damage to property.⁵⁸ Other types of damage to property, attributed commonly to encroaching roots,⁵⁹ included damage to building foundations,⁶⁰ paving,⁶¹ driveways,⁶² stormwater facilities, polyvinyl chloride (PVC) pipes,⁶³ substrate (in the form of heaving)⁶⁴ and landscaping (for example, grass and soil).⁶⁵

2.32 Concerns about leaf litter included problems with leaves, nuts, fruit, twigs or small branches, depending on the species of tree.⁶⁶ Community members affected by leaf litter reported that it resulted in the blocking of roof gutters⁶⁷ (most common), the littering of driveways, open spaces and pools,⁶⁸ and led to noise, for example, from the dropping of gumnuts or berries onto hard surfaces.⁶⁹

Harm to people

2.33 A smaller number of people cited harm (or injury) to people as a reason for tree disputes, particularly due to concerns about living near overhanging branches, encroaching roots and large trees.⁷⁰ HVP Plantations described these types of disputes as about ‘life and limb issues’.⁷¹ Some specifically expressed concern about the risk of harm to children playing in backyards,⁷² the triggering of allergies due to pollen⁷³ and loss of life.⁷⁴ The City of Boroondara receives approximately six claims relating to pollen allergies each year.⁷⁵

2.34 One submission noted ‘an insurance company may be able to restore/rebuild a building damaged by a tree, but it cannot restore a broken body or human life’.⁷⁶

2.35 The City of Boroondara advised that it had received reports from neighbours experiencing ‘psychological distress’ due to the fear and stress of living near a tree they think may drop or fall.⁷⁷ A survey respondent reported that they had been involved with tree disputes involving ‘psychological harm’ caused by the ‘assumed risk of tree failure’.⁷⁸

2.36 Some people reported that the mere presence of trees in some circumstances, without any actual or tangible adverse consequence, was the cause of their dispute.⁷⁹ For example, the presence of large trees⁸⁰ resulted in heightened fear or anticipation of falling trees or branches,⁸¹ especially in windy conditions.⁸² Neighbours described concerns about living near trees that were 16 metres to 50 metres high.⁸³One affected neighbour stated, ‘The tree that really frightens me is a big 40 meter single tree ‘trunk’ which doesn’t have boughs and is entirely inside [the tree owner’s] boundary but leaning towards my house. I feel very nervous seeing it bending around in strong winds’.⁸⁴ Another community member noted, ‘I consider that I am in danger of a huge tree or part thereof, failing on my house and seriously injuring, maiming or killing someone on my property’.⁸⁵ Large dead trees were also described as posing a greater risk of eventually falling.⁸⁶

Bushfire risk

2.37 Some responses also identified that tree disputes can occur about the bushfire risk posed by trees.⁸⁷ One person suggested that they live in a country town with a designated high bushfire risk and that their property’s Bushfire Attack Level (BAL) rating,⁸⁸ as assessed by the County Fire Authority, was high because of vegetation on neighbouring land. The community member suggested that the high cost of removing the vegetation contributed to the dispute being left unresolved. However, it was noted that this cost ‘would be miniscule’ compared to the potential loss of property if a bushfire occurred.⁸⁹

Economic loss

2.38 One submission suggested that trees on neighbouring land could contaminate their land or potentially lead to economic loss, for example in the form of loss of business.⁹⁰ Another submission was concerned about the devaluation of their property due to the perceived or real risk posed by a neighbour’s tree.⁹¹ HVP Plantations raised the issue of the economic cost of tree maintenance along newly subdivided boundaries for rural landowners.⁹² The costs associated with abating trees was also noted.⁹³ One survey respondent described the effect of neighbouring trees on their business:

Use of our headland will be affected…Trees are expected to reach final height of around 12–15m and will negatively affect our viticultural business. Needles of this species (pine radiata) is expected to spoil the soil quality, which again will impact our [business] with expected long term loss of fruit quality and quantity.⁹⁴

Objecting to tree works conducted by the tree owner

2.39 Not all tree disputes focus on how a tree is adversely affecting neighbouring property.⁹⁵ Some tree disputes may occur when a neighbour wants to retain surrounding vegetation and objects to the pruning or removal of a tree by its owner.⁹⁶

2.40 The Commission observes that trees on private land are usually privately owned, but the benefits of living in a treed environment are shared. Neighbours may enjoy the increased shade, cooling properties, biodiversity and aesthetic value of a neighbour’s tree.⁹⁷ Baw Baw Shire Council suggested that its residents are generally environmentally conscious and prefer to retain as much vegetation as possible.⁹⁸ It reported that many of the enquiries it receives are from concerned residents wanting to know whether or not a neighbouring tree owner is permitted to cut or remove a tree, especially where the resident believes the tree is a significant tree protected under the local council’s planning scheme, or forms part of an endorsed landscape plan contained in a planning permit.⁹⁹

2.41 Nillumbik Shire Council stated that approximately half of the enquiries about tree disputes are from neighbours who are concerned about trees being removed on neighbouring property.¹⁰⁰The Council noted that sometimes residents make early enquiries before they become involved in a tree dispute to ascertain rights and responsibilities about a neighbouring tree and any applicable planning controls or exemptions.¹⁰¹

Tree works undertaken without consent or that harm the tree

2.42 Another type of tree dispute may occur where an affected neighbour decides to take matters into their own hands and trim or cut down a tree in excess of their right to abate¹⁰² and without the permission or consent of the tree owner.¹⁰³ This may involve trespassing on the tree owner’s land.¹⁰⁴ Abatement is discussed in Chapter 3.

2.43 Sometimes a tree itself may be affected by activities carried out on neighbouring land. One person, also a tree owner, described a situation where their neighbour began excavation along the boundary fence which included cutting back at least 15 substantial roots of their tree, estimated to be over 100 years old. The tree was located two metres from the boundary and the submitter believes this activity seriously affected the health of their tree.¹⁰⁵

2.44 In some situations, if a tree dispute remains unresolved, people have resorted to illegal action such as poisoning their neighbour’s tree.¹⁰⁶ In one case, reported in the media, a couple were convicted and fined for criminal damage in the Geelong Magistrates’ Court after they pleaded guilty to poisoning more than 40 cypress trees on neighbouring properties.¹⁰⁷ The Geelong Advertiser reported that the couple were alleged to have poisoned the trees following longstanding disputes over the trees which they claimed had caused root damage to their land and property.¹⁰⁸

Tree disputes in rural settings

2.45 HVP Plantations told the Commission that in the rural context, the escape of livestock following damage to a fence caused by a tree can be a concern as well as the cross-pollination of plant species.¹⁰⁹ HVP also identified that concerns about trees arise where ‘treed land adjoin habitation’ and there is a ‘risk that trees will fall across people or buildings’.¹¹⁰ Others identified that concerns can arise over the bushfire risk posed by vegetation on neighbouring land in country areas.¹¹¹

Other types of tree disputes

2.46 The Law Institute of Victoria (LIV) noted the role of conservation covenants in tree disputes. Conservation covenants are voluntary agreements entered into by landowners to protect vegetation on their land (see Chapter 10). These agreements bind all future owners and prevent development that will interfere with the protected vegetation.¹¹² The LIV explained:

[W]here farming and conservation interact, each landowner may be concerned that the neighbouring operations will create obstacles for their individual goals as landowners: a farmer may be concerned by the spread of weeds, or an increase in native fauna such as kangaroos, as a result of the conservation covenant, whereas the covenantor might be concerned with chemical spray drift, soil disturbance and noise, caused by farming operations.¹¹³

2.47 Arborists and local councils reported that tree disputes can also arise in the development context when, for example, a developer may be attempting to remove trees without a permit or damaging trees on neighbouring land.¹¹⁴ The trend of ‘moonscaping’ in developments to remove all existing vegetation on a plot to make way for built structures was also noted.¹¹⁵

2.48 Tree disputes have also been known to occur over the removal of or damage to Aboriginal scarred trees or other culturally significant vegetation.¹¹⁶

2.49 Tree disputes can be multifaceted and may involve a combination of factors described above. As one community member described:

My neighbour’s tree branches overhang the boundary fence and intrude into my yard. The trees are pushing the fence and a section of fence has become loose. The trees pose a fire risk as they are only 1.5 metres away from my house. The tree branches reach the roof gutters of my house and fill the gutters with leaves and branches.¹¹⁷

Impact of tree disputes on neighbours

2.50 The following negative impacts of tree disputes were raised in responses to the consultation paper:

• the breakdown of neighbour relations and cessation of all communication¹¹⁸

• incurring significant costs and being out-of-pocket¹¹⁹

• being unable to pay for the costs of repairs or maintenance¹²⁰

• having to sell the affected property and move away¹²¹

• economic loss (especially in regional areas where land is farmed or used commercially)¹²²

• feeling frustrated and distressed because of involvement in a protracted dispute ¹²³

• being anxious or fearful about a tree falling and causing damage or harm, especially during turbulent weather¹²⁴

• having to call the police or being charged with a criminal offence (for example, assault) resulting from an escalated tree dispute.¹²⁵

2.51 The Tasmania Law Reform Institute identifies that these disputes can have ‘consequences for the wider community through their potential to create civic discord and lead to instances where laws are ignored or purposely broken’.¹²⁶

2.52 The stress and anxiety that can be caused by tree disputes is compounded by the frustration people experience when they attempt to resolve these disputes. Confusion can arise about rights and responsibilities, potentially exacerbating existing tensions and prolonging disputes.

Breakdown of neighbour relations

2.53 Like other types of neighbourhood dispute, tree disputes can severely affect once-amicable neighbour relationships or may be the final straw in a pre-existing conflict.¹²⁷ They can create considerable stress and anxiety and can significantly impair people’s experience of living in their homes.¹²⁸The LIV explained that tree disputes ‘often affect an individual’s right to quiet enjoyment of their land, which can have a significant impact on their livelihood.’¹²⁹

2.54 The proximity of one’s neighbours can lead to more frequent reminders about interference and interactions with them, and the feeling of having one’s sense of ownership challenged, and so tree disputes can escalate quickly with serious consequences.¹³⁰

2.55 Some community members who had experienced a tree dispute described having a poor relationship with their neighbour as a result.¹³¹ This ranged from a relationship becoming ‘strained’,¹³² or being verbally ‘abuse[d] over the fence’,¹³³ through to police intervention.¹³⁴

2.56 Tree disputes can also lead to applications for a personal safety intervention order.¹³⁵In Miles v Barca¹³⁶ Justice Byrne of the Supreme Court held:

Although there have been pre-existing differences, even feuds, between the neighbours, the incident which provoked this proceeding concerned a manna gum tree which grows on the Miles property close to the Barca boundary.¹³⁷

Significant costs

2.57 In some cases, the cost of repairing damaged property, or of tree works or engaging an arborist may be quite substantial. These costs may not be able to be recouped from the tree owner. For example, one person stated that it would cost over $2000 to have overhanging branches cut up to the boundary line.¹³⁸

2.58 An arborist recounted a tree dispute concerning the roots of a tree that had grown into and under a neighbouring property. This had destroyed storm water facilities, which led to heaving of substrate and caused the corner of the building to drop. PVC pipes were also broken. The total cost of the damage was estimated to be over $60,000.¹³⁹

2.59 Some people noted that they simply could not pay for the cost of tree works or the cost of repairs.¹⁴⁰

Emotional toll of tree disputes

2.60 Some community members described the emotional toll of being involved in a tree dispute. They reported feelings of frustration and distress, especially with protracted disputes that cannot be resolved.¹⁴¹

2.61 Some people also reported feeling anxious or fearful about occupying their homes, or yards especially during turbulent weather or bushfire season.¹⁴²

Greater impact on vulnerable people

2.62 Some people in the community can face greater challenges when trying to resolve tree disputes. Barwon Community Legal Service (BCLS) noted that the eight clients who sought its legal assistance with a tree dispute between April 2017 and March 2018 were ‘largely the most vulnerable in our community being elderly or suffering from mental illness’ and that all of these clients ‘identified their income level as low with the majority receiving their only income from Centrelink’.¹⁴³

2.63 Arborist Robert Mineo suggested that some older people may become more frequently involved in tree disputes because it is more difficult for them to maintain and manage problem trees.¹⁴⁴ Financial incapacity to engage an arborist to assess a tree or prune overhanging branches was also noted in a submission.¹⁴⁵

2.64 BCLS gave an example of a client who is ‘elderly so cannot cut and return the branches herself nor can she afford to spend her aged pension on hiring someone [to do so]’.¹⁴⁶

2.65 One person stated, ‘I am now left with gutters and downpipes full of leaves and debris which is a constant, expensive and losing battle for a 70-year-old to maintain’.¹⁴⁷

2.66 Another stated:

Neighbours trees hang over [the] fence and close to my roof, I’m a pensioner and can’t cut them myself and can’t afford to have them cut constantly ... I can’t do it physically. It’s dangerous I could get hurt and … the financial burden is too much.¹⁴⁸

2.67 DSCV explained that ‘Older people and pensioners are often left feeling disempowered. They do not have support, language skills, money or confidence to take legal action. They may also be intimidated by mediation.’ Accordingly, ‘DSCV takes steps that participation occurs with adequate support to address any power imbalance, interpreter services to combat language issues and referrals to legal services or financial counsellors as required’.¹⁴⁹

Factors contributing to tree disputes

2.68 In exploring community responses to the consultation paper, the Commission has identified factors that contribute to tree disputes. All of these factors can prolong and heighten disputes.

Breakdown in communication

2.69 Almost all available community resources about tree disputes stress the importance of communicating respectfully with neighbours in recognition of the fact that communication can quickly descend into conflict.¹⁵⁰

2.70 Many affected neighbours reported that when they approached the tree owner, they were ignored or, in some cases, met with hostility.¹⁵¹ A lack of clarity in the law means that there is no motivation for a neighbour to engage in conversations or be reasonably expected to manage their tree in a certain way. It was also stated that pre-existing conflict between neighbours can cause or exacerbate tree disputes.¹⁵²

Lack of knowledge about trees

Lack of understanding about the biology of trees

2.71 Many arborists noted that a lack of knowledge about trees contributed to the occurrence of tree disputes. Many community members are unaware of how trees live and grow, and how they interact with built structures in urban environments.¹⁵³ This lack of knowledge leads to negative perceptions within the community about living near trees, described by arborists as generally ‘misplaced’¹⁵⁴ or ‘dramatically inflated’.¹⁵⁵

2.72 Dr Gregory Moore OAM stated that ‘we don’t understand our own flora’. He explained that most people do not know that, for example, once the canopy of an oak tree has fully formed, it remains that way, with no dramatic changes. Similarly, eucalypts are misunderstood—these trees repeatedly shoot up and ‘die back’ as part of their natural growth cycle, not because they are dying. Dr Moore also stated that many people attribute summer limb drop¹⁵⁶ to certain species of trees, even though there is no arboricultural data or evidence to suggest some species of tree are more prone to this than others.¹⁵⁷

2.73 Arborists at VTIO ArborCamp agreed that ‘education is a big issue’ and that a lack of education and knowledge fuels tree disputes.Many of these arborists suggested that they play a significant role in educating the public on how trees grow. It was identified that better education about the biology of trees, tree management and the importance of the urban forest could alleviate neighbours’ concerns about trees. The Commission was told that most people do not realise that properly managing a tree is a long-term task, sometimes with no quick fix.¹⁵⁸

Incorrect assumptions about the causes of problems

2.74 ENSPEC, an arboricultural consulting firm, told the Commission that healthy trees pose no greater risk than built structures in urban and residential settings. However, it is common for people to fear the dropping of overhanging branches or the falling of entire trees, especially in storms, more than the failure of other structures on or near their property. ENSPEC further explained:

Management of unreasonable risk is appropriate; however, the elimination of all risk from any cause, including trees, is not practical. The very small risk of physical harm to persons that the total population of trees represent is outweighed by the benefits that the trees provide. Overall risk from trees is extremely low.¹⁵⁹

2.75 Many arborists suggest that it is common for people to believe that trees pose a risk or are at fault without any evidence. The perception about the tree often does not accord with tree biology or arboriculture.160 Arborist Ben Kenyon noted that many engineers and plumbers wrongly attribute structural or plumbing damage to neighbouring trees, thus fuelling people’s misplaced perceptions and disputes.¹⁶¹

2.76 A further issue can arise where, despite an arborist’s assessment that a tree poses no risk of damage or harm, people insist on pruning or cutting off overhanging branches thereby damaging the health of a tree and creating an increased risk. Dr Moore explained that pruning a branch results in changes to the dynamic forces of a tree, which means it may shed a branch elsewhere. This risk may increase if a neighbour or a tree lopper without arboricultural expertise cuts or prunes encroaching tree parts indiscriminately.¹⁶²

2.77 Damage attributed to a tree’s root system was identified by arborists as the most common example of community perceptions and arboricultural evidence being at odds. Arborist Dr Karen Smith noted:

There are also many deeply held beliefs about trees that bear no rigorous scrutiny when our understanding of tree biology and arboriculture is used to examine them. This is especially so regarding tree roots.¹⁶³

2.78 Many people believe that their neighbour’s tree roots are causing problems with their foundations, dwellings and plumbing. However, the Commission was told by arborists that property damage is a ‘multi-factorial issue’ with arboricultural assessments often showing that damage is caused by poorly installed or ageing infrastructure or pipes that have cracked due to poor quality, rather than the entry of roots. Mr Kenyon observed that root damage can be easy to prove or disprove by cutting into the ground or using other root detection techniques.¹⁶⁴

2.79 The Commission was told that tree roots do not, contrary to popular perceptions, exert enough pressure to crack pipes or damage ‘properly installed infrastructure’ such as, for example, a concrete slab. It is also rare for tree roots to crack concrete footings unless they grow in a very specific upwards direction.¹⁶⁵ Roots also tend to grow in the shallow layers of soil.¹⁶⁶

2.80 Dr Smith further described the complexities that arise in assessing property damage from tree roots:

It was never possible to attribute all the damage to the tree, once data such as moisture at footing depth, footing information, age of the house and construction information have been taken into consideration. Once real data was collected and examined the complainants came to understand that the tree was not the sole cause of the damage. Property damage was never attributed to any more than 20% of the cost of repairs. In many cases collecting data on soil moisture at footing depth would eliminate the tree altogether. This soil moisture data often showed that cracked pipes, failed Victorian footings or damaged down pipes were the cause of damage. If the footings were damp where damage had occurred it was often leaking pipes or failed storm water that had caused footings to slump.¹⁶⁷

2.81 Early management techniques, such as proper tree placement on properties and early formative pruning, can be used to prevent tree disputes from arising in the first place.¹⁶⁸ However, it was acknowledged that without widespread community awareness about arboriculture and tree management, community members cannot be expected to always be proactive in the management of trees on their land.¹⁶⁹

2.82 Dr Moore also explained that the insurance industry can also fuel people’s perceived risk of trees. Dr Moore described advertisements from a well-known insurance company that offered to charge people lower premiums if they had no trees on their land. He also suggested that stories in the media about trees falling in storms can exacerbate people’s existing misperceptions of trees when they are buying or living on vegetated land.¹⁷⁰

Problems obtaining expert assistance

2.83 An arborist is a qualified professional trained in cultivating, caring for, and maintaining trees.¹⁷¹ Arborists are best placed to assess the health and condition of trees and any possible impact or interference they will have on built structures. Private arborists reported that they are frequently contacted by people for help with a tree dispute.¹⁷²

2.84 Ben Kenyon stated that developers and town planners did not routinely rely on arborist reports 20 years ago. Mr Kenyon noted, however, that there is greater awareness about and importance placed on arboriculture by the general community now, particularly as people become more environmentally conscious. Mr Kenyon explained that this change is also reflected in current local laws and local council policies that seek to protect and maintain the urban forest.¹⁷³

Role of arborists

2.85 Arborists use a range of tools or assessment methods to determine whether or not a tree is the cause of damage to property or whether or not a tree will fall or drop branches. Dr Moore explained that a properly qualified arborist will be able to tell whether or not a tree has or will shed a major limb simply by looking at it. Arborists may also employ manual techniques, such as an air knife or ground-penetrating radar, to detect the presence of roots.¹⁷⁴

2.86 A number of arborists agreed that the most common approach when they are involved in an issue involving a dispute with a neighbour, is to explain to their client the option to abate up to the boundary line.¹⁷⁵ They may even advise the client about the importance of abating a tree in accordance with any relevant Australian Standards,¹⁷⁶ although one arborist acknowledged that this may be unclear and vague advice to give community members.¹⁷⁷ On the other hand, some arborists reported that when it comes to the legal dimensions of a tree dispute, they may simply tell their clients to seek legal advice.¹⁷⁸

2.87 Some arborists may simply perform an assessment of the tree or complete the requested tree works, while others may provide additional advice about how to resolve the tree dispute or perform an improvised dispute resolution role involving both neighbours.¹⁷⁹

2.88 One arborist stated that they offer to do a tree amenity evaluation to quantify the tree’s value; without a quantifiable amount, it can be hard for an arborist to explain what the neighbour will lose if they remove or prune a tree.¹⁸⁰

Not following advice and not understanding qualifications

2.89 People do not always rely on expert assistance or advice.¹⁸¹ Where they do, the Commission has been told that the community is unlikely to give much weight to whether or not an arborist is suitably qualified to carry out tree works or assessments.¹⁸²

2.90 Community members do not have a good understanding about the different qualifications and roles of arborists¹⁸³ and information on what level of qualification is advisable for particular tree works may not be easy for the community to find.¹⁸⁴ For example, people may not know the difference between a ‘tree lopper’ and a highly qualified arborist skilled in the assessment and management of trees.¹⁸⁵ A tree lopper may



be more willing to simply remove a tree or indiscriminately cut away branches. On the other hand, a qualified arborist can assess the health of the tree and help people come up with ways to manage any nuisance or risk.¹⁸⁶

2.91 Most arborists are qualified in accordance with the Australian Qualifications Framework (AQF).¹⁸⁷ An AQF Level 3 arborist would hold a Certificate III in arboriculture and have the skills and knowledge to work as an arboricultural tradesperson and provide basic tree care and management. An AQF Level 5 arborist would hold a diploma and be able to work independently as a consultant or in a supervisory role.

2.92 Arboricultural organisations and local councils commonly advise that arborists of minimum AQF Level 3 should be engaged for tree works, such as pruning or lopping.¹⁸⁸ However, if the tree’s health and associated risks need to be assessed, then engaging an arborist with minimum AQF Level 5 qualifications is necessary because these are more complex assessments that ‘require a high level of training, knowledge and experience’.¹⁸⁹

Obtaining advice too late

2.93 Sometimes arborists advise that talking to tree owners and affected neighbours about the history of the tree, amenity value, recreational benefits and environmental benefits (for example, hosting birdlife) may help to dispel misplaced perceptions. However, arborists noted that they tend to be engaged too late and it is harder to quell people’s often misplaced fears about their trees because their views become more and more entrenched and the dispute continues to escalate.¹⁹⁰ In addition, neighbours usually have not taken any steps to resolve the dispute before an arborist is called. Some arborists reported that their appointments with neighbours are usually in the form of ‘whispered conversations’ or ‘secret meetings’.¹⁹¹

Different expectations about living near trees

2.94 People hold different expectations about living near trees and this itself can be a cause of dispute.

2.95 The Commission was told that some people, who may not be physically or financially able to clear their property of leaf litter or prune a tree, may be less tolerant of trees and more likely to become involved in a dispute.¹⁹²

2.96 On the other hand, others may greatly value trees and may seek out leafy and highly vegetated areas to live in. HVP Plantations noted that many of its residential neighbours choose to live near its plantations due to the vegetated green space it provides.¹⁹³ Some local councils with a high level of vegetation and green space also noted that many of their residents choose to live in their areas to be near trees.¹⁹⁴

2.97 Nillumbik Shire Council stated that the Nillumbik community can be divided with respect to the value placed on vegetation—those who want to maintain vegetation and enjoy living in a green wedge¹⁹⁵ versus those who are risk-averse and want vegetation removed to reduce the risk of bushfire or for other reasons.¹⁹⁶ Baw Baw Shire Council also stated that its community can be divided about the value placed on vegetation.¹⁹⁷

The Commission’s conclusion

2.98 Tree disputes in the Victorian community are common. They are driven by factors such as a lack of knowledge about trees, a breakdown in communication between neighbours, different expectations about living near trees, as well people’s different circumstances and a failure to obtain timely professional advice.

2.99 The most common types of tree dispute involve overhanging branches, encroaching roots and concerns about the risks posed by large trees. Tree disputes can encompass a wide range of issues. They can have a negative impact on people’s relationships with their neighbours, may cause them to incur significant costs which are hard to recover, and can take an emotional toll. The nature of tree disputes makes quick resolution desirable. The next chapter considers the limitations of the current law in assisting people to resolve their disputes and the underlying reasons for reform.