Introduction
3.1 This chapter examines the limitations with the way the law currently assists people to resolve their tree disputes. Community responses on this issue are also canvassed.
3.2 Depending on the circumstances of the dispute and the resources available, neighbours can currently take a number of steps to attempt to resolve their tree dispute:
• making an insurance claim
• abatement/’self-help’
• neighbour-led informal resolution
• alternative dispute resolution, or
• court proceedings.
3.3 A detailed discussion of these steps appears in the consultation paper and they are briefly discussed below. Navigating these steps can be confusing as it is difficult to find definitive statements of rights and responsibilities. Inadequacies in the law create confusion, compound community frustrations and prolong disputes.
3.4 The Commission concludes that there is currently no clear, accessible process for resolving tree disputes.
Insurance claims
3.5 One of the first steps an affected neighbour may take when a tree on neighbouring land damages their property is to contact their insurance company.
3.6 Household insurance may cover damage caused by trees. These policies generally cover ‘the cost of rebuilding or repairing your home’ when damage occurs in circumstances that are out of the policy holder’s control, including natural disasters and storms. However, the scope of the cover differs from one insurer to another. Common general exclusions for damage caused by trees include damage caused by tree roots.
3.7 Generally speaking, a householder’s insurance will only cover damage to their property. Where a tree falls across boundary lines and damages a neighbour’s property, the likely course of action is for the affected neighbour to claim on their own insurance.
3.8 Where the tree owner can be shown to be at fault (for example, they had knowledge of the poor condition of the tree), the affected neighbour’s insurance company may seek to recover from the tree owner’s insurance company.
3.9 Insurance cannot, however, prevent damage. An insurance claim is only possible once damage or harm (injury) has occurred. An insurance provider cannot enforce pre-emptive measures such as trimming, pruning or removing a tree to prevent damage.
Abatement/’self-help’
3.10 Abatement is a ‘self-help’ remedy developed under the common law for any type of private nuisance. In the context of tree disputes, it allows neighbours to take matters into their own hands and abate the interference caused by the tree up to boundary lines without entering the tree owner’s land. For example, an affected neighbour may prune overhanging branches up to boundary lines or may install a root barrier.
3.11 The common law allows:
this private and summary method of doing one’s self justice … because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy and cannot wait for the slow progress of the ordinary forms of law.
3.12 This remedy is currently advised and encouraged where appropriate by community resources. It is useful in situations where a part of a tree has encroached over boundary lines but has not caused the level of interference—unreasonable interference—needed to establish nuisance or has not yet caused actual physical damage. The use of abatement may also prevent damage from arising.
3.13 Any encroaching branches or roots that are removed remain the property of the tree owner, and must be returned, in order to avoid liability for the separate common law tort of conversion. An affected neighbour does not need to give notice to the tree owner to abate up to the boundary line, particularly where ‘there is immediate danger to life or health so as to render it unsafe to wait’.
3.14 An affected neighbour must abate cautiously to avoid damage and ensure that they do not trespass or act negligently. If a tree is damaged by the actions of an affected neighbour, they can be found liable for criminal damage.
3.15 The costs of abatement cannot generally be recouped. Abatement may be limited in circumstances where the tree is protected under a planning scheme or other law.
3.16 Abatement by entering the tree owner’s property may only be justified in rare circumstances where ‘there is an immediate danger to life or health so as to render it unsafe to wait’.
It is considered prudent to notify the property owner before entering their land. Abating in this way also means that the affected neighbour will lose their right to claim damages
for the nuisance, because of ‘the degree of self-help and potential damage to the other party involved in going on to the land of the other party, and interfering with it’.
Neighbour-led resolution
3.17 Neighbours may seek to resolve problems relating to trees informally, without the involvement of lawyers or formal dispute resolution.
3.18 Some government and community organisations have published useful resources aimed at helping neighbours resolve their tree dispute. These include the Dispute Settlement Centre of Victoria (DSCV), the Victoria Law Foundation and Fitzroy Legal Service’s Law Handbook. Local council websites and customer service centres often provide a range
of information and links, with significant variation in detail between councils.
3.19 Most emphasise resolving disputes informally wherever possible. These resources are
guides only, providing general information, not legal advice.
3.20 Common themes contained in these information sources include:
• approaching neighbours calmly and respectfully
• explaining concerns clearly and openly
• considering the neighbours’ point of view
• workshopping possible solutions
• seeking professional advice and quotations where necessary, so each party can negotiate from an informed position
• the desirability of reaching a solution, as neighbourhood disputes can easily escalate and have detrimental effects on both parties’ living situations.
3.21 Other points of contact for information include Arboriculture Australia, the Victorian Tree Industry Organisation, individual community legal centres, the Federation of Community Legal Centres, Victoria Legal Aid, the Law Institute of Victoria (LIV) and private lawyers.
3.22 DSCV also provides conflict coaching and dispute resolution advice over the phone, including options, strategies and negotiation techniques to help people resolve their disputes between themselves.
3.23 Neighbours may also contact an arborist to obtain quotes for tree works or to assess the health of the tree. If informal resolution is ineffective, neighbours may elect to engage in alternative dispute resolution or take legal action by going to court.
Alternative dispute resolution
3.24 Alternative dispute resolution (ADR) refers to a decision-making process other than judicial determination (by a court or tribunal), in which an impartial person helps parties resolve their dispute. There are many forms of ADR, ranging from the facilitative and exploratory (mediation), active and advisory (conciliation), through to processes that decide the result (arbitration).
3.25 There are many private ADR practitioners who may be engaged by people in dispute. One way community members can seek out private mediators is through the LIV’s Mediators Directory, which provides details of approved legal practitioners qualified to conduct mediations.
3.26 DSCV offers a free mediation service to the community to assist with a range of disputes including tree disputes.
The role of the Dispute Settlement Centre of Victoria
3.27 DSCV is funded by Government to provide a front-line resolution service offering:
• information and education to help people understand their rights and responsibilities regarding an issue or dispute
• options for further advice and resources to help people resolve the dispute themselves
• a range of dispute resolution services to assist parties.
3.28 DSCV provides a range of dispute resolution services, depending on the nature of the dispute. They include:
• targeted advice
• conflict coaching
• shuttle negotiation
• telephone mediation
• abbreviated mediation with a sole mediator
• a half-day mediation with two mediators.
3.29 People involved in a tree dispute most commonly make contact with DSCV:
• to obtain the help of an impartial third party to make a decision about the dispute or compel a neighbour to take certain action
• to seek information about the law or confirm how the law may apply to their dispute
• to obtain assistance with tree maintenance issues due to age/health (for example, cleaning leaf litter from gutters)
• when there is pre-existing neighbour conflict and the tree dispute is the final straw, or
• when they have exhausted all other steps leading up to mediation or legal action.
3.30 When a person first contacts DSCV, they speak to a Dispute Assessment Officer (DAO) who provides general support and advice on dispute resolution, including:
• listening to the client’s concerns
• helping to clarify the issues
• answering questions
• providing techniques and strategies for resolving the dispute
• referring clients to other specialist services where needed.
3.31 DSCV informs clients that tree disputes are governed by the common law and that it cannot provide legal advice. DSCV focuses on reshaping the conversation and discussing dispute resolution options rather than legal options.
3.32 With the client’s consent, a DAO may also contact the other party to the dispute. Where the other party agrees to participate, the DAO will work to identify the issues in the dispute, suggest options to parties and try to resolve the matter separately with each party over the phone. If this fails, the dispute may be referred to accredited mediators within DSCV.
3.33 If a dispute is assessed as suitable for mediation, it can be scheduled quickly (generally within two weeks of referral) and held at a location suitable to the parties. Mediation is voluntary and proceedings are confidential. The mediator will invite the parties to share their views, explain what has led to the dispute, and how they propose to resolve the issue. Parties may be in the same room, or in separate rooms, with a mediator acting as an intermediary.
3.34 A mediation if successful results in a written agreement. Agreements reached in DSCV mediations are not legally binding. Parties are informed by DSCV that with both parties consent they can present their agreement to a lawyer to render the good faith agreement legally binding.
Court-referred alternative dispute resolution
3.35 The courts may also employ court-ordered ADR processes (with or without the consent of the parties) to help parties resolve their disputes without a formal hearing.For example, the Civil Claims Program in the Magistrates’ Court allows the Court to refer certain matters to DSCV for compulsory mediation.After successful mediation it communicates the outcome back to the court or tribunal. The mediated agreements generally take the form of consent orders, terms of settlement, or the filing of a notice of discontinuance from court or tribunal proceedings.
3.36 DSCV has also recently partnered with the Victorian Civil and Administrative Tribunal (VCAT) to administer Fast Track Mediation and Hearing (FTMH) at VCAT. FTMH aims to resolve disputes at VCAT as quickly as possible through mediation or to progress to a hearing on the same day if required.
Court proceedings
3.37 Parties in a tree dispute may also initiate legal proceedings in court. As described in Chapter 2, this does not occur often.
3.38 The resolution of tree disputes in Victoria is currently based on the law of torts, which has largely been developed through judge-made case law (the ‘common law’). There is no legislation specific to the process for resolving private tree disputes between neighbours in Victoria.
3.39 A tort is a ‘civil wrong’ that confers civil liability on the wrongdoer. Torts cover a variety of acts or omissions that infringe on a person’s ‘fundamental liberties, such as personal liberty, and fundamental rights, such as property rights, and provide protection from interferences’.
3.40 If one party decides to take their dispute to court, it will usually be heard in the Magistrates’ Court of Victoria. Some cases involving large claims will be heard in the County Court of Victoria, or, in cases involving very large or complex claims, in the Supreme Court of Victoria.
3.41 In order to bring a tree dispute to court, neighbours will usually have to rely on one or more of the torts of nuisance, negligence and trespass. Each of these torts is outlined briefly in Table 1 below.
Table 1: Overview of relevant torts
|
Tort
|
Circumstances that give rise to the tort
|
|
Nuisance
|
Where there is unreasonable interference with the use and enjoyment of land (which includes damage to property)
|
|
Negligence
|
Where damage, loss or injury results from a negligent act
|
|
Trespass
|
Where there is an unauthorised entry to land
|
Nuisance
3.42 The tort (civil wrong) of nuisance can be classified as a public nuisance, or a private nuisance. Neighbours in tree disputes will rely on private nuisance (nuisance).
3.43 In legal terms, a nuisance relates to an act or omission that causes substantial and unreasonable interference with the affected neighbour’s land or their enjoyment of land. It is ‘a tort directed against the plaintiff’s enjoyment of their rights over the land’ and is inextricably linked to a person’s proprietary interests over the land they occupy.
3.44 In the context of tree disputes, nuisance can cover situations where a tree encroaches on neighbouring land, causes physical damage to neighbouring land, or interferes with the comfortable and convenient enjoyment’ of a person’s land.
3.45 Nuisance claims in tree disputes are often a balancing exercise between the tree owner’s right to enjoy and use their land in any lawful manner that they see fit, and the affected neighbour’s right to use and enjoy their land without unreasonable interference.
3.46 In order for an affected neighbour to take legal action for unreasonable interference with the use and enjoyment of their land, they must be in actual and exclusive possession of the land.
3.47 Unreasonable interference with the use and enjoyment of land has been described as occurring when substantial and unreasonable ‘annoyance, or discomfort’ is caused. This is judged against the common law standard of a ‘reasonable user’, which requires that any minor or trifling interference will be considered part of the ordinary neighbourly exchange of ‘give and take, live and let live’.
3.48 Barker et al explain this as follows:
when people live in close proximity to one another they have to be prepared, to some extent, to allow others to do things that annoy them at times when they would prefer to be left in peace and quiet if they, in turn, want to be able to behave in a way that might annoy their neighbours and at a time when their neighbours would prefer they did not.
3.49 Therefore, liability will only be imposed ‘where the harm or risk to one is greater than [what] one ought to be required to bear under the circumstances’. In making this determination the court will balance a number of factors:
• the character of the neighbourhood in which the interference occurs
• the extent of the interference
• the sensitivity of the affected neighbour
• whether an intention to harm exists.
3.50 Importantly, there is no need to prove that actual physical damage has resulted from a nuisance where the dispute concerns comfort and amenities. However, mere encroachment of overhanging branches is unlikely to constitute nuisance unless some sort of ‘special damage’ is proven to have been ‘suffered by the neighbour as a result of the encroachment’.
3.51 Where actual physical damage has resulted, such as a crack in concrete foundations, or damage to a dwelling, then the presence of damage makes the interference unreasonable. Because damage can be objectively assessed, the relative weight of factors such as the characteristics of the neighbourhood, the extent of the interference, sensitivity and improper motive are not as relevant.
Liability
3.52 Under a common law action in nuisance, anyone who created the nuisance can be found liable. That is, there is no need for the defendant to have any interest in the land. This means that private nuisances can be created not only by landowners and tenants, but also by independent contractors undertaking work on the land. However, generally speaking, ‘most private nuisances are created by private landowners’.
3.53 The tree owner must be at ‘fault’ for a nuisance claim. This will depend on whether the tree owner has created, adopted or continued the nuisance. A tree owner can ‘create’ a nuisance by ‘deliberately or recklessly’ using their land in a way that will cause harm to their neighbour, or where they knew or ought to have known that the nuisance was reasonably foreseeable.
3.54 A tree owner might create a nuisance to their neighbour’s land by carrying out works to their own tree, for example ‘by taking action which adversely affects the health of their tree or its structural stability’ such as by ‘allowing a tree to become unsafe or unsound so that it or parts of it, fall onto the neighbour’s land’.
3.55 A tree owner may also be considered liable where a third party (including a tenant) creates a nuisance if they authorised them to carry out activities that would naturally and necessarily result in nuisance.
3.56 A tree owner will have ‘adopted’ the nuisance caused by the tree where they make use of it, such as by using it for privacy or noise reduction. A tree owner will be considered to have ‘continued’ the nuisance where they fail to stop the nuisance being caused by the tree within a reasonable time.
3.57 A tree owner will be liable where they knew or ought to have known of the nuisance and did not take reasonable steps to mitigate or end the foreseeable interference. The court will weigh the likely cost and inconvenience of mitigating or removing the interference against any damage or discomfort that the affected neighbour may experience.
Defences
3.58 Where a nuisance can be shown, a tree owner may not be liable if they have a legal defence. Some common defences are:
• The tree owner had statutory authority for their action—where an action is authorised by an Act and the nuisance is an inevitable consequence, it is not unlawful.
• The nuisance was consented to—a tree owner may rely on the express or implied consent of an affected neighbour as a defence. For example, if a tree that is causing a nuisance is maintained for an agreed common benefit, such as providing shade, then the affected neighbour may forego any right against the tree owner because of the agreement reached.
• The affected neighbour contributed to the problem—the tree owner’s liability may be reduced where the affected neighbour is found to have acted without reasonable care for their own property, contributing to the resulting damage for which they seek relief.
Remedies
3.59 A person must commence legal action within the time limits set out in the Limitations of Actions Act 1958 (Vic). In the case of nuisance, an affected neighbour must generally bring legal action for nuisance within six years of the date the nuisance occurred.
3.60 There are three remedies available for nuisance: abatement, injunction and damages. Abatement is often exercised before an affected neighbour pursues an action for nuisance in court. Where the affected neighbour takes the matter to court, they may seek an injunction or damages.
3.61 An injunction is a court order restraining the tree owner from performing or continuing
the interference. It is the main remedy awarded to an affected neighbour in an action
for nuisance. It is most suited to types of interference which are recurrent and infringe on the affected neighbour’s right to use and enjoy their land, as opposed to those causing damage to property.
3.62 An injunction may be granted to prevent future nuisance even though the nuisance does not exist at the time the injunction is sought. The threshold for this type of injunction is high and requires ‘proof that the apprehended damage … is imminent or likely to occur in the near future and … that the damage [will be] very substantial or almost irreparable’.
3.63 A court may also make an award of damages to an affected neighbour, which is monetary compensation for any material loss or damage that has already occurred as a reasonably foreseeable consequence of the nuisance. Damages may be sought for material loss or damage to land, possessions, or for the loss of profits which would have otherwise been earned from use of the land. Damages can be awarded alone or in combination with an injunction.
Negligence
3.64 A tree owner may be negligent where they fail to exercise reasonable care in relation to their tree. Negligence occurs where the tree owner breaches the duty of care they owe
to the affected neighbour, causing the affected neighbour to suffer a reasonably foreseeable harm.
3.65 Negligence is largely based on the common law but it has also undergone statutory reform in the Wrongs Act 1958 (Vic). Common law principles and elements relating to negligence are now restated in, clarified by or altered by statute.
3.66 In order to establish negligence, the affected neighbour must prove all of the following:
• that the tree owner owed them a duty of care—this duty of care is fulfilled by adhering to a standard of care that a ‘reasonable person of ordinary prudence’ would adhere to in order to avoid ‘unreasonable risk or danger to others’. It is well established that neighbours owe each other this duty of care.
• that the tree owner breached that duty—a person may breach a duty of care through a positive act or omission that falls short of the standard of care, unless they have taken precautions to safeguard against foreseeable risks that are ‘not insignificant’.
• that the affected neighbour suffered harm—section 43 of the Wrongs Act 1958 (Vic) defines harm broadly as ‘any kind of harm’, which includes personal injury or death; and damage to property and economic loss.
• that the harm was caused by the breach (causation) and that it was not too remote. To determine causation, the court will use a two-step approach that involves determining first, factual causation and second, the scope of liability. Factual causation obliges the court to ask whether the affected neighbour would still have suffered their loss but for the negligence of the tree owner. If factual causation is established, the court must then consider the scope of liability. This involves a determination about ‘whether or not to attribute the harm suffered to the negligence act for the purposes of deciding who, if anyone, is liable to pay compensation’. This test ‘involves policy considerations and is value laden, and hence takes account of social, moral and economic factors’.
3.67 To determine whether the harm suffered was not too remote, the court will consider whether the harm is a reasonably foreseeable consequence of the negligent conduct. There must have been a real (not far-fetched) risk that the negligent conduct would cause the type of harm in question.
3.68 In tree disputes where damage to property is concerned, negligence is often submitted as an alternative cause of action to nuisance. Where personal injury is alleged in a tree dispute, it is more likely that negligence will be exclusively relied on.
Defences
3.69 There are four defences available against claims of negligence. These are:
• Voluntary assumption of risk—a negligence claim may be defeated where the tree owner can prove that the affected neighbour fully understood the extent of the risk and freely chose to accept or ignore it, thus voluntarily assuming the risk. Where the risk is obvious, the court will presume the affected neighbour was aware of the risk.
• Statutory defences—some defences are included in the Wrongs Act 1958 (Vic). These include the statutory defences relating to ‘good Samaritans’ and volunteers.
• Illegality—the fact that a person was engaged in an illegal activity at the time they suffered harm does not necessarily provide an automatic defence for the negligent party. A duty of care may still be owed to a person engaged in an illegal activity in certain circumstances. The court may take into consideration whether or not the person bringing the claim was engaged in illegal activity and reduce an award of damages to reflect this engagement.
• Contributory negligence—where the affected neighbour fails to take reasonable care for their own safety, and this failure contributes to their injury, the court may find contributory negligence.
Remedies
3.70 Negligence claims must be brought before a court within three years of the harm being discoverable (that is, it is known about or could be identified), or within 12 years of the date the negligent act occurred, whichever occurs first. For negligence resulting in damage to property, a person must bring legal action within six years of the date the negligent act occurred.
3.71 The main remedy for negligence is financial compensation (damages). The Wrongs Act 1958 (Vic) sets out various thresholds of harm and caps for monetary amounts that must be applied when awarding damages. Damages are most appropriate to remedy past, one-off losses such as personal injury, or damage to property. An injunction is usually ineffective in these situations, as the risk of these events and losses recurring is likely to be low.For example, where an old, decaying tree falls and causes damage to property or injury to a person on neighbouring land, it is unlikely that this event will recur.
Trespass
3.72 Trespass to land (trespass) is unauthorised entry onto land. Legal action can be taken against the person entering without authority.
3.73 In the context of tree disputes, trespass may be claimed by the tree owner for unpermitted entry to land by the affected neighbour in two situations. First, where the affected neighbour abates (cuts back overhanging vegetation) beyond their boundary line from their own land and onto the tree owner’s land. Secondly, where the affected neighbour physically enters the tree owner’s land without permission.
3.74 Land relates not only to ‘the surface of any ground, soil or earth but also any buildings or structures that might be affixed to it … both things growing on the surface (such as trees and grass) and minerals under the surface’.
3.75 Every unpermitted entry onto land, no matter how minor, is considered a trespass, even if the trespass does not cause any material damage.
3.76 The owner of land affected must be in actual, exclusive possession of the land to bring an action for trespass. The trespasser must intend the trespass; that is, they ‘deliberately and wilfully’ interfered with the tree owner’s exclusive possession.
3.77 The most obvious form of trespass is entering land without permission. Trespass may also occur when, for example, objects are placed over boundary lines and left on the land. As Justice Bollen explained in the South Australian case of Gazzard v Hutchesson, trespass can be found without entry onto another’s land when an affected neighbour uses a stepladder to lean over a boundary line and cut their neighbour’s roses. The trespass will continue for as long as the intrusion remains.
3.78 The encroachment of roots or branches over boundary lines, however, will not constitute trespass because it is unintended. An action in nuisance would be better suited to these situations.
Defences
3.79 An affected neighbour may rely on the following defences against trespass:
• Necessity—a belief that the trespass was reasonably necessary to preserve life or protect property from real and imminent harm.
• Consent—an affected neighbour will not be liable for trespass where they had consent to act in the way that they did.
3.80 Mistake which results in trespass, however reasonable, will not be a defence.
Remedies
3.81A person must bring legal action within six years of the date the trespass occurred.
3.82 A tree owner may seek an injunction or damages as a remedy for trespass. An injunction may be sought to restrain a person from continuing to trespass.
3.83 Damages may be sought even if the trespass does not cause any material damage to the land or property on the land. This is because:
the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of [their] land.
3.84 Where no damage results, the tree owner may be awarded a small (nominal) amount of damages.
3.85 Exemplary or aggravated damages may be awarded where significant disrespect is shown for the tree owner’s rights—for example, by cutting down a neighbour’s tree when they are absent from their land, without informing them or allowing them a chance to have their say about what should happen to their tree—and the court considers that punishment is warranted.
Other laws affecting tree management
3.86 In Victoria, the management and removal of trees on private land can be affected by other legislation. These laws may stipulate in what circumstances and in accordance with what process works may be carried out on specified trees or on specified private land in Victoria.
3.87 Private tree disputes may intersect with the following legislation:
• the Planning and Environment Act 1987 (Vic)
• local laws made pursuant to the Local Government Act 1989 (Vic)
• the Heritage Act 2017 (Vic)
• the Aboriginal Heritage Act 2006 (Vic)
• the Fences Act 1968 (Vic)
• the Catchment and Land Protection Act 1994 (Vic)
• the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
3.88 Other Acts also relate to the management of vegetation for fire prevention; to minimise interference with powerlines; and to protect public health and wellbeing, and the environment. See Chapter 10.
Community responses—the current law
3.89 Only a small number of people reporting a tree dispute to the Commission stated that they had been able to resolve it.
3.90 The most common ways that neighbours tried to resolve their tree dispute were by exercising the self-help right to abatement or by attempting neighbour-led dispute resolution. A smaller number of people reported that they contacted DSCV for varying degrees of assistance.
3.91 The three main reasons given by community members for why neighbours may not be successful in resolving their tree dispute were:
• a lack of clarity about the law and information sources
• an inadequate balance between the rights of the tree owner and the affected neighbour
• the limited avenues of recourse available.
Lack of clarity
3.92 Many community responses identified that the law lacks clarity, particularly in terms of making it easy for neighbours to apply legal rules to their tree dispute.
3.93 The Commission has been told that the available common law causes of action are hard to navigate and are complex, and the rights of neighbours at common law are unclear. This means that neighbours are unable to point to any clear legal duty to encourage the resolution of a dispute or even encourage their neighbour to engage with them early on. This is exacerbated when the neighbour is uncooperative or hostile.
3.94 The Law Institute of Victoria stated:
Disputes about trees are governed by the common law torts of negligence and nuisance, which are inherently complex. Parties may view the current law as complex, and may not have a clear understanding of their rights and duties under the common law.
3.95 DSCV suggested that there are a range of reasons for the lower rates of dispute resolution outcomes for tree matters. Some of those relate to a lack of clarity in the law. It suggested that many people who contact the centre incorrectly expect a local council or government agency to enforce an outcome that is inconsistent with case law. Other reasons relate to unclear rights and obligations. DSCV suggested that:
[DSCV staff find it] difficult to explain exactly what customers can and can’t do without going to Court to have a Magistrate decide. For instance, for a customer whose property
is threatened or damaged by tree roots, it is difficult to actually do anything from a practical stand-point; they can cut the roots back to the fenceline, but this will almost certainly result in damage to the tree, which could in turn destabilise it and leave them liable for property damage.
3.96 Whilst it is not a function of DSCV to provide legal advice to its clients, DSCV also observes that many tree issues that people decide to contact DSCV about ‘would not meet the standard for private nuisance’. It suggested that for these low level dispute matters there is no clear pathway for resolution and without this ‘clients may become disillusioned and withdraw from contact with external agencies’.
3.97 HVP Plantations stated that it is difficult to know how to interpret and apply the current law to a tree dispute without a determination by a court. It observed that the common law with respect to tree disputes has not been as extensively developed as other matters that involve nuisance, negligence or trespass.
3.98 HVP Plantations further noted available case law focuses mainly on urban trees in close settings, which cannot be easily applied to rural settings:
the current state of the law can only be estimated by extrapolation from cases that have considered boundary trees in urban settings. These cases tend not to provide a useful consideration of the issues in a rural setting.
3.99 Arborist Ben Kenyon further identified that the law lacks additional clarity in situations where neighbours experience allergies due to neighbouring trees.
Other laws add complexity
3.100 It was also identified that the additional layers of planning, local laws and other statutes add complexity and confusion to the resolution of these disputes. Arborist Dr Karen Smith stated that even if the law was considered to be satisfactory, it may be confusing to navigate because ‘there are so many different laws relevant to tree disputes, and also different codes of practices. And they are all in different places.’
3.101 As one survey respondent noted, ‘It is not always obvious to neighbours when a tree enjoys “extra” protective status, such as heritage status as deemed by council or other such bodies.’ It was further suggested:
It is not easy to understand the ‘rights’ of both parties. Also the law or laws governing this area are spread over what seems to be a number of acts … understanding the implications of such laws then becomes quite cumbersome.
Existing remedies are limited in value
3.102 An overwhelming majority of responses suggested that people had not been successful in resolving their tree dispute regardless of what form of informal resolution they attempted. Despite this, the majority of people reported that they did not take legal action, even after exhausting all other options.
3.103 Some stated that they had only achieved partial resolution, such as when a tree owner agreed to remove the tree but refused to pay the cost of repairs. Others explained that although their tree dispute had been resolved, this had not occurred because of existing law and process. Instead, the dispute had ended because they moved away and were no longer affected or the risk they perceived (for example, a falling branch or tree) had eventuated, ending the immediate tension.
3.104 A large number of responses reported that existing remedies were limited in their application and often inaccessible. For example, one submission noted in relation to insurance that ‘not everybody has insurance cover’ and some people, for example pensioners, ‘are unable to afford insurance’…’I am a pensioner and while I can manage to scrape together enough to pay an insurance premium, I cannot possibly afford the risky business of mounting a legal case’.
Abatement is sometimes impractical or inappropriate
3.105 The legal requirement to return abated branches to the tree owner was identified as a confusing and unfair aspect of the law. For example, one person expressed frustration that their neighbours had ‘dumped the pruned branches’ onto their land ‘without notice or prior discussion’. Some suggested that this requirement in and of itself may have the potential to cause or exacerbate a dispute with their neighbour about who is responsible for disposing of the branches.
3.106 Some submissions raised concerns that the affected neighbour is entirely responsible for abating. As a result they may incur a substantial debt (for example, arborist’s fees) with no physical assistance or monetary contribution required at law from the tree owner. This may be particularly problematic for people who cannot physically or financially afford to carry out or arrange tree works.
3.107 Another criticism is that abatement is not always practical such as where the encroaching tree is very large or where overhanging branches are many metres above the ground, possibly requiring a cherry picker. Similarly, abatement may be inappropriate to use in confined spaces and narrow side streets.
3.108 The cutting of encroaching roots or pruning of overhanging branches may also require the expertise of an arborist, which can be a significant cost that the affected neighbour may be unable to fund and has no right to recoup from the tree owner.
3.109 Some arborists noted that when they are engaged by an affected neighbour to perform an assessment of a neighbouring tree, they are often unable to complete a thorough assessment because they are prevented from viewing the tree from all angles without permission to enter the tree owner’s land.
Disconnect with arboricultural standards
3.110 Some arborists also identified that the common law governing the resolution of tree disputes is sometimes at odds with arboricultural science and the professional standards that arborists are trained to follow.
3.111 Dr Gregory Moore OAM noted:
Matters that arise can be many and varied and the system that deals with disputes seems to be very complex and often appears to display a lack of knowledge of the biology and arboriculture of urban trees.
3.112 An example commonly provided by arborists was the misalignment between the common law right to abate and the two main Australian Standards that arborists are trained to follow when pruning branches and cutting roots. These two standards are the AS 4373-2007—Pruning of Amenity Trees and the AS 4970-2009—Protection of Trees on Development Sites.
3.113 An arborist applying AS 4373-2007—Pruning of Amenity Trees (the Australian Standard) may determine that, in order to maintain the tree’s health and structural integrity, the branches should be pruned to the trunk of the tree, which could be located across boundary lines. If done without the consent of the tree owner, this would likely constitute a trespass.
3.114 Alternatively, an arborist may determine that applying the Australian Standard would require that overhanging branches should only be lightly pruned to maintain the health and structural integrity of the tree. Some arborists reported that clients may prefer their arborist to perform tree works up to the boundary line regardless of what the Australian Standard may dictate in their situation. Dr Gregory Moore OAM also stated that some arborists with less training and experience may be more likely to agree to their client’s wishes.
3.115 Arborists reported feeling concerned about the legal repercussions of causing damage to a tree by not following the Australian Standard and expressed confusion about balancing their obligations in this regard.
Limitations of alternative dispute resolution
3.116 Data provided by DSCV and responses from the community suggest that mediation will not always be effective in tree disputes. From December 2011 to May 2017 DSCV reports that in 11.3 per cent of tree-related enquiries, it invited parties to participate in mediation. However, mediation was only conducted in 1.2 per cent of these matters. DSCV suggests that 5.3 per cent of tree related enquiries resulted in a dispute resolution outcome – either through mediation or where DSCV facilitated an outcome for parties directly, or provided advice to enable parties to resolve their matter. DSCV has advised that this rate differs from the average dispute resolution outcome rate for other matters which is much higher at 15–16 per cent. This information indicates that tree enquiries are less likely than other matters to progress to a dispute resolution outcome.
3.117 Ben Kenyon also noted that ‘[m]ost situations rarely end with mediation’ and that if they remain unresolved then the disputes are likely to ‘head straight through to court’.
3.118 Mediation is a voluntary process. Nearly all community members who told the Commission that they contacted DSCV for help with their tree dispute reported that mediation could not be arranged because the other party was unresponsive or unwilling. One person explained:
I was hoping to initiate mediation through the [Dispute Settlement Centre of Victoria], so I provided them with my neighbours’ details (name and address). The Centre sent correspondence to my neighbour, but my neighbour refused to attend and therefore we did not have a meeting to negotiate an outcome. The [Dispute Settlement Centre of Victoria] told me that attendance is purely on a voluntary basis and they could not force my neighbour to attend if [they] didn’t want.
3.119 A further limitation may arise when a neighbour seeking to mediate cannot locate the tree owner or obtain their contact details. This can happen where a holiday home is occupied only periodically.
3.120 The Law Institute of Victoria noted that even if neighbours participate in mediation and agree on a form of resolution, the outcomes or agreements reached may not be easily enforceable if the neighbour later changes their mind or otherwise fails to comply with the agreement.
3.121 Private mediation is also available for neighbours willing to participate in this process but the cost of private mediation may be prohibitive for many community members. One person suggested that the total cost of using private mediation to resolve their tree dispute was almost $10,000 for one day, and that this excluded the cost of preparation. The mediation session did not result in a successful outcome because the other party was unwilling to come to an agreement.
3.122 DSCV has suggested that the low resolution rates for tree disputes can be attributed to factors, including:
• low awareness in the community of rights/obligations
• incorrect assumptions or expectations at point of contact
• lack of a defined process for resolving disputes
• unclear rights and obligations
• more frequent low-level disputes
• minimal scope for negotiation
• considerable barriers to resolving the dispute through court.
3.123 DSCV observed that, unlike fencing disputes involving shared property, in a tree dispute the primary cost associated with a tree typically falls to one party. In tree disputes ‘neighbours are not explicitly required to negotiate by legislation or case law and thus many self-select out of the DSCV mediation process.’
Litigation is difficult and costly
3.124 Nearly all people involved in tree disputes who made submissions or consulted with the Commission reported that they had not taken legal action. Over 90 per cent of survey respondents also indicated that they had not taken legal action. Only one person had commenced legal action and taken their matter to court regarding damage caused to a tree that they owned. This person stated that ‘after substantial costs were incurred and multiple delay tactics by the neighbours, an agreement was negotiated, largely in relation to the damaged fence’. They had received legal advice that ‘no action could be taken in relation to the damage caused to the tree because it had not been killed’.
3.125 Community responses suggest that legal action is very rarely pursued for a number of reasons, the most significant of which is the prohibitive cost. Pointon Partners explained:
Occasionally, matters do proceed to litigation in either the Magistrates’ Court or sometimes the County Court. However, in my experience a great number of matters are abandoned, unresolved, because parties do not have the resources to proceed to Court.
3.126 Pointon Partners suggested that ‘Simple matters can cost in the order of $30,000 to bring to trial. More complicated matters can, and do, cost in excess of $100,000.’ Costs may be incurred during the course of obtaining legal advice, paying court filing fees and the additional cost of retaining legal counsel in higher courts. These costs were described as ‘a significant impediment to parties wishing to litigate’. One person suggested that, as a pensioner, he could not afford to go to court and stated that ‘most pensioners cannot’.
3.127 Community Legal Centres, which offer free legal assistance to community members, may be limited in the legal assistance they can provide for tree dispute matters. As Barwon Community Legal Service noted:
Refusal to participate or unsuccessful mediation with neighbours, in the current legal framework leaves clients with only one option, initiating Court proceedings. Our service does not have capacity to assist clients taking these matters to Court. As a result, our service is left to refer clients to potentially expensive litigation lawyers to engage in a lengthy Court action for nuisance while the health of their trees continues to deteriorate or further damage is caused to adjoining fences or other structures.
3.128 The LIV also noted that the ‘time consuming nature of litigation may discourage parties from seeking formal resolution’. DSCV noted that Magistrates’ Court action is not generally considered by parties because ‘the process takes a long time and can be costly, particularly in relation to the amounts that are typically in dispute. As such many clients simply “give up” and decide not to bother taking the matter further.’
3.129 Some people reported that another reason why they did not pursue legal action was because they did not want to put further strain on their relationship with their neighbour.
3.130 It was also lamented that the option of taking legal action is only available after damage or harm has occurred. Where an affected neighbour is fearful or anxious about a large tree falling on their house, they may not be able to prove nuisance or negligence without any actual interference or damage having occurred. In this sense, the law was described as reactionary. One person stated:
The laws are not very responsive to immediate or significant hazards. The system requires a lengthy and tedious process to get results at the affected person’s expense both financially/emotionally.
3.131 The City of Boroondara stated in summary, ‘The current regime in Victoria is complicated, costly and overly legalistic.’
Low awareness and lack of information
3.132 Community members may not know where to find the law, how to interpret it and who to ask for assistance. DSCV observed that many people contact the centre ‘purely to enquire about their rights and obligations with regards to tree issues’. It observed that there is a low level of awareness in the community about rights and obligations.
3.133 Community responses suggest that people seeking information and assistance with their tree dispute are often referred to multiple agencies and find not getting clear advice frustrating. People sometimes find themselves caught in a cycle of referrals.
3.134 Responses lamented a lack of a central resource. Arborist Dr Karen Smith stated that:
[there] needs to be a centralised place for people to go for information regarding trees and the law before they get into disputes … As well as a place to access information about their rights
3.135 Most people approach their local council for information about what to do in a tree dispute. People often mistakenly believe their local council will be able to help with their tree dispute because councils manage vegetation through local laws or planning schemes or because they handle other types of nuisance or public health and safety complaints.
3.136 The Commission undertook consultations with some local councils. All confirmed that they view tree disputes as private matters between residents and will not generally become involved with these types of dispute unless the tree is regulated pursuant to a local law or planning scheme. Councils generally encourage people to resolve their dispute informally by communicating with their neighbours or refer them to the free mediation services provided by DSCV.
3.137 Local councils may also take additional, ad hoc steps to help residents resolve their tree dispute. For example, Baw Baw Shire Council stated that it may examine an arborist’s report regarding certain claims and if the interference is substantial, it might try to assist or support the resident by informing them about the current health of the tree or its
environmental and amenity benefits. It may also suggest other ways to resolve the matter (for example, moving a sandpit instead of removing the branch that overhangs it).
3.138 The City of Port Phillip also stated that it may advise residents to seek independent arboricultural advice. Port Phillip stated it may become more involved in a tree dispute where damage is caused by a third party to a resident’s tree (for example, a plumber who may be damaging the roots of a tree).
3.139 DSCV reported that in some instances, they may need to refer clients back to the referring local council when it is discovered that the tree subject to the dispute is protected by a local law or planning scheme. Moreover, although DSCV reported that it received referrals from private arborists from time to time, an overwhelming majority of private arborists at ArborCamp2018 advised they had not heard of DSCV.
3.140 People seeking information and assistance may also contact private arborists and community legal centres. A small number of people also reported that they contacted real estate agents or property managers (in the case of tenants) or water utility companies (in the case of roots blocking drains and sewerage), insurance companies, and even the Environmental Protection Agency. These people reported that they were advised that they could not be assisted with this type of dispute or were referred elsewhere. People also contacted private lawyers for legal advice but this was less common, most likely due to expense.
3.141 One affected neighbour recounted their experience of trying to get help with their tree dispute and being referred to a number of organisations. This person was concerned about overhanging gum trees and the noise of gumnuts falling on their garage roof. They contacted the local council first. The local council advised them that it could not help and referred them to DSCV. DSCV advised that the tree owner would need to participate in mediation voluntarily, which the affected neighbour determined was not practicable because of a hostile relationship. The affected neighbour also contacted the Environmental Protection Agency (EPA). The EPA advised them that noise complaints fell within the remit of local council and referred them back to their local council. The local council reiterated that it was unable to assist with private tree disputes and referred the person to DSCV a second time.
The balance of competing rights
Few responsibilities for tree owners
3.142 Many people viewed the law as ‘unfair’ or ‘one-sided’ because they perceive an inadequate balance between the right of a tree owner to use and enjoy their land in any lawful manner and the affected neighbour’s right to use and enjoy their land without unreasonable interference.
3.143 A common theme in community responses was that even though the tree is the property of the owner of the land on which is grows, the affected neighbour is left with the responsibility of managing the growth and effects of that tree as it encroaches over the fence.
3.144 Many affected neighbours were concerned that the law appears to favour the tree owner because it does not put any obligations on the owner to maintain their tree. In doing so, it appears to allow the owner to ignore or refuse even reasonable requests or genuine efforts to resolve the dispute by their neighbour. In addition, concern was expressed that an affected neighbour cannot recoup any costs associated with abatement, such as the cost of engaging an arborist to prune branches.
3.145 Community responses noted:
Your tree, your responsibility.
The law currently allows me to cut back overhanging tree branches and return them to my neighbour. This is an expensive ongoing issue that is hard work for me as I do not hire professional companies to do the job for me. I undertake the work to try and reduce the cost … I do not own the trees therefore why should I have to take responsibility to maintain them. Trees grow and spread, it should be the owner’s responsibility to maintain them.
… [the law is] totally in favour of the person who owns the tree and they are the ones causing the trouble it is very unfair, I have done nothing to cause the situation but its left all to me to deal with the situation, as the laws are ridiculous. The current laws are not fair it should be the person who owns the tree or is in their property to take care of them when they are impeding onto someone else’s property. … [T]he system as it is does not work at all and treats the [affected neighbour] as though they are the ones at fault and leaves it up to them which is unfair, people have illnesses and financial hardships they should not be expected to clear their neighbours trees.
The current law is very unfair. It is one-sided It will cost over $2,000 dollars to have it cut back to the fence line which won’t even resolve the issues. It is their tree it should be their responsibility to keep it within their property. We would not be able to build a 4 story property on any part of our land but they can have a tree that high and also with branches and roots coming onto our property and we have no say about it.
It is hard to comprehend that we have no rights other than requesting empathy from the neighbour who unfortunately shows no willingness to remove the trees that will have foreseeable negative impact on our agricultural business ... It is bordering on ridiculousness that currently the affected neighbour has to carry the costs for someone else’s encroaching trees and even return the branches to the neighbour!
There are no real sanctions—the rights of tree owners are paramount and the rights of those who suffer from neighbour’s trees are almost non-existent. The onus and huge cost of removing overhanging branches and unwanted roots is on the victim, and not the tree owning perpetrator.
The benefits of trees
3.146 In Chapter 2 the Commission identified that the community is becoming increasingly aware of the importance of vegetation and the need to retain it. Disputes also arise in the community about the removal of vegetation from neighbouring land. In some local government areas it was suggested that these enquiries equate to half of the enquiries received about trees on private land.
3.147 One arborist also expressed the view that it was unfair that new owners have full authority over any tree on their land, especially where the tree is decades-or centuries-old and could be considered to be a community asset.
3.148 ENSPEC noted that ‘any reform needs to provide a balance between genuine harm, or risk thereof, and the unreasonable expectations of some in the community, such as often occurs with complaints about falling leaves, or the propensity to attribute causation to trees without proof for phenomena [such as] soil subsidence and blocked pipes’.
3.149 In addition and as outlined above, the main remedies for tree disputes are court orders for an injunction and/or damages. These tortious remedies ‘aim to rectify specific personal losses, but do not address the interests of the public at large in the aesthetic, historical, cultural or environmental values associated with trees’. This may be considered at odds with an increasing awareness about and emphasis on the importance of vegetation, the need to retain the urban forest and to improve the liveability of urban spaces.
Rural and urban contexts
3.150 HVP Plantations identified that common law principles in nuisance and negligence are not easily applied to tree issues in rural areas where there may be many trees on extensive boundaries. It was suggested that it is difficult in practice for rural landowners to inspect trees to protect neighbours from harm in the context of negligence: ‘Regular inspection of such trees is mostly impractical and a tree which is “defective” is also likely to be a tree with significant habitat value which is valued by the community.’
3.151 HVP also identified that nuisance arising from damage to property by falling trees or branches is almost inevitable in rural areas. Abating large and numerous trees to address this issue would ‘not be a desirable outcome’. It was suggested that ‘most people would prefer that the objective of total safety from falling trees and branches be compromised to maintain the environmental and amenity value of trees in the landscape’. A distinction was drawn where there is a threat of harm to people caused by a particular tree and action is therefore required.
The Commission’s conclusion
3.152 The Commission is of the view that there is currently no clear process that the community can easily follow to resolve tree disputes. It is hard to find definitive legal statements about the rights of parties to disputes and navigating the current law is difficult. There is also a lack of centrally available community information about how to resolve these disputes.
3.153 Court proceedings are prohibitively expensive and remedies provide only limited recourse. Some remedies are reactive only and do not allow much scope for a person to take action to prevent damage or harm, while others do not take into account the broader benefits that trees provide to the community. Some remedies are outdated and can further inflame disputes—for example, the requirement to return abated branches to the tree owner.
2. The scope of the neighbourhood tree dispute problem