Neighbourhood Tree Disputes: Consultation Paper

3. Resolving neighbourhood tree disputes in Victoria

Introduction

3.1 In Victoria, neighbours are encouraged to resolve their tree disputes informally, through negotiation and discussion. Parties to a dispute can access online resources, or contact legal and government agencies for guidance in understanding their rights and responsibilities, and resolving their dispute.

3.2 Where the informal approach is ineffective, formal dispute resolution is available, with court proceedings as the final step to seeking a binding resolution of the dispute.

3.3 However, navigating these steps can be confusing, as it is difficult to find definitive statements of rights and responsibilities relating to tree issues. In Victoria, the law is based on the common law, including the torts of nuisance, negligence and trespass.^[1] This is true for other states and territories in Australia with the exception of New South Wales, Queensland and Tasmania, which have enacted legislation. A table setting out the common law torts and their equivalent interstate statutory provisions is set out at

the Appendix.

3.4 This chapter sets out the steps that neighbours in Victoria can take to resolve tree disputes.

Process in Victoria

3.5 In Victoria, the resolution of tree disputes can be approached in a number of ways. The process is made up of several independent stages. These can include, depending on the cause of the dispute:

• making an insurance claim

• self-help and tree trimming

• attempting informal resolution

• engaging in formal alternative dispute resolution, or

• court proceedings.

3.6 Each of these stages is discussed in more detail below.

Insurance claims

3.7 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.

3.8 This is commonly the case when there has been major damage to property, especially during storm events which can cause trees to fall.

3.9 Household insurance may cover damage caused by trees.^[2] 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.^[3] However, the scope of the cover differs from one insurer to another. Coverage details are contained in the individual policy’s product disclosure statement.^[4]

3.10 Generally speaking, a householder’s insurance will only cover damage to their property from their trees. 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.^[5]

3.11 Where the tree owner can be shown to be at fault (for example they have 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.

3.12 For parts of a house not generally included in standard household cover, for example a garden shed, insurance providers may require the purchase of additional cover for damage caused to them.

3.13 Common insurance exclusions relevant to damage caused by trees include damage caused by the growth of tree roots, and by the lopping or removal of trees or branches that have fallen onto the land without causing any damage.^[6]

3.14 Access to an insurance payout may not affect legal liability if an affected neighbour then pursues legal action. It may, however, ‘affect to whom the payment is made’: the insurance company may be reimbursed, rather than the affected neighbour receiving damages as well as an insurance payout.^[7]

3.15 Additionally, where legal action is pursued, a tree owner’s household public liability insurance may cover legal costs, or the amount of compensation they are required to pay, where the condition of their property, including any subject tree, caused damage to neighbouring property or injury to a person.

3.16 Insurance cannot, however, prevent damage, with a claim only possible once damage or 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’

3.17 Affected neighbours may sometimes take matters into their own hands, and trim back neighbours’ trees that overhang their property. This type of self-help is called ‘abatement’, a remedy developed under the common law.

3.18 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’.^[8]

3.19 In some cases, abatement may be a timely solution to a tree dispute. In other cases, trimming back to the boundary line and returning the branches can cause further conflict.

3.20 There are two ways in which an affected neighbour can abate a nuisance caused by a tree:

• by removing encroaching parts of the tree, usually branches or roots, up to the boundary line or installing preventative measures such as underground root barriers,^[9] or

• by physically entering the tree owner’s property to remove the interference caused by the tree.^[10]

3.21 Abating up to the boundary line is advised and encouraged where appropriate.^[11] 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. Such action can potentially prevent damage. However, there is no right to anticipatory action without encroachment. That is, a neighbour cannot trim branches to prevent encroachment.^[12]

3.22 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 tort of conversion.^[13] An affected neighbour does not need to give notice to the tree owner to abate up to the boundary line.^[14]

3.23 Abatement by entering the tree owner’s property is justified only where ‘there is immediate danger to life or health so as to render it unsafe to wait’,^[15] and it is considered prudent to notify the property owner before entering their land.^[16] 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’.^[17]

3.24 An affected neighbour must abate cautiously to avoid damage and ensure that they do not trespass or act negligently.^[18]

3.25 The costs of abatement cannot generally be recouped.^[19] Furthermore, a tree preservation order will limit the ability of an affected neighbour to abate.^[20]

3.26 Where it is not possible or appropriate to abate,^[21] an affected neighbour may bring proceedings in court to seek an injunction or damages.^[22]

Neighbour-led dispute resolution

3.27 Neighbours may seek to resolve problems relating to trees informally, without the involvement of lawyers or formal dispute resolution. Abatement may be carried out as a result of successful informal dispute resolution.

3.28 People with concerns about trees or who are experiencing tree disputes will often seek out information about their rights and responsibilities in order to resolve the problem for themselves. They may also engage a tree professional, such as an arborist, for an expert assessment before or after approaching their neighbour informally to discuss the situation and negotiate a resolution.

3.29 Some government and community organisations have published useful resources aimed at helping neighbours resolve their tree dispute. Most emphasise resolving disputes informally wherever possible. These resources are guides only, providing general information. They are also not intended to provide legal advice. Some neighbours in more complex circumstances may find limited support for informally resolving their dispute.

3.30 The following paragraphs contain advice on information resources available to neighbours, informal communication methods, and the role of arborists in tree disputes.

Information sources

3.31 There are a number of resources available that explain the law and provide tools for resolving disputes.

3.32 Most resources, such as those provided by the Dispute Settlement Centre of Victoria (DSCV), Victoria Law Foundation, and Victoria Legal Aid^[23] emphasise maintaining harmonious neighbour relationships so that conflict can be avoided and a constructive resolution may be reached.^[24]

3.33 The DSCV website gives a general outline of the law, sets out answers to frequently asked questions about trees, and provides a step-by-step guide to seeking a reasonable resolution.^[25]

3.34 The Victoria Law Foundation brochure Neighbours, the Law and You gives a general overview of issues to be aware of, including what local councils can help with and the practicalities of abatement, as well as providing links to the DSCV and to the Magistrates’ Court websites.^[26]

3.35 Victoria Law Foundation promotes informal dispute resolution, noting that:

constructively working out any problems together with your neighbour is the best way to maintain a good relationship with them so you can deal with any future issues. Whatever the problem, in most cases your best option is to try to resolve it by talking with your neighbour and sorting it out in a friendly and informal way. This approach is most likely to result in the best solution for you both.^[27]

3.36 The Fitzroy Legal Service’s Law Handbook explains nuisance and ‘self-help’ (abatement), and offers practical tips.^[28]

3.37 Local council websites and customer service centres often provide a range of information and links, with significant variation in detail between councils.

3.38 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 and private lawyers.

Communication advice

3.39 Common themes contained in the information sources outlined above 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 neighbour disputes can easily escalate and have detrimental effects on both parties’ living situation.

3.40 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.

Engaging a tree professional

3.41 Public information on tree disputes often recommends that people engage a tree professional, usually an arborist, to conduct an assessment of the tree in question.^[29]

3.42 The Commission was informed by arborists that they have varying levels of engagement in private disputes. Where the neighbours’ relationship is amicable, an arborist may discuss with the non-commissioning neighbour the extent of any issue, and their reasoning for coming to conclusions about the tree’s health or risk profile. This type of informal advice from a tree professional may help to bring the neighbours to an agreement.

3.43 Commonly, however, by the time an arborist is engaged by one neighbour, the relationship has soured to the extent that the commissioning neighbour does not want the arborist to speak to the other neighbour, or even to be seen to be inspecting the tree. The Commission has heard anecdotal stories about arborists being asked to park around the corner, or to assess a tree when the neighbour is away from home. This presents some difficulties where the tree is on neighbouring land. In these situations, arborists are unable to make a full physical inspection, and have to make a visual assessment from across a fence. In this case, where evidence about the tree’s health or its potential to cause damage or harm cannot be gathered direct from the tree, the arborist may be limited to general statements of opinion.

3.44 Arborists will often be wary of providing any opinion on legal matters to clients, and may instead refer them to DSCV, the Magistrates’ Court or their local council if the tree is protected under local laws. The same is true for industry organisations which frequently receive calls from neighbours asking about their rights and responsibilities.^[30]

3.45 Instead, arborists can provide a report setting out their observations of the tree’s condition, health and recommendations for, typically, management or removal of a tree.

3.46 While there is no standard definition of ‘arborist’, most are qualified in accordance with various levels of the Australian Qualifications Framework (AQF).^[31] For example, 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, amongst other things. An AQF Level 5 arborist would hold a diploma and be able to work independently as a consultant or in a supervisory role.

3.47 More highly qualified arborists may have a better understanding of how a tree’s health can be properly managed in the long term. It is not clear how much weight community members give to whether or not an arborist is suitably qualified to carry out tree works or assessments. Information on what level of qualification is advisable is not easily accessible to private members of the community.^[32]

3.48 Arboricultural organisations commonly advise that arborists of minimum AQF Level 3 should be engaged for tree works, such as pruning or lopping.^[33] 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’.^[34]

3.49 Where informal neighbour negotiations are not successful, the next step is often to undertake a form of structured dispute resolution, such as mediation.

Alternative dispute resolution

3.50 Alternative dispute resolution (ADR) refers to any formal process, other than judicial (court) determination, in which an impartial person assists parties to 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).

3.51 There are many private practitioners working in each of these forms of ADR, who may be engaged by people experiencing a dispute.

3.52 The primary means of resolving tree disputes in Victoria is through the voluntary mediation service provided free of charge, by DSCV.

Dispute Settlement Centre of Victoria

3.53 DSCV is part of the Victorian Department of Justice and Regulation and provides dispute resolution services across 14 metropolitan and regional locations in Victoria.

Services and process

3.54 As noted above, DSCV maintains a comprehensive and informative website with general information on dispute resolution techniques and resources. It also provides clear and simple guidance on the law and processes involved in the resolution of common tree disputes, including links to other information sources such as those discussed above at [3.31]–[3.38]. The site lists frequently asked questions about tree issues in Victoria, addressing common issues in simple and accessible language.^[35]

3.55 Dispute Assessment Officers (DAOs) within DSCV are the first point of contact for those seeking to resolve disputes. When a client makes initial contact, the DAO provides general support and advice on dispute resolution, including:

• listening to clients’ concerns

• helping to clarify the issues

• answering questions

• providing techniques and strategies for resolving the dispute

• referring clients to other specialist services where needed.

3.56 With the client’s consent, DAOs may also contact the other party to the dispute.^[36] 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.

3.57 If a dispute is assessed as suitable for mediation,^[37] 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, and explain what has led them into dispute, and what they propose will resolve the issue. Parties may be in the same room, or in separate rooms, with a mediator acting as an intermediary.

3.58 This mediated assistance in exploring the issues, developing options and assessing alternative outcomes, if successful, results in a written agreement. A high proportion of DSCV mediations end in agreements,^[38] although these agreements reached in DSCV mediations are not otherwise binding.^[39]

3.59 DSCV also administers a Magistrates’ Court Civil Claims Program, handling referrals for mediation from the Court.^[40] If mediation is successful, a court hearing is avoided. After mediation, DSCV communicates the outcome back to the Court. The mediated agreements generally take the form of consent orders, terms of settlement, or the filing of a notice of discontinuance.^[41]

Volume of tree disputes at DSCV

3.60 Disputes relating to trees^[42] are the third most common subject of inquiries to the DSCV, representing around 17 per cent of their work.^[43]

3.61 Information provided to the Commission by DSCV analyses the 18,727 out of 109,039 cases relating to trees, shrubs and creepers, recorded over the 5.5-year period from December 2011 to May 2017.

3.62 The data provided shows that the proportion of tree disputes that progress further through the DSCV framework is relatively low. In the relevant period, 11.3 per cent of tree disputes involved an ‘approach’, inviting the other party to participate in dispute resolution.^[44] The total rate of DSCV-facilitated resolution over the relevant period is

5.3 per cent, or 922 cases.^[45]

3.63 Of these, DSCV was able to facilitate a resolution before formal mediation in 4.1 per cent of cases, and a further 1.2 per cent was brought to mediation.^[46]

3.64 DSCV also provided a breakdown of cases received by season, highlighting a clear increase in enquiries in the spring months. The proportion of enquiries made in summer was also markedly higher than in autumn or winter.^[47]

Question

2 Have you been involved in a DSCV mediation about a neighbourhood tree dispute? What was your experience?

Court proceedings

3.65 Parties in conflict over a tree may litigate their dispute in court, an option which is often described as the avenue of last resort.^[48] Courts in Victoria are able to hear and determine tree disputes according to the common law, described in more detail below from [3.91]–[3.226].

3.66 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.

3.67 Once a claim has been received by a court, the court itself may order that parties participate in mediation, or another form of court-ordered dispute resolution, before the case can be heard by a judge or other decision maker.

3.68 The jurisdiction, scope and fees of the Magistrates’ Court, County Court and Supreme Court (as relevant to tree disputes) are discussed in more detail below.

Magistrates’ Court of Victoria

3.69 The Magistrates’ Court has jurisdiction to hear civil matters where claims for works or damages are no more than $100,000.^[49]

3.70 Bringing a case before the Magistrates’ Court can be costly. The application/filing fee depends on the amount being claimed, and ranges from $145 (for claims under $500), to $691.10 (for claims over $70,000). Other fees, for example for serving documents on the other party ($69), may apply.^[50] These are generally applied on a sliding scale by reference to the value claimed for works or damages.^[51]

County Court of Victoria

3.71 The County Court has original, unlimited jurisdiction in all civil matters.^[52]

3.72 The civil jurisdiction of the Court is divided into two divisions: the Commercial Division and the Common Law Division. The Common Law Division includes ‘any proceeding in which the plaintiff claims the recovery of damages founded in tort’.^[53] Costs to have a matter heard in the County Court can be significant, particularly where the amounts claimed are small. The basic filing fee is $851.80.^[54]

3.73 Although there are not many published neighbourhood tree dispute cases from the Victorian higher courts, the majority of those reviewed by the Commission were initiated in the Magistrates’ Court, and later transferred or ‘uplifted’ to the County Court.^[55]

3.74 The cost of transferring a matter from the Magistrates’ Court (for example, when the amount claimed unexpectedly exceeds the Magistrates’ Court’s $100,000 jurisdictional limits) is also $851.50, minus the original fee already paid to the Magistrates’ Court.

3.75 Additional daily hearing fees start at $523.30 for the second day, and increase to $1459 for the tenth and any subsequent days.^[56]

Supreme Court of Victoria

3.76 The Supreme Court also has original, unlimited jurisdiction in all civil matters.^[57]

3.77 The Common Law Division manages claims in property, tort and contract law. Cases in the division are allocated into one of the varied specialist lists, which include the Major Torts List, the Valuation, Compensation and Planning List, and the Civil Circuit List.

3.78 The Major Torts List is ‘designed to facilitate and expedite the passage of large or otherwise significant tortious claims to trial’. The Commission did not find many recent recorded cases in the Supreme Court involving tree disputes between neighbours.^[58]

3.79 Costs in the Supreme Court are higher than in the Magistrates’ or County Court. The cost to file an originating motion is $1065.10. Hearing fees for days or part-days in the Common Law Division begin at $654.10, increasing to $1092.10 for the fifth and subsequent days, and to $1824.40 for the tenth and subsequent days.^[59]

3.80 Fees for legal representation are separate to court costs in all three courts. If unsuccessful, parties may also be ordered to pay the other party’s legal and court costs.

Question

3 Have you been involved in a Victorian court case about a neighbourhood tree dispute? What was your experience?

Law in Victoria

Legislation affecting tree disputes

3.81 In Victoria, the management and removal of trees can be affected in some circumstances by legislation dealing with land management, land protection and public safety. These laws do not address the resolution of tree disputes more generally, but may be relevant to the rights and responsibilities of parties in some disputes.

3.82 Some of these laws, including local laws, stipulate what should happen to a tree that causes (or is likely to cause) damage or harm, as well as the scope of a tree owner’s liability where they fail to appropriately maintain a tree.

3.83 The Planning and Environment Act 1987 (Vic) provides the legal framework for Victoria’s planning system. Overlays and planning controls under this framework may affect individuals’ ability to manage trees on private land.

3.84 The Public Health and Wellbeing Act 2008 (Vic) contains an offence of creating a nuisance.^[60] Where a nuisance is reported and is found to be ‘dangerous to health or offensive’, councils must investigate and may, in limited circumstances, enter private property to ‘take appropriate action’ to manage the nuisance.^[61]

3.85 It is theoretically possible for this Act to be used in the management of private tree disputes. However, given limited council resources and the fact that they generally have no formal involvement in private disputes, it is most likely that councils would determine that such matters are more appropriately resolved privately, and choose to refer people to other resolution options.^[62] The Commission found no examples of a council using this Act for this purpose.

3.86 Under the Fences Act 1968 (Vic), neighbours can recoup costs or request certain works where:

• a dividing fence is negligently or deliberately damaged or destroyed by a tree, such as where the tree owner has failed to rectify or remove a tree that poses a risk of damage. The tree owner will be liable for the entire cost of repairs to the dividing fence.^[63]

• a dividing fence is in the form of a ‘vegetative barrier’, allowing neighbours to serve on each other a ‘Notice to Fence’ containing requests for works such as the ‘planting, replanting, repair or maintenance of a hedge or similar vegetative barrier that is the whole or part of a dividing fence’.^[64]

3.87 Other laws that compel people to remove vegetation on their land include:

• the Catchment and Land Protection Act 1994 (Vic), under which an owner of land may be directed to remove specified noxious weeds.^[65]

• the Country Fire Authority Act 1958 (Vic), under which local councils may issue Fire Prevention Notices to an owner of land requiring them to remove vegetation fuel hazards.^[66]

• the Electricity Safety Act 1998 (Vic), which requires a tree owner to keep their trees clear of any power lines or to carry out certain works or allow contractors to carry out these works where they fail to.^[67]

3.88 Other laws that deal with the removal of vegetation include:

• the Flora and Fauna Guarantee Act 1998 (Vic), which deals with removal of native vegetation

• the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which protects matters of national environmental significance and national heritage places

• the Heritage Act 1995 (Vic), which covers places of state significance and national significance

• the Aboriginal Heritage Act 2006 (Vic), which protects Aboriginal cultural heritage, and

• transport and road legislation such as the Road Management Act 2004 (Vic) and Rail Management Act 1996 (Vic).

3.89 Each of these are discussed in detail in Chapter 4.

3.90 There is currently no legislation specific to the process for resolving private tree disputes between neighbours in Victoria.^[68]

The common law

3.91 The resolution of tree disputes in Victoria is based on the law of torts, which has largely been developed through judge-made case law, or the ‘common law’.^[69]

3.92 A tort is a ‘legal wrong’ that confers civil liability on the wrongdoer.^[70] 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’.^[71]

3.93 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.^[72]

3.94 In recent times, certain torts have undergone law reform. Their common law principles and elements are now largely restated in, clarified by or altered by statute.^[73] This is particularly true of negligence, which has been given a statutory framework in the respective civil liability statutes of each state and territory.^[74]

3.95 These torts, their defences and available remedies are explored below in further detail.^[75] As the development of the common law is incremental and case-based, a high level of detail is necessary to explain it fully, and to address the need for completeness in the Commission’s review of this part of the law.

3.96 While some general principles are examined, discussion of each tort is limited to the extent it is relevant to tree disputes previously decided by the courts.

Table 1: Overview of relevant torts

Nuisance

3.97 The tort (civil wrong) of nuisance can be classified as a public nuisance, or a private nuisance.^[76] Neighbours in tree disputes will rely on private nuisance.^[77]

3.98 As a general rule, nuisance deals with the ‘reciprocal rights and duties of private individuals’^[78] and their ‘conflicts over competing uses of land’.^[79] 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.^[80]

3.99 In legal terms, a nuisance relates to an act or omission that causes unreasonable interference with the affected neighbour’s land or their enjoyment of land.^[81] It is ‘a tort directed against the plaintiff’s enjoyment of their rights over the land’^[82] and is inextricably linked to a person’s proprietary interests over land they occupy.

3.100 In the context of tree disputes, nuisance covers situations where a tree:

• encroaches on neighbouring land

• causes physical damage to neighbouring land, or

• produces an interference that emanates over neighbouring land.^[83]

3.101 Time limits apply to legal actions in tort. In the case of nuisance, an affected neighbour must bring legal action for nuisance within six years of the date the nuisance occurred.^[84]

Establishing nuisance

3.102 In order to establish nuisance, the affected neighbour must have the right to bring a claim (have ‘standing’) and must have experienced unreasonable interference for which the tree owner is liable.

Affected neighbour must have standing

3.103 As the tort of nuisance exists to remedy unreasonable interference with a person’s use and enjoyment of their land,^[85] the affected neighbour must be in actual possession of the land in order to have standing to bring a claim.^[86]

3.104 Three types of occupants of land have standing in private nuisance: freehold owners in possession of land, and tenants or licensees with exclusive possession.^[87]

3.105 Where the property is leased, only the tenant, who has actual possession of the land and is affected by the nuisance, will have standing to sue. However, where the nuisance causes damage of a permanent nature to the reversionary interest in land, the landlord may also have standing to sue even though they are not in actual possession of the land.^[88]

Interference must be unreasonable

3.106 Although nuisance is generally interpreted as unreasonable interference with the use and enjoyment of land, case law has developed to allow nuisance to be claimed for unreasonable interference resulting in damage to property.^[89] The two outcomes attract different considerations.

Unreasonable interference with use and enjoyment of land

3.107 Unreasonable interference with use and enjoyment of land is typically relied on for interference which intrudes onto the affected neighbour’s land.^[90] In the context of tree disputes, examples of this could include leaf litter,^[91] or the spread of pollen^[92] or seeds.^[93] Importantly, there is no need to prove that actual physical damage has resulted from a nuisance.

3.108 In the Western Australian case of Marsh v Baxter,^[94] a farmer who owned an organically certified farm claimed in nuisance against a neighbouring farmer whose crops included genetically modified (GM) canola. The GM canola seeds blew onto the organic farm, which resulted in the loss of the farm’s organic certification.^[95]

3.109 Unreasonable interference with the use and enjoyment of land has been described as resulting when substantial and unreasonable ‘annoyance, or discomfort’ is caused.^[96] 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’.^[97]

3.110 Trindade and Cane 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.^[98]

3.111 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’.^[99]

3.112 In order to determine this, the court will balance factors including:

• 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.^[100]

3.113 The character of the neighbourhood in which the interference occurs is relevant to determining the unreasonableness of the interference. What is reasonably acceptable in one neighbourhood may not be in another. For example, the emission of noise and smoke in an industrial area may be considered an expected characteristic of the area.^[101]

3.114 However, even if a type of interference is reasonable in a neighbourhood, nuisance can still be found if the interference causes annoyance, inconvenience or discomfort to an unreasonable degree.^[102]

3.115 The degree or extent of the interference is determined by examining its duration, frequency, timing and intensity.^[103] These factors are weighed against one another to determine whether or not the interference can be considered unreasonable.

3.116 For example, an interference of low to moderate intensity may not be unreasonable unless it occurs over an extended period of time; equally, a considerably intrusive interference even if over only a short period of time may be unreasonable.^[104]

3.117 Interference will not be considered unreasonable where the affected neighbour, their land or their use of the land are unduly sensitive to the interference. Whether or not undue sensitivity exists is tested objectively by examining the interference against the ‘ordinary usages of humankind living in a particular society’.^[105]

3.118 An improper motive, or an intention to cause harm, may also be relevant. Where the interference is carried out in order to annoy, vex or harm, nuisance may be established regardless of whether or not that interference is otherwise unreasonable or the affected neighbour is unduly sensitive.^[106]

Unreasonable interference causing damage to property

3.119 The second type of unreasonable interference relates to damage to property.

3.120 In order to make out nuisance causing damage to property, actual physical damage must have occurred. This may include physical damage, such as a crack in concrete foundations, or damage to a dwelling, fixture or chattels on the land.^[107]

3.121 In the Victorian case City of Richmond v Scantelbury,^[108] the roots of elm trees encroached on neighbouring land and, in doing so, extracted water and moisture from the subsoil. This undermined the structure of the affected neighbour’s property and caused its concrete foundations to crack. The affected neighbour sued the tree owner for nuisance^[109] and was awarded damages.^[110]

3.122 A simple encroachment of a branch or root over boundary lines without causing damage, or the mere potential of a tree to cause damage to neighbouring property will not be sufficient to make out nuisance.^[111]

3.123 The presence of damage makes the interference unreasonable.^[112] The relative weight of factors such as the characteristics of the neighbourhood, the extent of the interference, sensitivity and improper motive are not relevant.^[113]

3.124 Where damage has not yet occurred but there are concerns that it may occur in the future, a court may grant relief, but only in limited circumstances. The damage must be imminent or likely to occur in the near future, and be very substantial and almost irreparable in nature.^[114]

Tree owner must be liable

3.125 A tree owner will be liable for the nuisance caused by a tree if they created, adopted or continued the nuisance.

3.126 In determining whether the tree owner has created, adopted or continued the nuisance, a court would consider the relevant acts, omissions and knowledge, discussed below.

Creating a nuisance

3.127 A tree owner can create a nuisance in two ways: by deliberately or recklessly causing the nuisance, or where they know it is reasonably foreseeable that their actions would cause a nuisance.^[115]

3.128 A tree owner may plant a tree in a deliberate or reckless way by, for example, planting a tree likely to cause interference very close to a boundary line.

3.129 However, a tree owner can also create a nuisance by planting a tree without deliberateness or recklessness. In these cases, the tree owner will be liable if they knew or ought to have known that it was reasonably foreseeable that their planting of trees would cause nuisance to their neighbour.^[116]

3.130 This is particularly relevant where a tree is planted by third parties, who are admitted onto the property and whose actions are authorised by the tree owner. Having control over who to allow onto a premises makes the tree owner liable for any nuisance created by the third party.^[117] For example, if a contracted gardener plants a tree which causes nuisance to the neighbour, the tree owner is liable for the nuisance as long as the planting was not outside the scope of what was instructed and the tree owner knew or ought to have known of the risk of nuisance occurring.^[118]

3.131 A tree owner may also be considered liable where their tenant creates a nuisance if they authorised their tenant to plant a tree that posed a ‘special risk of nuisance’,^[119] or if they knew that the probability of the tree causing nuisance was ‘highly likely’.^[120]

3.132 If, however, the tree owner had no knowledge of the risk of nuisance, it was not reasonable to expect them to know, or the tenant or third party acted without authorisation, then the tree owner is not liable.^[121] Instead, liability attaches to the tenant or the third party who created the nuisance.^[122]

3.133 Liability continues as long as the interference remains.^[123]

Adopting or continuing a nuisance

3.134 A person may buy or inherit property on which a tree causing nuisance already exists, having grown naturally or been planted by previous owners.^[124]

3.135 The successive tree owner will be considered liable for nuisance where they adopt or continue the nuisance after coming into possession of the land.

3.136 A tree owner will have adopted the nuisance caused by the tree where they make use of it. Similarly, the 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.^[125]

3.137 As with the creation of a nuisance, the tree owner must have actual or constructive knowledge of the interference.^[126] A tree owner will not be held liable for nuisance if they did not know of it or could not be expected to know that it was likely.^[127] For example, if a tree had shown no signs of decay or structural damage, then its unforeseeable fall during a storm and resultant damaging of neighbouring property will not confer liability on the tree owner.^[128]

3.138 Adopting or continuing a nuisance also requires the tree owner to be at fault.

3.139 A tree owner will be at fault for adopting or continuing a nuisance where they fail to take reasonable steps to end the interference that is reasonably foreseeable.^[129] Foreseeability is based on the real risk of the interference occurring, not just a theoretical risk.^[130]

Reasonable steps

3.140 In order to determine whether the tree owner has failed to take reasonable steps, the court will consider the precautions the tree owner could have taken, and did take, to mitigate or remove the interference.^[131] 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.^[132] Where the cost or inconvenience of taking precautions is prohibitive compared to the risk of damage or discomfort occurring, liability will not be imposed.^[133]

3.141 Liability begins when a tree owner gains actual knowledge of the nuisance or when they ought to have known of the nuisance.^[134]

Defences

3.142 Where a nuisance can be shown, a tree owner may still not be liable in some circumstances, if they have a legal defence. Defences to nuisance may be available to tree owners where:

• they had statutory authority for their actions

• the nuisance was consented to

• the affected neighbour was contributorily negligent.

Statutory authority

3.143 Where an act is authorised by statute, it is not unlawful, even if it causes a nuisance.^[135] This is because it is presumed that Parliament, in authorising activities capable of causing nuisance, has already balanced within the statute ‘the rights of individuals against the benefit to the public of certain nuisance-creating activities’.^[136]

3.144 However, if it is found that the authorised act could have reasonably been carried out without causing nuisance, then the defence will no longer be available.^[137]

Consent

3.145 A tree owner may rely on the express or implied consent of an affected neighbour as a defence. For example, if a tree causing nuisance is maintained by the tree owner for an agreed common benefit, such as providing shade, then the affected neighbour may forego any rights against the tree owner because of the agreement reached.^[138]

Contributory negligence

3.146 Where the person claiming nuisance has themselves contributed to the nuisance, a defence of contributory negligence may be available to the other party.^[139]

3.147 A finding of contributory negligence does not, however, fully defeat a nuisance claim. Instead, it reduces the tree owner’s liability 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.^[140]

3.148 For example, if the affected neighbour could have installed a root barrier earlier in time instead of delaying its installation by months and allowing their property to undergo further damage from the encroaching roots, then a court may find contributory negligence on their part and, as a result, reduce the tree owner’s liability.^[141]

3.149 Any resulting damages awarded to the affected neighbour will be reduced by an amount reflecting the extent of their contributory negligence.^[142]

Claims that cannot be relied on to defend nuisance

3.150 There are three established grounds on which nuisance cannot be defended:^[143]

• ‘Coming to’ a nuisance: those who acquire a property with the knowledge that it is affected by a tree still retain their right to enjoy and use their land without unreasonable interference.^[144]

• The affected neighbour’s use of land and foreseeability of exposure to nuisance: the affected neighbour does not need to take affirmative steps, no matter how marginal, to change the way they would ordinarily use and enjoy their land to minimise the nuisance they experience.^[145]

• Nuisance caused by multiple parties: to claim that the nuisance was the cumulative result of many people’s actions is no defence.^[146]

Remedies

3.151 An affected neighbour has several options for resolving a tree dispute. As discussed above at [3.17]–[3.26], the self-help ‘remedy’ of abatement is often exercised before an affected neighbour pursues an action for nuisance in court.

3.152 Where the affected neighbour takes the matter to court, they may seek an injunction or damages.

Injunction

3.153 An injunction is a court order restraining the tree owner from performing or continuing the interference.^[147] It is the main remedy awarded to an affected neighbour in an action for nuisance.^[148]

3.154 An injunction may be prohibitive, in that it orders the tree owner to stop certain actions; or mandatory, in that it orders the tree owner to carry out a certain act.^[149]

3.155 Injunctions are an appropriate remedy for types of interference that are recurrent, and where a monetary award of damages would not provide relief from the interference.^[150] They are also best suited for types of interference which infringe on the affected neighbour’s right to use and enjoy their land, as opposed to causing damage to property.

3.156 For nuisance expected to occur in the future, an injunction^[151] may be granted, even if the nuisance does not exist at the time the injunction is sought. The high threshold for this type of injunction 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’.^[152]

Damages

3.157 A court may 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.^[153]

3.158 Damages are awarded in order to ‘put the injured parties back as nearly as possible into the position in which they would have been had the wrong not been committed’. While ‘it is recognised that damages cannot return a plaintiff precisely to the pre-tort position’, the award is nevertheless ‘calculated to achieve this as far as money can’.^[154]

3.159 Damage must be proven in order for an award to be made.^[155] This could be material loss or damage to land, possessions, or for the loss of profits which would have otherwise been earned from use of the land.^[156]

3.160 Damages cannot be awarded for a decrease in the value of the affected neighbour’s property.^[157]

3.161 Each new instance of loss or damage caused by a repeated nuisance gives rise to a fresh claim for damages.^[158] This discourages tree owners from repeating the nuisance after compensating the affected neighbour for past damage.

3.162 Damages can be awarded alone or in combination with an injunction.^[159] Where contributory negligence is found, damages will be reduced by an amount reflective of this.^[160]

3.163 Common law damages cannot be awarded for nuisance expected to occur in the future.^[161] However, equitable damages, instead of an injunction for future nuisance,^[162] may be awarded in rare circumstances.^[163]

Negligence

3.164 Where a tree owner fails to exercise reasonable care in relation to their tree, resulting in harm or loss to a neighbour, the tree owner can be found to have been negligent.^[164]

3.165 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.^[165]

3.166 Damages for negligence is therefore the most appropriate remedy to 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.^[166] 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.^[167]

3.167 In tree disputes where damage to property is concerned, negligence is often submitted as an alternative cause of action to nuisance.^[168] A matter may succeed on one or the other, or both causes of action.^[169]

3.168 Where personal injury is alleged in a tree dispute, it is more likely that negligence will be exclusively relied on.^[170]

3.169 While negligence cases concerning trees and damage to property are plentiful,^[171] negligence cases concerning personal injury due to trees are scarce. The Commission is unaware of any cases in the higher courts concerning personal injury caused by trees.^[172]

3.170 Although personal injury from trees is not frequently litigated,^[173] the Commission is aware that it is an issue of concern in the community and warrants exploration.^[174] Personal injury resulting from a tree was considered in reviews of tree disputes in other jurisdictions and is frequently brought forward as a basis of a claim under the New South Wales and Queensland statutory schemes.^[175]

3.171 Negligence claims must be brought before a court within three years of the harm being discoverable (ie it is known about or could be identified), or within 12 years of the date the negligent act occurred, whichever occurs first.^[176] For negligence resulting in damage to property, a person must bring legal action within six years of the date the negligent act occurred.^[177]

3.172 The requirements that must be established for a person’s actions to be considered legally negligent, and the available defences and remedies are discussed below.

Establishing negligence

3.173 In order to establish negligence, the affected neighbour must prove all of the following:

• that the tree owner owed them a duty of care

• that the tree owner breached that duty

• that the breach resulted in harm

• that the harm was not too remote from, but was a reasonably foreseeable consequence of, the breach.^[178]

Duty of care

3.174 In order for a person to be held liable for negligence, it must be shown that they owed a duty of care to the person alleging negligence.^[179]

3.175 A person who owes a duty of care to another fulfils this duty 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’.^[180]

3.176 It is well established that neighbours owe each other this duty of care.^[181]

Breach of duty of care

3.177 The duty of care can be breached through a positive act or omission that falls short of the standard of care that a reasonable person of ordinary prudence would adhere to.^[182]

3.178 However, a person will not fall short of this standard of care, and thus will not breach their duty of care, if they take precautions to safeguard against foreseeable risks that are ‘not insignificant’.^[183]

3.179 The foreseeability of risks and whether or not a person has adequately taken precautions against them will depend on factors such as ‘the probability of the risk occurring, the severity of the harm if it does, the cost and difficulty of taking precautions against the risk and the social utility of the conduct that creates the risk’.’^[184]

3.180 The balancing of these factors is commonly referred to in law as ‘the calculus of negligence’;^[185] the result of which will depend on the particular facts of each case.^[186]

Harm

3.181 The affected neighbour must then prove that the breach resulted in harm to them.

3.182 Harm is also referred to as ‘injury’, ‘damage’ or ‘loss’ in case law. 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:^[187]

• Damage to property includes damage caused to anything on the land, including chattels/possessions.

• Personal injury refers to physical bodily injury.^[188]

• Economic loss is an ‘injury to person or property resulting in immediate or subsequent detriment to a person’s income or wealth’.^[189]

Causation and remoteness

3.183 The existence of a breach of duty (by the tree owner) that results in harm caused (to the affected neighbour) does not prove the tree owner’s negligence.^[190] Instead, the affected neighbour must go on to prove that the resulting harm was, in fact, caused by the negligence of the tree owner, and that the consequences they suffer are not too remote.^[191]

3.184 To determine this, the court will use a two-step approach that involves determining first, factual causation^[192] and secondly, the scope of liability.^[193]

Factual causation

3.185 Factual causation is established where the negligent conduct ‘was a necessary condition of the occurrence of the harm’.^[194]

3.186 This reflects the common law ‘but for’ test, which obliges the court to ask whether the affected neighbour would still have suffered their loss if the tree owner had not been negligent.^[195]

3.187 An affected neighbour may need to produce expert evidence, such as reports by arborists or structural engineers, to prove factual causation.^[196]

3.188 Establishing this causal link can be difficult where there may be multiple causes of the harm, such as where an affected neighbour suffers allergies from a neighbouring tree but also from other species of tree, or trees on their own property.^[197]

3.189 In order to assess factual causation in complex circumstances, the courts will apply common law principles.^[198] In addition, section 51(2) of the Wrongs Act directs the court to consider, along with established principles for examining factual causation, ‘whether or not and why responsibility for the harm should be imposed on the negligent party’.^[199]

Scope of liability

3.190 The law provides that a finding of factual causation must consider whether it is appropriate for the negligent person to be held liable for the harm suffered by the affected neighbour.^[200]

3.191 For the courts, this involves finding a ‘policy-based balance between the defendant’s wrongful conduct and the consequences for which the defendant is to be liable’.^[201] This is set out in section 51(4) of the Wrongs Act, which directs the court to consider, among other things, ‘whether or not and why responsibility for the harm should be imposed on the negligent party’.^[202]

3.192 The harm suffered will be considered the responsibility of the tree owner where it is a reasonably foreseeable consequence of their negligent conduct.^[203] There must be a real (not far-fetched) risk of the conduct causing harm to the affected neighbour.^[204] What has to be foreseeable is the type of harm caused, rather than its extent or the manner in which it occurred.^[205]

3.193 For example, if a healthy tree with no signs of decay or rot blows down in gale-force winds and causes damage to property or injury to a person, the harm it causes is not likely to be considered reasonably foreseeable (that is, there was no way for the tree owner to predict this outcome).^[206] The law of negligence is not concerned with ‘acts of God’ or where no known risk ever existed.^[207]

3.194 However, if it was obvious that the tree was full of rot and on the verge of dying, or the tree owner knew that the tree posed a risk of falling down, then any resulting harm from it falling on neighbouring property would be considered reasonably foreseeable, even if the manner in which it fell or the extent of the harm was unexpected.^[208]

Defences

3.195 There are four defences available against claims of negligence. These are:

• contributory negligence

• voluntary assumption of risk

• illegality

• statutory defences.

Contributory negligence

3.196 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.^[209] This provides a partial defence resulting in the award of damages being reduced in proportion to the affected neighbour’s contribution to their harm.^[210]

Voluntary assumption of risk

3.197 A negligence claim may be defeated where the tree owner can prove that the affected neighbour fully comprehended the extent of the risk and freely chose to accept or ignore it, thus voluntarily assuming the risk.^[211]

3.198 Whether or not the affected neighbour comprehended the extent of the risk is a subjective assessment based on their actual knowledge.^[212] Where the risk is obvious, the court will presume the affected neighbour was aware of the risk.^[213]

Illegal activity

3.199 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.^[214] A duty of care may still be owed to a person engaged in an illegal activity in certain circumstances.^[215]

3.200 The court may also 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.^[216]

Statutory defences

3.201 Some defences are included in the Wrongs Act. These include the statutory defences relating to ‘good samaritans’ and volunteers.^[217]

Remedies

3.202 The main remedy for negligence is financial compensation (damages). Damages are awarded for losses that can be proven in precise monetary terms (called special damages), and for losses that cannot be proven so precisely including future financial^[218] and non-financial losses (called general damages).^[219]

3.203 The Wrongs Act sets out various thresholds of harm and caps for monetary amounts that must be applied when awarding damages.^[220]

Trespass

3.204 Trespass to land^[221] is unauthorised entry onto land.^[222] Legal action can be taken against the person entering without authority.

3.205 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’.^[223]

3.206 An action for trespass may be used by the tree owner for invasions of 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.^[224] Secondly, where the affected neighbour physically enters the tree owner’s land without permission.

3.207 Every invasion of land, no matter how minor, is considered a trespass,^[225] even if the trespass does not cause any material damage.^[226]

Establishing trespass

3.208 Trespass is established when the affected neighbour intentionally causes direct physical intrusion onto the tree owner’s land.

3.209 The requirements for making out this cause of action are discussed below.

Intention

3.210 The affected neighbour must intend the trespass. An affected neighbour will have intended the trespass if they ‘deliberately and wilfully’ carried out any voluntary act, such as cutting down branches of a tree that have not encroached onto their land.

3.211 The affected neighbour may be deemed to have intended trespass where it is substantially certain that a particular action would result in contact with the land.

3.212 An affected neighbour who recklessly commits trespass will also be regarded as having had the necessary intention.^[227]

Direct physical intrusion

3.213 The most obvious form of direct physical intrusion which causes contact with the land is entering the land without permission. Direct physical intrusion does not need to be carried out by a person; it may occur when, for example, objects are placed over boundary lines and left on the land, or poison is deposited on the tree owner’s soil.^[228] As Justice Bollen explained in the South Australian case of Gazzard v Hutchesson,^[229] trespass can be made out without entering another’s land when an affected neighbour uses a stepladder to lean over a boundary line and cut their neighbour’s roses.

3.214 The encroachment of roots and branches over boundary lines will not constitute a direct physical intrusion for the purposes of trespass. An action in nuisance would be better suited to these situations.^[230]

Possession of land

3.215 The tree owner must be in actual possession of the land. This means that, where a property is being rented, only a tenant with exclusive possession can bring an action for trespass.^[231]

3.216 A licensee (someone with permission to be on the land but without a tenancy agreement) may also be able to sue third parties for trespass in certain circumstances.^[232]

Defences

3.217 Trespass resulting from mistake, however reasonable, will not be a defence.^[233]

3.218 An affected neighbour may rely on the following defences against trespass:^[234]

• necessity (a belief that the trespass was reasonably necessary to ‘preserve life or protect property from real and imminent harm’)^[235]

• consent.^[236]

Remedies

3.219 A tree owner may seek an injunction or damages as a remedy for trespass. These are discussed below.

Injunction

3.220 A court order (injunction) restraining a person from continuing to trespass, may be sought. For example, this may occur when a person remains on the land after entry and refuses to leave,^[237] places objects on the land and refuses to remove them; or builds a wall on the land. The trespass will continue for as long as the intrusion remains.^[238]

3.221 An injunction may also be sought against any threatened trespass.^[239]

Damages

3.222 Physical intrusion onto property, even without causing material damage or harm, is enough to hold the intruder liable to pay damages.^[240]

3.223 However, for trespass where no damage results, the tree owner may be awarded only a small (‘nominal’) amount of damages.^[241]

3.224 Exemplary or aggravated damages may be awarded where significant disrespect is shown for the rights of the tree owner, and the court considers that punishment is warranted.^[242] For example, 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, would be an example of this.^[243]

3.225 Consequential damages may also be awarded if the consequences following the trespass are not too remote; for example, where a person trespassing on land leaves the gate open, which then allows livestock to enter and damage vegetation on the land.^[244]

3.226 Damages will be limited to the tree owner’s interest in the land.^[245]

Conclusion

3.227 In Victoria, neighbours involved in a tree dispute must rely on disparate information sources published by government and community organisations to navigate the fragmented resolution process for themselves.

3.228 Neighbours unwilling or unable to reach agreement informally have little structure or support to assist them, and conflicts may escalate quickly.

3.229 If formal mediation is sought, neighbours will be provided with more information, but their rights and responsibilities may still not be clear, as the current law in Victoria, based on the common law, is difficult to understand and not clearly articulated in a single, accessible location or document. Further, agreements made in DSCV-led mediation are not necessarily binding, and may not finally resolve a dispute.

3.230 Only when a common law action is brought in the courts are neighbours then subject to binding orders. The outcomes may still not be what either party had expected or hoped for, and the remedies are limited.

Question

4 Are the current law and process for resolving neighbourhood tree disputes in Victoria satisfactory? If not, why not?

1. These are discussed in detail below at [3.97]–[3.226].

   ↑

2. For example, homeowners’ insurance; home and contents insurance; and household public liability insurance, among others. Homeowners also bundle their home insurance policy with contents insurance into a combined ‘home and contents insurance’ policy: Australian Securities and Investments Commission (ASIC), Home Insurance (7 July 2017) Moneysmart <www.moneysmart.gov.au/insurance/home-insurance>.

   ↑

3. Ibid.

   ↑

4. ASIC encourages consumers to carefully examine each provider’s Product Disclosure Statement (PDS) before purchasing and relying on their insurance coverage: Ibid.

   ↑

5. See generally Financial Rights Legal Centre, Factsheet: When a Tree Falls in a Storm, Who Pays for its Removal? (February 2017)
   
   <http://insurancelaw.org.au/factsheets/when-a-tree-falls-in-a-storm-who-pays-for-its-removal-factsheet/>.

   ↑

6. See, eg, AAMI, Home Building Insurance Product Disclosure Statement (10 October 2013), 23, 39 <www.aami.com.au/policy-documents/personal.html#home-building-insurance>; NRMA Insurance, Home insurance Claims—Am I Covered? <www.nrma.com.au/home-insurance-claims-am-i-covered>.

   ↑

7. See, eg, Giallousis v Malcolm [2014] QCATA 337 (8 December 2014).

   ↑

8. William Blackstone, Commentaries on the Laws of England, Book III (Cadell and Davies, 15th ed, 1809) 6.

   ↑

9. ‘There are several cases where either the applicant or the respondent has installed a root barrier in an attempt to limit root growth from either their neighbour’s or their own tree—see Nolan v Psaltis [2007] NSWLEC 764 (24 October 2007) [9]; Lewis v Tilney [2009] NSWLEC 1042 (20 February 2009) [24]’: New South Wales Land and Environment Court, Annotated Trees (Disputes Between Neighbours) Act 2006 (14 January 2013), 24 <www.lec.justice.nsw.gov.au/Documents/annotated_trees_act_january_2013%20-250313.pdf>. Root barriers can be physical structures, chemicals or a combination of the two, and their design will vary on the nature of the damage to be controlled. See, eg, City of Wollongong, Root Barriers Fact Sheet (September 2013) <www.wollongong.nsw.gov.au/factsheets/Root%20Barriers.pdf>.

   ↑

10. Adrian J Bradbrook and Susan V MacCallum, Easements and Restrictive Covenants in Australia (LexisNexis Butterworths, 3rd ed, 2011) [18.1]; Naomi Saligari (ed), The Law Handbook 2017: Your Practical Guide to the Law in Victoria (Fitzroy Legal Service, 39th ed, 2016) 529.

    ↑

11. See, eg, Dispute Settlement Centre of Victoria, Trees (25 September 2017) <www.disputes.vic.gov.au/trees>; Naomi Saligari (ed), The Law Handbook 2017: Your Practical Guide to the Law in Victoria (Fitzroy Legal Service, 39th ed, 2016) 529.

    ↑

12. Joel Silver, Nuisance by Tree—Who’s the Guilty Tree? (18 May 2015) Gordon & Jackson <www.gordonandjackson.com.au/resources_uploads//documents/articles/Nuisance_by_Tree_Joel_Sliver_May_2015_2.pdf>.

    ↑

13. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 152; Robson v Leischke [2008] NSWLR 98; Naomi Saligari (ed), The Law Handbook 2017: Your Practical Guide to the Law in Victoria (Fitzroy Legal Service, 39th ed, 2016) 529.

    ↑

14. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) [2.14]; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478.

    ↑

15. Traian v Ware [1957] VR 200, 207.

    ↑

16. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) [2.14].

    ↑

17. Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478.

    ↑

18. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.280].

    ↑

19. Young v Wheeler [1987] Aus Torts Reps 80–126. But see Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478, where it is stated that the affected neighbour has a duty to mitigate damages and, where abatement is carried out to do so, then cost is recoverable. Hodgson J quotes Jenkins LJ in Davey v Horrow Corporation [1957] 2 All ER 305, ‘Is there any duty to mitigate? Can a person who sees encroaching roots on his land build a house and wait for it to fall down?’ and continues that, in his view, an affected neighbour ‘does, nevertheless, have the usual obligation to mitigate damages; and accordingly, he has the obligation to take reasonable steps to keep these damages to a minimum, and has the corresponding right to claim from the adjoining owner the expenses associated with these reasonable steps.’ [487]. See also Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 525 [21.280].

    ↑

20. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) [2.22]. See paragraphs [4.71]–[4.88] of this paper for more on tree preservation orders.

    ↑

21. See, eg, Campbell v Blackshaw [2017] ACAT 64 (20 August 2017) where the Tribunal stated that abating overhanging branches in this case ‘is not a practical option where the centre of the trunks of the trees are between 18 cm and 67 cm from the boundary. To trim the trees to the boundary would almost certainly render the trees highly unstable and perhaps kill them.’ [10].

    ↑

22. Discussed below at [3.65]–[3.80].

    ↑

23. Dispute Settlement Centre of Victoria, Can’t I Just Fix It Myself? Do I Have to Talk to My Neighbour First? (Video) (23 February 2010) YouTube <www.youtube.com/watch?v=HfIFyZ5Ldf0&index=5&list=PL9AA04FDC58FB138B>; Victoria Law Foundation, Neighbours, the Law and You: Your Guide to Neighbourhood Laws in Victoria (March 2015) <www.victorialawfoundation.org.au/sites/default/files/resources/neighbours_the_law_and_you_2016_web.pdf>; Victoria Legal Aid, Disputes with Neighbours (8 March 2017) <www.legalaid.vic.gov.au/find-legal-answers/disputes-with-neighbours>.

    ↑

24. Similarly, the Queensland Government advises on its website that ‘whenever possible resolve any issues before they damage your relationship with your neighbour’ and that ‘[b]eing on good terms with your neighbour will make it easier to discuss problems and resolve any issues before they get out of hand’: Queensland Government, Avoiding Disputes About Trees (30 October 2015) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/avoiding-fence-tree-and-building-disputes/avoiding-disputes-about-trees>.

    ↑

25. Dispute Settlement Centre of Victoria, Trees (25 September 2017) <www.disputes.vic.gov.au/trees>.

    ↑

26. Victoria Law Foundation, Neighbours, the Law and You: Your Guide to Neighbourhood Laws in Victoria (March 2015)
    
    <www.victorialawfoundation.org.au/sites/default/files/resources/neighbours_the_law_and_you_2016_web.pdf>.

    ↑

27. Ibid 4.

    ↑

28. Naomi Saligari (ed), The Law Handbook 2017: Your Practical Guide to the Law in Victoria (Fitzroy Legal Service, 39th ed, 2016) 528–9.

    ↑

29. See discussion of these materials above at [3.31]–[3.38].

    ↑

30. Preliminary consultations with Arboriculture Australia (17 August 2017) and Victorian Tree Industry Organisation (VTIO) (22 August 2017).

    ↑

31. The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system.
    
    The AQF is the agreed policy of Commonwealth, State and Territory ministers: Australian Qualifications Framework, What is the AQF? <www.aqf.edu.au/what-is-the-aqf>.

    ↑

32. Despite the framework of qualifications, the arboricultural industry is unregulated, which has led to instances of underqualified people performing low-quality assessments and works. For this reason, Arboriculture Australia, the national peak body for arborists, has introduced a voluntary industry licence to promote quality of practice: Arboriculture Australia, Australian Arborist Industry Licence Information Brochure (2017) <http://arboriculture.org.au/>.

    ↑

33. Preliminary consultations with Arboriculture Australia (17 August 2017) and Victorian Tree Industry Organisation (VTIO) (22 August 2017).

    ↑

34. City of Kingston, Arboricultural Reporting Guidelines for Planning and Developments (25 June 2013) 1 <www.kingston.vic.gov.au/Home>.

    ↑

35. Dispute Settlement Centre of Victoria, Frequently Asked Questions: Trees (January 2017) <www.disputes.vic.gov.au/information-and-advice/trees/frequently-asked-questions-trees>.

    ↑

36. ‘The DSCV will send a letter with a Department of Justice & Regulation letterhead requesting that the person call the centre to discuss the issue further’: Dispute Settlement Centre of Victoria, DSCV FAQs (19 September 2017) <www.disputes.vic.gov.au/information-and-advice/dscv-faqs>.

    ↑

37. Considerations include: whether both parties genuinely want to resolve the dispute; whether the parties are able to understand and participate in the mediation process; the level of vulnerability of either party, eg mental health issues; whether either party has expressed fear of the other party, or has been harmed or threatened with violence by the other party; any previous failed attempts at mediation; whether the issue is substantial enough to mediate: Dispute Settlement Centre of Victoria, Mediation (27 September 2017)
    
    <www.disputes.vic.gov.au/about-us/mediation>.

    ↑

38. The DSCV site explains that mediations are ‘highly successful’, noting that 85 per cent of mediations result in agreements: Dispute Settlement Centre of Victoria, About Us (2 October 2017) <www.disputes.vic.gov.au/about-us>.

    ↑

39. Parties are informed by DSCV that their written mediation agreements may be drawn up into a formal written contract by an external legal practitioner: email from Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 16 October 2017.

    ↑

40. This is only available for some Magistrates’ Courts, and is limited to civil claims under $40,000: Dispute Settlement Centre of Victoria, Civil Claims Program (27 September 2017) <www.disputes.vic.gov.au/about-us/civil-claims-program>.

    ↑

41. Email from Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 16 October 2017.

    ↑

42. Cases are assigned one main issue type upon intake with the DSCV. Many disputes involve multiple issues: these statistics reflect disputes that were categorised on intake as relating to ‘trees’, ‘shrubs’ or ‘creepers’. These disputes are collectively referred to as ‘tree disputes’ for the purpose of analysing DSCV’s practices.

    ↑

43. Email from Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 10 August 2017.

    ↑

44. The information provided by DSCV notes that the average approach rate across all dispute types is 15–25%.

    ↑

45. Ibid. DSCV notes that the overall resolution rate across all disputes is around 15–16%, and that tree disputes thus have a low resolution rate.

    ↑

46. Email from Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 10 August 2017.

    ↑

47. Ibid. Commentary from DSCV estimates that the number of enquiries in spring is roughly 1.8–2 times than the amount received in winter.

    ↑

48. Magistrates’ Court of Victoria, Commencing Civil Proceedings (1 February 2013) <www.magistratescourt.vic.gov.au/jurisdictions/civil/procedural-information/commencing-civil-proceedings>.

    ↑

49. Magistrates’ Court Act 1989 (Vic) s 100(1)(a)–(b); 3(1) (‘jurisdictional limit’).

    ↑

50. Current values are set out in the Magistrates’ Court of Victoria, Court Fees and Costs Ready Reckoner (effective 1 July 2017).

    ↑

51. Ibid.

    ↑

52. County Court Act 1958 (Vic) s 37.

    ↑

53. County Court Civil Procedure Rules 2008 (Vic) O 34A.03(b)(i).

    ↑

54. To file an originating motion.

    ↑

55. Eg Hiss v Galea [2012] VCC 2010 (21 December 2012); Marshall v Berndt [2011] VCC 384 (7 April 2011). Order 34A of the County Court Civil Procedure Rules 2008 (Vic) provides a framework for the management of all civil litigation by the County Court.

    ↑

56. County Court of Victoria, Fees (effective 1 July 2017) <www.countycourt.vic.gov.au/fees>.

    ↑

57. Constitution Act 1975 (Vic) s 85.

    ↑

58. See Barton v Chhibber (1988) Aust. Torts Reports 67, 745.

    ↑

59. Pursuant to the Supreme Court (Fees) Regulations 2012 (Vic) sch pt 1.

    ↑

60. Public Health and Wellbeing Act 2008 (Vic) s 61.

    ↑

61. Ibid ss 62(2)–(4).

    ↑

62. Ibid s 62(3)(b). This is discussed further at [4.92]–[4.96].

    ↑

63. Fences Act 1968 (Vic) s 9.

    ↑

64. Ibid s 13 Part 4.

    ↑

65. Catchment and Land Protection Act 1994 (Vic) s 70.

    ↑

66. Country Fire Authority Act 1958 (Vic) s 41. This notice is usually issued outside metropolitan areas. See Chapter 4 for further discussion of Victorian legislative schemes governing the removal of trees on private land.

    ↑

67. Electricity Safety Act 1998 (Vic) ss 84B, 86(1), 86(5)–(7). See also Electricity Safety (Electric Line Clearance) Regulations 2015 (Vic), sch 1 and Energy Safe Victoria, Managing Trees near Powerlines (2017) <www.esv.vic.gov.au/technical-information/electrical-installations-and-infrastructure/managing-trees-near-powerlines/>.

    ↑

68. See Chapter 3 for discussion of types of tree disputes.

    ↑

69. Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Final Report No 129 (2015) [16.23]. Unlike statute law, common law rules are not set out in a single document, but rather are contained in the judgments of a range of courts and tribunals.

    ↑

70. Ibid [16.21].

    ↑

71. Ibid.

    ↑

72. Marshall v Berndt [2011] VCC 384 (7 April 2011) 15.

    ↑

73. Loane Skene and Harold Luntz, ‘Effects of Tort Law Reform on Medical Liability’ (2005) 79 Australian Law Journal 345–63. As explained by the Australian Law Reform Commission, ‘Despite their common law origins, most tort actions are subject to some statutory variation of the common law principles by state and territory legislation. Numerous statutes limit actions or defences, provide limitation periods, cap or exclude awards of damages, and provide for survival of actions’: Australian Law Reform Commission, Traditional Rights and Freedom —Encroachments by Commonwealth Laws, Final Report No 129 (2015) 434–5, n 38.

    ↑

74. See, eg, Wrongs Act 1958 (Vic) pt X, but note that statutory amendments do not override or affect common law principles associated with negligence: Wrongs Act 1958 (Vic) s 47. Generally speaking, alterations stemming from law reform have sought to restrict the scope of liability: Loane Skene and Harold Luntz, ‘Effects of Tort Law Reform on Medical Liability’ (2005) 79 Australian Law Journal 345–63. But see s 63 of the Wrongs Act 1958 (Vic) which broadens the defence of contributory negligence so that it may fully defeat a claim.

    ↑

75. But only to the extent each is relevant to resolving tree disputes. The tort of negligence, for example, is an extremely complex and technical area of law which will not be discussed in its entirety in this paper.

    ↑

76. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 185.

    ↑

77. Unless the context indicates otherwise, all references to ‘nuisance’ should be taken to refer to the tort of private nuisance.

    ↑

78. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 508.

    ↑

79. Ibid 487.

    ↑

80. Samantha Hepburn, Principles of Property Law (Cavendish Publishing Pty Ltd, 1998) 1.2.1; Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.70]–[21.80].

    ↑

81. Hargrave v Goldman (1963) 110 CLR 40; Hunter v Canary Wharf Ltd [1997] AC 655; Robson v Leischke [2008] NSWLR 98

    ↑

82. Robson v Leischke (2008) 72 NSWLR 98, 91.

    ↑

83. Ibid; St Helen’s Smelting Co v Tipping (1865) 11 ER 1483. It is generally accepted that interference resulting in personal injury has been absorbed by the law of negligence: see Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42 where the High Court of Australia absorbed the rule in Rylands v Fletcher [1866] LR 1 Ex at 280 into the tort of negligence. See also Robson v Leischke [2008] NSWLR 98 [49]. Trindade and Cane elaborate that ‘claims for past personal injury or damage to property framed as nuisance are ‘likely to be treated as … claim[s] in negligence’. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 216. Contrary to this, some case law has still not dismissed nuisance as an appropriate cause or action for personal injury: see, eg, Pelmonthe v Phillips (1889) 20 LR(NSW)(L) 58 and Wilson v New South Wales Land and Housing Corp [1998] ANZ Conv R 623, which assert that nuisance may be successfully relied on where negligence has not been made out. Negligence is discussed further at [3.164]–[3.203].

    ↑

84. A person must bring action within the timeframe set out in the Limitations of Actions Act 1958 (Vic) s 5(1)(a).

    ↑

85. As expressed in Robson v Leischke [2008] NSWLR 98 [91]. Standing refers to ‘the entitlement of a person or organisation to involve the jurisdiction of the court to hear a case’: Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis, 3rd ed, 2004) ‘standing’.

    ↑

86. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.4].

    ↑

87. Stockwell v Victoria [2001] VSC 497 (17 December 2001) [241]; Robson v Leischke [2008] NSWLR 98.

    ↑

88. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.140]. The landlord will not have standing to sue for a temporary interference (e.g. seasonal leaf litter) but will have standing to sue for interference that causes permanent damage, such as structural damage due to encroaching roots.

    ↑

89. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.2.6].

    ↑

90. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 497.

    ↑

91. See, eg, Wilson v Farah [2017] NSWLEC 1006 (10 January 2017) but note this was decided under the Trees (Disputes Between Neighbours) Act 2006 (NSW).

    ↑

92. See, eg, Leonardi v Watson [2015] QCATA 192 (22 December 2015) but note this was decided under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

    ↑

93. See, eg, Marsh v Baxter [2015] WASCA 169 (3 September 2015).

    ↑

94. Ibid.

    ↑

95. Although, in this case, nuisance was not found on two grounds: (1) the organic farm was unduly sensitive to de-certification and (2) the mere presence of GM canola seeds, which had not yet germinated and could be easily identified and thus removed, did not amount to interference that was unreasonable: ibid [775]–[789].

    ↑

96. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.80].

    ↑

97. Bamford v Turnley (1862) 3 B & S 66; 122 ER 27, 83–84 (B & S), 32–33 (ER) (Bramwell B).

    ↑

98. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.2.2].

    ↑

99. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 499 n 98 citing American Law Institute, Restatement (Second) of the Law of Torts 2d (1965) § 822. In other words, ‘there must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant and dainty habits of living but according to plain and sober notions among ordinary people’: Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 500 citing Walter v Selfe (1851) De G & Sm 315, 322.

    ↑

100. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.90]–[21.110].

     ↑

101. Ibid 502. As elaborated by the House of Lords decision of Colls v Home & Colonial Stores [1904] AC 179 [185] ‘[a] dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as if [they] lived in the country, and distant from other dwellings’.

     ↑

102. This proposition is often expressed as ‘coming to a nuisance’ for which there is no defence: Sturges v Bridgman (1879) 11 Ch D 852; Bliss v Hall (1838) 4 Bing NC 183. See [3.150] for further detail. Furthermore, there is no also no defence on the basis that the activities causing the interference are of benefit to the public or community where it is unreasonable: Munro v South Dairies Ltd [1955] VLR 332.

     ↑

103. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.2.5].

     ↑

104. Halsey v Esso Petroleum Ltd [1961] 2 All ER 145; Seidler v Luna Park Reserve Trust (Unreported, Supreme Court of New South Wales, Hodgson J, 21 August 1995); McKenzie v Powley [1916] SALR 1; Haddon v Lynch [1911] VLR 230.

     ↑

105. Robson v Leischke [2008] NSWLR 98 [84]. As explained in the English case Robinson v Kilvert (1889) 41 Ch D 88 [97] per Lopes LJ, ‘a [person] who carries on an exceptionally delicate trade cannot complain because it is injured by [their] neighbour’s doing something lawful on [their] property, if it is something which would not injure anything but an exceptionally delicate trade’.

     ↑

106. Hollywood Silver Fox Farm v Emmett [1936] 1 All ER 825; Christie v Davey [1839] 1 Ch 316.

     ↑

107. See, eg, Robson v Leischke [2008] NSWLR 98; City of Richmond v Scantelbury [1991] 2 VR 38; Sedleigh-Denfield v O’Callaghan [1940] AC 880; Bennetts v Honroth [1959] SASR 170; Pemberton v Bright [1960] 1 WLR 436; Crowhurst v Amersham Burial Board (1878) 4 Ex D 5.

     ↑

108. [1991] 2 VR 38. The tree owner in this case was a council.

     ↑

109. Or alternatively, negligence.

     ↑

110. The matter was originally determined in the Magistrates’ Court of Victoria where the tree owner was ordered to pay the affected neighbour $19,507 in damages. The tree owner then sought a review of this order in the Supreme Court of Victoria and was successful: City of Richmond v Scantelbury [1991] 2 VR 38, 39, 47–8.

     ↑

111. Young v Wheeler [1987] Aus Torts Reps 80–126; Robson v Leischke [2008] NSWLR 98 citing Asman v MacLurcan (1985) 3 BPR 9592.

     ↑

112. St Helen’s Smelting Co v Tipping (1865) 11 ER 1483; Kraemers v Attorney-General (Tas) [1966] Tas SR 113, 122–3; Corbett v Pallas [1995] Aust Torts Reps 81–326 [62,241].

     ↑

113. See [3.112]–[3.118] for further discussion of these factors.

     ↑

114. Robson v Leischke [2008] NSWLR 98 [58].

     ↑

115. Ibid [76].

     ↑

116. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) [21.160]; Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.5].

     ↑

117. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 511.

     ↑

118. Legal Services Commission of South Australia, Trees and the Law (May 2016) 5 <www.lsc.sa.gov.au/cb_pages/publications.php#Neighbours(fences,trees,noiseetc)>; City of Richmond v Scantelbury [1991] 2 VR 38, 40, 45.

     ↑

119. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 200; De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498.

     ↑

120. ‘Highly likely’ is taken to mean ‘certain’ or ‘virtually certain’: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, (2012) 201. See also Smith v Scott [1973] Ch 314; De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498.

     ↑

121. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 513.

     ↑

122. Ibid; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486.

     ↑

123. Fennel v Robson Excavations [1977] 2 NSWLR 486 (CA); Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 509.

     ↑

124. Whether the subject tree is sown or naturally occurring has no bearing: City of Richmond v Scantelbury [1991] 2 VR 38; Robson v Leischke (2008) 72 NSWLR 98.

     ↑

125. Ibid.

     ↑

126. Ibid [49]–[50]. Constructive knowledge is inferred from facts and circumstances. It differs from actual knowledge which is tested subjectively and is a question of fact: Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis, 3rd ed, 2004) ‘actual knowledge’ and ‘knowledge’.

     ↑

127. Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478.

     ↑

128. Robson v Leischke [2008] NSWLR 98 [102] citing Bruce v Caulfield (1918) 34 TLR 204 [205].

     ↑

129. City of Richmond v Scantelbury [1991] 2 VR 38 citing Sedleigh-Denfield v O’Callaghan [1940] A.C. 880; Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617.

     ↑

130. City of Richmond v Scantelbury [1991] 2 VR 38.

     ↑

131. Goldman v Hargrave [1967] 1 AC 645; Stockwell v State of Victoria [2001] VSC 497 (17 December 2001).

     ↑

132. City of Richmond v Scantelbury [1991] 2 VR 38, 46–7.

     ↑

133. Solloway v Hampshire County Council (1981) 79 LGR 449, but note that there are some cases where, despite taking precautions against the nuisance, an occupier of a premises may still be found liable, especially in cases where the occupier makes the premises available for hire for a particular purpose. In these cases, the occupier will be responsible for any nuisance caused by the hirer who carries out that purpose: De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498.

     ↑

134. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487, 510.

     ↑

135. Hammersmith Rly v Brand (1869) LR 4 HL 171; York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391; Cohen v City of Perth (2000) 112 LGERA 234.

     ↑

136. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.220].

     ↑

137. Cohen v City of Perth (2000) 112 LGERA 234.

     ↑

138. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.240].

     ↑

139. Wrongs Act 1958 (Vic) Part V.

     ↑

140. Ibid s 26(1); Stockwell v State of Victoria [2001] VSC 497 (17 December 2001) [624], [626].

     ↑

141. Stockwell v State of Victoria [2001] VSC 497 (17 December 2001) [624], [626]; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478, 486, but note that in both cases, the Court did not find contributory negligence.

     ↑

142. Wrongs Act 1958 (Vic) s 26(1)(b).

     ↑

143. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.240].

     ↑

144. Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478, 486 citing Davey v Harrow Corporation [1958] 1 QB 60.

     ↑

145. Paula Giliker, ‘Nuisance’ in Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (Lawbook Co., 10th ed, 2011) 487 [21.240]. For example, an affected neighbour cannot be expected to stop parking their car in their usual spot in order to mitigate the risk of a branch falling and damaging the car.

     ↑

146. Ibid.

     ↑

147. Ibid [21.270].

     ↑

148. Ibid.

     ↑

149. An injunction must clearly identify how it is to be complied with. Injunctions must not be impossible to comply with and, if the terms of the injunction are not followed, its compliance must be able to be easily enforced: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [5.1.7.1].

     ↑

150. Interference that is temporary or on a one-off basis is more suited to damages: see [3.157]–[3.163].

     ↑

151. Known as a ‘quia timet’ injunction: Latin meaning ‘because he or she fears’: Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis, 3rd ed, 2004) ‘quia timet’.

     ↑

152. Robson v Leischke [2008] NSWLR 98, [58], [67]. An affected neighbour may also seek an injunction before the hearing (an interlocutory injunction), but only if there is a ‘serious question to be tried’ and if it is appropriate on ‘the balance of convenience’ to restrain the tree owner in such a way before the hearing: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 [19].

     ↑

153. Teck H Ong, ‘Equitable Damages: A Powerful but Often Forgotten Remedy’ (1999/2000) 4(2) Deakin Law Review 61, 63; Overseas Tankship (UK) Ltd v Miller Steamship Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. This remedy is particularly suitable for tree disputes where an injunction would be ineffective, such as when the dispute concerns interferences causing damage to property.

     ↑

154. Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ’10 Damages’ [33.10.10].

     ↑

155. Asman v MacLurcan (1985) 3 BPR 9592 at 9594; Robson v Leischke [2008] NSWLR 98.

     ↑

156. Hunter v Canary Wharf Ltd [1937] AC 655, 706; Robson v Leischke [2008] NSWLR 98 [216].

     ↑

157. Soltau v De Held (1851) 2 Sim (NS) 133, 158; Young v Wheeler (1987) Aus Torts Reps 80–126; McKenzie v Powley [1916] SALR 1. This decrease in value can, however, act as a measure of the seriousness of the nuisance. This is because damages for nuisance seek to provide relief for infringement of the right to use and enjoyment of the land. The assessment of this interference is based on the level of discomfort or annoyance caused to the person and is thus a subjective assessment.

     ↑

158. Manson v Shire of Maffra (1881) 7 VLR(L) 364.

     ↑

159. Supreme Court Act 1986 (Vic) s 38.

     ↑

160. Wrongs Act 1958 (Vic) s 26(1)(b). See discussion above at [3.146]–[3.149].

     ↑

161. Overseas Tankship (UK) Ltd v Miller Steamship Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617.

     ↑

162. See [3.156] for discussion of injunctions for future damage.

     ↑

163. Leeds Industrial Co-op Society Ltd v Slack [1924] AC 851; Barbagallo v J&F Catelan Pty Lrd [1986] 1 Qd R 245; Supreme Court Act 1986 (Vic) s 38; Teck H Ong, ‘Equitable Damages: A Powerful but Often Forgotten Remedy’ (1999/2000) 4(2) Deakin Law Review 4(2) 61.

     ↑

164. Wrongs Act 1958 (Vic) s 43.

     ↑

165. Robson v Leischke [2008] 72 NSWLR 98 [93]; Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 122; Hargrave v Goldman (1963) 110 CLR 40, 62, (Windeyer J).

     ↑

166. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 653; Bolton v Stone [1951] AC 850 cf Miller v Jackson [1977] QB 966.

     ↑

167. See, eg, Timbs v Shoalhaven City Council (2004) 132 LGERA 397, but note that the subject tree was on council land. See also Dudley v Meadowbrook Inc 166 A2d 743 (Wash, 1961), a case from Washington DC, US where a neighbouring tree fell and caused damage to property; Kurtigian v City of Worcester 348 N.E.2d 284 (Mass, 1964–1965), a case from Massachusetts, US where a council tree fell onto neighbouring private property injuring the landowner.

     ↑

168. See, eg, Dimitrios Michos v Council of the City of Botany Bay (2012) 189 LGERA 25 [634]–[65]; Marshall v Berndt [2011] VCC 384 (7 April 2017) [234]; Owners Corporation SP020030 v Keyt [2016] VCC 1656 (24 October 2016).

     ↑

169. Dimitrios Michos v Council of the City of Botany Bay (2012) 189 LGERA 25.

     ↑

170. Robson v Leischke [2008] 72 NSWLR 98; Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 653 and see above for why nuisance is not suited to pursue legal action for personal injury.

     ↑

171. Although, in these cases, the discussion of negligence and how it is applied to the facts at hand is often brief and succinct; most probably due to the fact that negligence is usually argued in the alternative to nuisance and most of the court’s analysis is concerned with the nuisance claim. See, eg, Owners Corporation SP020030 v Keyt [2016] VCC 1656 (24 October 2016) [64] where Jordan J states of the negligence claim argued by the affected neighbour in addition to nuisance, ‘In view of what I have concluded as to nuisance, it is not necessary to separately discuss the question of the tort of negligence at any length. But lest there is any doubt about the matter, I am satisfied on the balance of probabilities that the loss and damage caused to the plaintiff is as a result of breach of the duty of care owed to the plaintiff by the defendant.’

     ↑

172. Personal injury caused by trees situated on public land is more common. See, eg Secretary to the Department of Natural Resources & Energy v Harper [2000] VSCA 36 (29 March 2000).

     ↑

173. Litigation is more common in cases where personal injury is caused by council-owned trees on public land, especially in context of motor vehicle accidents: see, eg, Robson v Leischke [2008] 72 NSWLR 98 [81].

     ↑

174. See [2.54]–[2.71].

     ↑

175. New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998); Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015). The NSW and Queensland statutory schemes are discussed in more detail at [5.14]–[5.53]. For cases where personal injury was alleged, see, eg, Leonardi v Watson [2015] QCATA 192 (22 December 2015); Yang v Scerri [2007] NSWLEC 592 (21 August 2007).

     ↑

176. Limitations of Actions Act 1958 (Vic) s 27D.

     ↑

177. Ibid s 5(1)(a).

     ↑

178. Wrongs Act 1958 (Vic) s 48; Dimitrios Michos v Council of the City of Botany Bay (2012) 189 LGERA 25 [65] citing Robson v Leischke [2008] 72 NSWLR 98 [93].

     ↑

179. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 151; Donoghue v Stevenson [1932] AC 562.

     ↑

180. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011)151. See also Robson v Leischke [2008] NSWLR 98 [93].

     ↑

181. Robson v Leischke [2008] NSWLR 98 [96]; Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 126. As Gillard J states in Stockwell v State of Victoria [2001] VSC 497 (17 December 2001) [392], ‘authorities in the past have established that in certain circumstances, an occupier of property owes a duty of care to an adjoining land owner to avoid damage, resulting from something moving onto an adjoining property by reason of some action or inaction on the first property’.

     ↑

182. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 151.

     ↑

183. This double negative is a statutory formulation: see Wrongs Act 1958 (Vic) s 48(1)(b). Risks that are ‘not insignificant’ are those that are ‘not far-fetched or fanciful’: Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47–8 (Mason J). See also Wrongs Act 1958 (Vic) s 48(3)(a).

     ↑

184. Wrongs Act 1958 (Vic) s 48(2).

     ↑

185. A phrase stemming from Judge Learned Hand’s judgment in the US case of United States v Carrol Towing Co 159 F 2d 169 (2nd Cir 1947).

     ↑

186. See, eg, Schiller v Gregory (1985) Aus Torts Reps 80–751; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Inverell Municipal Council v Pennington (1993) Aus Torts Reps 81–234; Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337. Courts have also developed principles to infer negligent conduct: see generally Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) ch 8.7.

     ↑

187. Wrongs Act 1958 (Vic) s 43.

     ↑

188. Cf mental harm, which is a separate category of harm: see Wrongs Act 1958 (Vic) Part XI and Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) Ch 9.4.

     ↑

189. Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis Butterworths, 3rd ed, 2004) ‘economic loss’.

     ↑

190. In some situations, a person may have indeed breached the duty of care they owed the plaintiff and caused them harm but this will not confer liability in negligence on them unless causation and remoteness are made out: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [10.1].

     ↑

191. Wrongs Act 1958 (Vic) s 52.

     ↑

192. Ibid s 51(1)(a). This provision comprises the common law ‘but for’ test.

     ↑

193. Ibid s 51(1)(b).

     ↑

194. Ibid s 51(1)(a).

     ↑

195. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [10.2.1].

     ↑

196. Ibid [8.7.4].

     ↑

197. Leonardi v Watson [2015] QCATA 192 (22 December 2015), but note that this case concerned an action under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

     ↑

198. Eg, where the tree owner’s negligent conduct cannot readily be attributed to the harm. Other complex circumstances include: where there is a failure to warn; alternative, multiple or hypothetical causes; intervening causes that break the chain of causation (novus actus interveniens) or where there is no medical or scientific knowledge currently available to provide evidence for the causal link: See generally Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 232–239; Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [8.7], [10.3].

     ↑

199. Wrongs Act 1958 (Vic) s 51(2).

     ↑

200. Loane Skene and Harold Luntz, ‘Effects of Tort Law Reform on Medical Liability’ (2005) 79 Australian Law Journal 345–63, 355; Wrongs Act 1958 (Vic) s 51(1)(b). Determining remoteness on the basis of factual causation alone has been criticised for ‘cast[ing] its net too widely’, as it more often than not leads to a positive finding of negligence: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 535. See also Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 231; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

     ↑

201. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 245.

     ↑

202. Ibid 259.

     ↑

203. Overseas Tankships (UK) v Morts Dock & Engineering Co (Wagon Mound No 1) [1961] AC 388.

     ↑

204. Ibid.

     ↑

205. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [10.3.4.3].

     ↑

206. Bruce v Caulfield (1918) 34 TLR 204, 205; Noble v Harrison [1926] 2 KB 332, 336–339; Caminer v Northern & London Investment Trust Ltd [1951] AC 88, 96, 99, 103–104; Dungog Shire Council v Babbage (2004) 134 LGERA 349 [85].

     ↑

207. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) [9.180]; Commissioner of Railways (WA) v Stewart (1936) 56 CLR 520. An act of God is ‘an event or occurrence due to natural causes which occurs independently of human intervention and either could not be foreseen, or if foreseen, could not be reasonably guarded against. Examples include a storm or earthquake: Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis, 3rd ed, 2004) ‘act of God’.

     ↑

208. Robson v Leischke (2008) 72 NSWLR 98; Noble v Harrison [1926] 2 KB 332, 336, 339; Caminer v Northern & London Investment Trust Ltd [1951] AC 88, 96, 99, 103–104; Dungog Shire Council v Babbage (2004) 134 LGERA 349 at 377 [85].

     ↑

209. Wrongs Act 1958 (Vic); Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) [12.30].

     ↑

210. Wynberg v Hoyts Corp Pty Ltd (1997) 72 ALJR 65 (HCA). However, unlike contributory negligence in a nuisance claim, liability for negligence can also be fully defeated by contributory negligence if the court thinks it just and equitable to do so: Wrongs Act 1958 (Vic) s 63. See discussion of contributory negligence at [3.146]–[3.149]; unless otherwise expressly stated, the same principles apply.

     ↑

211. This defence is also known by the Latin maxim volenti non fit injuria: Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘9 Defences’ [33.9.880] citing R P Balkin and J L R Davis, Law of Torts (Lexis Nexis Butterworths, 5th ed, 2013) [10.27], the second edition of which is cited in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 (Kirby J). See also Monie v Commonwealth [2007] NSWCA 230 [75]–[76] (Campbell JA); Wrongs Act 1958 (Vic) ss 53–54.

     ↑

212. Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘9 Defences’ [33.9.910]; Commissioner of Insurance (Qld) v Joyce (1948) 77 CLR 39.

     ↑

213. Unless the affected neighbour can prove, in turn, on the balance of probabilities that they were in fact not aware of the risk. An ‘obvious risk’ is a risk that would have been obvious to a reasonable person in the position. They include ‘risks that are patent or a matter of common knowledge’. Furthermore, a risk can be obvious even if it ‘has a low probability of occurring’ and ‘is not prominent, conspicuous or physically observable’. A risk will not be obvious if the risk is created because a person has failed to properly ‘operate, maintain, replace, prepare or care for’ an item or ‘living thing’ unless ‘the failure itself is an obvious risk’: Wrongs Act 1958 (Vic) s 53.

     ↑

214. Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘9 Defences’ [33.9.880] citing Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Zalewski v Turcarolo [1995] 2 VR 562. See also Miller v Miller [2011] 242 CLR 446.

     ↑

215. Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘9 Defences’ [33.9.980]. At a minimum, a causal relationship must exist between the harm suffered and the illegal activity. If the harm suffered and the illegal activity are independent of one another, then claiming a defence based on illegal activity will not be successful. A common example given is that of a burglar who suffers a motor vehicle collision on a highway while in commission of theft. The harm suffered by the burglar is independent to the crime they committed: Thomson Reuters Westlaw, The Laws of Australia (at June 2016) 33 Torts, ‘9 Defences’ [33.9.910].(Jacobs JA).

     ↑

216. Wrongs Act 1958 (Vic) s 14G; Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 624; Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) [12.440].

     ↑

217. A good samaritan, acting in good faith and without financial reward, can rely on s 31B of the Wrongs Act 1958 (Vic) to relieve themselves of liability. Section 37 provides a similar defence for volunteers engaged in community work; liability is conferred onto the community organisation for which they volunteer. See generally Wrongs Act 1958 (Vic) pts VIA, IX. However, exceptions may apply to volunteers: see Wrongs Act 1958 (Vic) s 38.

     ↑

218. Eg, medical expenses, loss of earning capacity.

     ↑

219. Eg, loss of amenity (ie enjoyment of life), pain and suffering.

     ↑

220. Eg, ‘In Victoria the threshold for non-economic loss requires the plaintiff to have suffered a “significant injury”. Significant injury is defined in s 28LF and depends on assessment of the degree of impairment, according to a procedure laid down, by an approved medical practitioner or a medical panel.’: Loane Skene and Harold Luntz, ‘Effects of Tort Law Reform on Medical Liability’ (2005) 79 Australian Law Journal 345–63, 358–9. See also Wrongs Act 1958 (Vic) parts VA, VB, VBAA and VBA.

     ↑

221. A number of forms of trespass exist, including to land, property and to the person. For the purposes of this paper, and unless the context indicates otherwise, all references to ‘trespass’ should be considered to mean ‘trespass to land’.

     ↑

222. Rodrigues v Ufton (1894) 20 VLR 539, 543–4; Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 154–5.

     ↑

223. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.1].

     ↑

224. See, eg, Gazzard v Hutchesson (1995) Aust Torts Reports 81–337. Abatement is discussed in further detail at [3.17]-[3.26].

     ↑

225. Plenty v Dillon (1991) 171 CLR 635 citing Lord Camden LCJ in Entick v Carrington (1765) 19 St. Tr. 1029, 1066.

     ↑

226. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 50. A person must bring legal action within six years of the date the trespass occurred: Limitation Of Actions Act 1958 (Vic) s 5(1)(a).

     ↑

227. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 166 citing League against Cruel Sports v Scott [1986] 1 QB 240, 252 where it was held that an ‘indifference to the risk’ of trespass amounted to sufficient intention. Where the trespass is careless, negligent trespass may be a more suitable cause of action: Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘8 Trespass and Intentional Torts’ [33.8.490].

     ↑

228. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.5.3].

     ↑

229. (1995) Aust Torts Reports 81–337, 62, 360.

     ↑

230. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 56 citing Lemmon v Webb [1894] 3 Ch 1. See [3.97]–[3.163] for further discussion on nuisance.

     ↑

231. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.2]

     ↑

232. Ibid 163.

     ↑

233. Thomson Reuters Westlaw, The Laws of Australia (at 1 June 2016) 33 Torts, ‘8 Trespass and Intentional Torts’ [33.8.330, 33.8.470].

     ↑

234. Re-entry onto land and lawful authority are also defences to trespass to land but are not discussed here.

     ↑

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

     ↑

236. An affected neighbour will not be liable for trespass where they had consent to act in the way that they did. Consent can be express or implied. Common examples of implied consent are entering a driveway and knocking on a neighbour’s door to speak to them: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.3].

     ↑

237. Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.5.2].

     ↑

238. Ibid [4.2.5.3]. The requirement of intent distinguishes these acts from acts of nuisance.

     ↑

239. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) citing Lincoln Hunt v Willesee (1986) 4 NSWLR 457.

     ↑

240. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 58.

     ↑

241. Ibid. Nominal damages are damages awarded when a legal right has been infringed but no real damage has been suffered: Teck H Ong, ‘Equitable Damages: A Powerful but Often Forgotten Remedy’ (1999/2000) 4(2) Deakin Law Review 61, 63.

     ↑

242. Gazzard v Hutchesson (1995) Aust Torts Reports 81–337, 62, 360: ‘contumelious disrespect for the rights of the enjoyment by the [tree owner]’.

     ↑

243. Ibid 81–337.

     ↑

244. Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 58 citing Svingos v Deacon (1971) 2 SASR 126; Hogan v Wright [1963] TA SR 44.

     ↑

245. Eg, a tenant will only be able to recover damages for any interference with their exclusive possession of the land rather than any permanent damage to the reversionary interest. The owner, however, may sue the neighbour who trespasses on land and causes damage for: action on the case for damages; damage of a permanent character to reversionary interest after the expiration of the license or tenancy; or other proprietary remedies: Kit Barker, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) [4.2.2]; Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) [3.50].

     ↑