Neighbourhood Tree Disputes: Consultation Paper

1. Defining neighbourhood tree disputes

The issue

1.1 Many people have strong and valuable relationships with their neighbours. Living near neighbours can be beneficial, and can allow for sharing of resources, keeping an eye out for one another’s safety and wellbeing, and creating a sense of community. However, people living near each other can be affected by each other’s decisions and property.

1.2 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.^[1] Particular trees may be valued for the privacy they provide, or for their noise-reducing qualities. Properties in leafy suburbs have stronger property values than those without trees.

1.3 Sometimes, however, trees on private land and the way they are (or are not) maintained can cause disturbance to neighbours’ use and enjoyment of their own land. Neighbours need not directly interact with one another to have an impact on each other’s lives.

1.4 Common issues that may lead to disputes between neighbours about trees include:

• branches hanging over boundary lines

• roots causing damage to foundations, drainage and sewer pipelines

• the spread of weeds and creeping plants

• leaf litter causing damage or creating hazards (eg slippery pathways or clogged gutters)

• unsafe trees and branches creating hazards (eg poisonous fruit or leaves, or insecure branches)

• trees impeding a view and/or blocking sunlight, and/or affecting the neighbour’s ability to use solar panels.^[2]

1.5 These disputes can be generally characterised as a competition of rights, namely the tree owner’s right to use and enjoy the land in any lawful manner they see fit, and the affected neighbour’s right to enjoy their land without unreasonable interference.

1.6 Tree disputes, whether based on minor impositions, such as trees dropping leaf litter or branches beginning to grow over a property border, or more significant ones, such as damage to property or harm to people, can inspire passionate and uncompromising reactions.

1.7 The fact that tree disputes may affect people’s property rights, their home life and their interactions with neighbours exacerbates their impact.

1.8 Where a tree owner refuses to remedy the issue, neighbourhood tree disputes can escalate quickly, and can undermine a good neighbourly relationship.

1.9 Personal security and safety within a private home-space are important, and an ongoing dispute with a neighbour can threaten individuals’ enjoyment of this space.

1.10 The probability of this type of dispute escalating may be higher because of neighbours’ close proximity to one another, resulting in more encounters in their day-to-day lives.

1.11 Tree disputes can also escalate into further disputes, such as vandalism or other matters.^[3]

1.12 The need for clear rules and simple processes to resolve neighbourhood tree disputes has been recognised since the beginning of written law.

1.13 Early documentary evidence of this can be traced back to around 455 BC and the Laws of the Twelve Tables, often cited as the beginning of European law. Representing the written code of the Roman Republic, the laws were drawn up by a commission of ten (Decemviri), and recorded on twelve bronze tablets.^[4] Designed to apply across the entire society, regardless of class, the laws included these rules about trees’ impact on neighbours justifying legal action and attracting penalties:^[5]

If a tree from a neighbour’s farm has been felled by the wind over one’s farm, …

one rightfully can take legal action for that tree to be removed.^[6]

If an overhanging tree causes injury by its branches or its shade, let it be cut off

15 feet from the ground.^[7]

For each illegal cutdown of trees that belong to someone else the culprit shall pay

20 asses.^[8]

1.14 In Victoria, people usually begin by trying to resolve their disputes with neighbours informally. However, this is often not practicable or effective, particularly where neighbours disagree over who is responsible for taking action to mitigate risks or damage.

1.15 Neighbours involved in tree disputes may not have a clear sense of their rights and responsibilities, making informal dispute resolution difficult. The Dispute Settlement Centre of Victoria (DSCV), a unit of the Department of Justice and Regulation, deals with a large number of tree-related disputes. Its mediation services are often the first external assistance sought.^[9]

1.16 If mediation is unsuccessful, parties involved in tree disputes may choose to take their dispute to court.^[10] These disputes are currently governed by the common law, specifically the torts of nuisance and negligence. Common law rules in this area are often complex, difficult to define, and lack clear statements of rights and responsibilities.

1.17 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’.^[11]

1.18 The options currently available for resolving disputes are either non-compulsory and non-binding (informal resolution, DSCV mediation and private mediation) or litigious and not very accessible (court-based legal action).

1.19 The Commission has been told by community members that the current mechanism for addressing tree disputes in Victoria is confusing, ineffective and costly.

1.20 Proposals and comments received in favour of reviewing the law call for the implementation of a statutory scheme that clearly sets out the rights and responsibilities of parties involved in tree disputes.^[12]

Defining a tree

1.21 Disputes between neighbours can arise over a wide variety of vegetation, including trees of different sizes, bushes, creepers and vines, overhanging branches, roots, products of trees (needles, leaf litter and pollen) and dead trees.

1.22 Although most people have a common understanding of what a tree is, there are very few definitions of ‘tree’ in Victorian legislation.^[13] Existing definitions include:

• The Forests Act 1958 (Vic) provides that a ‘tree or trees includes trees shrubs bushes seedlings saplings and reshoots whether alive or dead’.^[14]

• The Country Fire Authority Act 1958 (Vic) defines ‘scrub or vegetation’ to include ‘trees bushes plants and undergrowth of all kinds and sizes whether living or dead and whether standing or not standing, and also includes any part of any such trees bushes plants or undergrowth whether severed or not severed’.^[15]

1.23 At the local government level, trees are defined in different ways. For example, the Melbourne City Council’s definition includes ‘the trunk, branches, canopy and root system of [a] tree’.^[16] Nillumbik Shire Council defines a tree as a ‘long lived woody perennial plant greater than (or usually greater than) 3 metres in height with one or relatively few main stems or trunks’.^[17]

1.24 The Macquarie Dictionary defines a tree as ‘a perennial plant having a permanent woody, self-supporting main stem or trunk, usually growing to a considerable height, and usually developing branches at some distance from the ground’.^[18] Further definitions are set out at [6.17]–[6.27].

1.25 For the purposes of this review, the Commission is seeking community views about disputes over trees and vegetation broadly. Other jurisdictions provide different definitions of what constitutes a tree, and the options for this in Victoria are discussed in Chapter 6.

Scope of the issue

1.26 Many residential properties have trees growing within their boundaries. The potential for neighbourhood tree disputes to arise is high. Data from the DSCV shows that a large number of people experience disputes with neighbours over trees.

1.27 In preliminary consultations, senior staff at DSCV told the Commission that tree disputes were the third most common type of dispute referred to their centres.

1.28 Data supplied by the DSCV shows that in the 5.5-year period spanning December 2011 to

May 2017, 18,727 of the 109,039 disputes referred related to tree disputes. This represents an average of 17.2 per cent of the total workload. The highest percentage of tree disputes (19.2 per cent) occurred in 2012, with 2014 recording the lowest figure

(15.7 per cent). It is clear that disputes about trees are a consistently significant proportion of the DSCV’s work.^[19]

1.29 Given the volume and frequency of neighbourhood tree disputes, the Commission has determined that a review of the current law governing the resolution of these disputes

is timely.

Origin of the project

1.30 As well as inquiring into matters referred to it by the Attorney-General, the Commission has the power to initiate its own projects under its community law reform function.

1.31 This function involves inquiring into ‘relatively minor legal issues that are of general community concern’.^[20] The term ‘relatively minor’ means limited in size and scope. It does not mean that the subject matter of the project is insignificant. These projects are referred to as ‘community law reform projects’, and are often initially suggested to the Commission by community members or groups.

1.32 The terms of section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) mandate that community law reform projects ‘will not require a significant deployment of the resources available to the Commission’. Accordingly, the Commission considered the priorities of subject matter, and concluded that the subject matter should be:

disputes between neighbours about trees on private neighbouring land that cause damage and/or harm (‘neighbourhood tree disputes’).

1.33 To limit the size of the inquiry, the Commission decided not to investigate disputes concerning trees situated on public land, nor disputes concerning the obstruction of sunlight and views by neighbouring trees. The full terms of reference are set out at vii of this consultation paper.

Interstate reviews

1.34 Disputes between neighbours have been the subject of reviews by government agencies and state law reform bodies.

1.35 While the scope and subject matter of each review have been different, each has been of substantial assistance to the Commission in its preliminary investigation.

1.36 The law reform bodies of Queensland, New South Wales and Tasmania have completed significant reviews. The New South Wales review dealt more generally with issues relating to neighbour relations, of which tree disputes was one. The Queensland review explored issues common to tree and fence disputes.

1.37 The Tasmanian review focused on rights to sunlight and views. While this type of dispute is not being explored in this project, the Commission will be dealing with similar themes.

1.38 Each of these reviews recommended a statutory scheme for resolving tree disputes and made recommendations about which forums would be most appropriate to bring an action under the proposed legislation. They all recommended that neighbours be required to attempt to resolve disputes themselves before pursuing legal remedies.

New South Wales Law Reform Commission—Neighbour and Neighbour Relations Report (1998)

1.39 The New South Wales Law Reform Commission (NSWLRC) review preceded the introduction of the statutory scheme for resolving tree disputes in New South Wales. The review considered disputes over damage and harm caused by trees, and the obstruction of sunlight and views.

1.40 The NSWLRC found that the common law of nuisance and abatement did not provide an adequate dispute resolution process. The NSWLRC made eight recommendations, including that remedies be made available for such damage or harm and obstructions of sunlight and views and that, before seeking relief, neighbours be required to attempt to resolve disputes themselves.^[21]

1.41 The report recommended that tree owners should have greater responsibility for any damage trees may cause. It proposed new legislation which would make tree owners responsible for ensuring that their trees do not cause damage to neighbouring property or interfere unreasonably with a neighbour’s enjoyment of land.^[22]

1.42 As a result of the NSWLRC recommendation for a simple, inexpensive and accessible process for resolving tree disputes, the separate statutory scheme under the Trees (Disputes Between Neighbours) Act 2006 (NSW) was enacted in 2006.^[23]

NSW Department of Justice and Attorney-General—Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

1.43 The Trees (Disputes Between Neighbours) Act 2006 (NSW) provided for a review of the Act two years after it was assented to.

1.44 The statutory review, conducted by the NSW Department of Justice and Attorney-General, found that the policy objectives of the Act (simplicity, affordability and accessibility) had remained valid,^[24] and that the procedure established by the Act and implemented by the Land and Environment Court was meeting those objectives.^[25]

Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (2015)

1.45 The 2015 Queensland review was a statutory review of the existing Act by the Queensland Law Reform Commission (QLRC) to determine whether it was meeting its original objectives. It looked at the whole Act, which includes a scheme for addressing tree disputes about both damage and harm caused by trees, and the obstruction of sunlight and views.

1.46 The QLRC concluded that, overall, the objects of the Act remained valid, and that the Act was meeting its objectives. It reaffirmed the ‘continuing need in the community for a State-wide statutory framework to assist neighbours to resolve issues and disputes in relation to … trees’.^[26]

Tasmania Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views (2016)

1.47 The Tasmania Law Reform Institute (TLRI) review was limited to tree disputes about the obstruction of sunlight and views. The Institute made 18 recommendations, including that remedies be made available for such obstructions and that, before seeking relief, neighbours be required to attempt to resolve disputes themselves.

1.48 Notably, the TLRI stated that ‘a model similar to the Victorian model of dispute resolution for resolving neighbourhood disputes about trees and hedges [should] not be implemented in Tasmania’.^[27]

1.49 The recommendations have formed the basis of the Neighbourhood Disputes About Plants Act 2017 (Tas). Although the TLRI review dealt only with sunlight and views, in drafting the legislation ‘it was considered sensible for the statutory scheme to also address matters that would otherwise be dealt with under a common law nuisance’.^[28] The new Act therefore also covers trees causing damage or injury.

Relevant Victorian review

1.50 As a number of jurisdictions have enacted similar (or combined) schemes for the regulation of neighbourhood and tree disputes, the 2014 reforms to the Fences Act 1968 (Vic) have some relevance to this project.

Review of the Fences Act 1968 (Vic)

1.51 The Fences Act was subject to a major review by the Victorian Parliamentary Law Reform Committee in 1998.

1.52 The Committee’s report made recommendations to make fencing processes more comprehensive and transparent, and to give parties clearer guidance about their obligations. Informed by the Committee’s work, the government undertook a further review of the Fences Act in 2011 and conducted public consultation on a discussion paper in late 2012.

1.53 Changes brought in by the resultant Fences Amendment Act 2014 clarified and simplified the dispute resolution process in relation to shared fences.

1.54 Prior to the changes, the Fences Act contained separate processes to manage construction of a dividing fence and the maintenance and repair of a current fence. The amended Act provides for one simplified process.

1.55 The amended Act also clarifies issues of long-term tenants’ liability, the contributions of owners and, importantly, introduces a simple and clear Notice to Fence, which forms the basis for owners to negotiate over proposed fencing works.

1.56 In the Second Reading Speech for the Bill, the then-Assistant Treasurer explained the extent of the problem, and the importance of the changes to this seemingly small area

of law:

Although the monetary amounts in dispute may be relatively small, fencing disagreements can create tension between neighbours. In 2012–13, fencing disputes represented the greatest number of calls to the Dispute Settlement Centre of Victoria, with 6611 inquiries made. The amount in dispute in a fencing matter is also likely to be significantly less than the cost of consulting legal representatives, pursuing court

proceedings and enforcing small judgement debts. For these reasons, clear and streamlined processes that assist neighbours to undertake fencing works and resolve disputes are essential.^[29]

Community input

1.57 The Commission invites the views and experiences of the community on the questions posed in this paper. A complete list of questions can be found on pages xi–xiii.

1.58 Some chapters in this paper cover detailed, technical elements of the relevant law, while others deal with the process of dispute resolution. The Commission encourages anyone with a view on the issues to make a submission. Submissions may cover any or all aspects of the paper, and need only deal with those elements you wish to comment on. Accordingly, you may wish to read only those parts of the paper that relate to your areas of interest.

1.59 While you are welcome to share any information you think relevant, the Commission’s inquiry, and subsequent recommendations, will be limited by the parameters set out in the terms of reference, reproduced on page vii.

1.60 Specifically, the Commission will not be inquiring into:

• disputes concerning trees situated on public land

• disputes concerning the obstruction of sunlight and views by neighbouring trees.

1.61 The Commission invites written submissions by 28 February 2018. There is no set requirement for the layout, length or content of a submission, although topics should fall within the terms of reference. More details on how to make a submission are set out on page v. The Commission places all submissions on its public website, unless there is a substantial reason not to. If you do not wish your submission to be published, please inform the Commission.

1.62 The Commission will also meet with individuals and groups with experiences or knowledge in the area of tree disputes. Please contact the Commission if you would like to be involved in a consultation meeting.

1.63 In addition, the Commission has created a short online survey to canvass views and experiences. Some of the survey questions are similar to the consultation questions in this paper. All are welcome to take the survey at www.surveymonkey.com/r/treedisputes to share their views and experiences.

1.64 After holding consultation meetings, considering submissions and examining survey results, the Commission will write a report detailing its recommendations for law reform in the area of neighbourhood tree disputes in Victoria.

1.65 The report will be presented to the Attorney-General for consideration, and then tabled in Parliament.

1. The quantifiable economic benefit of trees is also increasingly well recognised. See, eg, the discussion in Greg M Moore, ‘The Importance and Value of Urban Forests as Climate Changes’ (2012) 129(5) The Victorian Naturalist 167.

   ↑

2. Government of Queensland, What to Do if a Neighbour’s Tree is Affecting You <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/>; Dispute Settlement Centre of Victoria, Department of Justice and Regulation (Vic), Know Your Rights <www.disputes.vic.gov.au/know-your-rights-0>; Community law reform proposals received by the Commission between 2010 and 2016.

   ↑

3. Gregory Moore, ‘Acts of Arborial Violence: Tree Vandals Deprive Us All’, The Conversation (online), 2 June 2015 <https://theconversation.com/acts-of-arborial-violence-tree-vandals-deprive-us-all-41342>; Dan Jervis-Bardy, ‘Vandals graffiti Unley home after owners gain approval to cut down river red gum tree’, The Advertiser (online), 26 July 2017 <www.adelaidenow.com.au>; Lynda Cheshire and Robin Fitzgerald, ‘From Private Nuisance to Criminal Behaviour: Neighbour Problems and Neighbourhood Context in an Australian City’ (2015) 30(3) Housing Studies 100, 101, 115–6.

   ↑

4. Oliver Thatcher (ed), The Library of Original Sources, Vol. III: The Roman World (Milwaukee University Research Extension Co, 1901) 9–11.

   ↑

5. Translations sourced from a number of sites (see footnotes 6–8). Tablets VII and VIII appear to have been used interchangeably.

   ↑

6. Tablet VIII, 9: Allan Chester Johnson, Paul Robinson Coleman-Norton, and Frank Card Bourne, Ancient Roman Statutes (University of Texas Press, 1981). Reproduced in The Avalon Project, Documents in Law, History and Diplomacy (2008) Yale Law School Library <http://avalon.law.yale.edu/ancient/twelve_tables.asp>.

   ↑

7. Tablet VIII, 5: The Romans EU, The 12 Tables <www.the-romans.eu/books/The-12-tables.php>.

   ↑

8. Tablet III, 12: ibid.

   ↑

9. Victoria Law Foundation, Neighbours, the Law and You (March 2015) Everyday Law <www.victorialawfoundation.org.au/publication/neighbours-the-law-and-you/read>.

   ↑

10. Typically in the Magistrates’ Court: Magistrates’ Court Act 1989 (Vic) s 100. VCAT does not have jurisdiction to hear common law complaints.

    ↑

11. Margaret Davies and Kynan Rogers, ‘Tale of a Tree’ (2014) 16 Flinders Law Journal 43, 52.

    ↑

12. Information provided by the Dispute Settlement Centre of Victoria to the Commission on 18 May 2016; Community law reform proposals received between 2010 and 2016.

    ↑

13. There is no definition of ‘tree’ in the Catchment and Land Protection Act 1994 (Vic); Conservation, Forests and Lands Act 1987 (Vic); Flora and Fauna Guarantee Act 1988 (Vic); Planning and Environment Act 1987 (Vic); Heritage Act 1995 (Vic); Aboriginal Heritage Act 2006 (Vic).

    ↑

14. Forests Act 1958 (Vic) s 3.

    ↑

15. Country Fire Authority Act 1958 (Vic) s 3.

    ↑

16. Melbourne City Council, Activities Local Law 2009, 1.11.

    ↑

17. Nillumbik Shire Council, Nillumbik Tree Management Guidelines, September 2015, 7 <www.nillumbik.vic.gov.au/Council/Council-property/Maintenance>. This definition is drawn from Standards Australia Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007) [2].

    ↑

18. Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) ‘tree’.

    ↑

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

    ↑

20. Victorian Law Reform Commission Act 2000 (Vic) s 5(1)(b).

    ↑

21. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) viii–x.

    ↑

22. Ibid 36 (Recommendation 5(1)).

    ↑

23. New South Wales, Parliamentary Debates, Legislative Council, 22 November 2006, 4594–4596 (Henry Tsang).

    ↑

24. Department of Justice and Attorney-General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 10.

    ↑

25. Ibid 15–16.

    ↑

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

    ↑

27. Tasmania Law Reform Institute, Problem Trees and Hedge: Access to Sunlight and Views, Report No 21 (2016) 35 (Recommendation 3).

    ↑

28. Tasmania, Parliamentary Debates, Legislative Council, 22 June 2017, 2 (Leonie Hiscuitt).

    ↑

29. Victoria, Parliamentary Debates, Legislative Council, 3 April 2014, 1316–1317 (Gordon Rich-Philips).

    ↑