Neighbourhood Tree Disputes: Report (html)

11. New owners of land and neighbourhood tree disputes

Introduction

11.1 Tree disputes and associated issues can continue after the sale of the land of the tree owner or the affected neighbour. Acts in New South Wales, Queensland and Tasmania set out the legal position when land that is the subject of a tree dispute is sold. They shift the responsibility and benefits of tree dispute orders to new owners. The way that this is done differs in each State

11.2 This chapter describes key elements of the interstate Acts. It then considers community responses to the questions posed in the consultation paper. It concludes with recommendations about how rights and obligations that arise in pre-existing disputes should apply where land is bought and sold; and concludes that a searchable database of orders is not required in Victoria.

New South Wales

Affected neighbour must inform new tree owners

11.3 In New South Wales a new tree owner will be bound by pre-existing orders after title to the land has passed to them, provided that the affected neighbour (applicant) gave them a copy of the orders.^[1]

11.4 The Land and Environment Court of New South Wales (the Court) provides the affected neighbour with information about how to notify new tree owners of orders. Copies of orders are sent to the affected neighbour ‘with a standard letter advising the applicant of the provisions … and, as a consequence, the steps that the [affected neighbour] must take to ensure that the orders remain in force if the tree owner sells the property on which the tree is located’.^[2]

11.5 The NSW Act does not state whether the affected neighbour is required to give the new tree owner a copy of the order before transfer of land (or settlement) occurs.^[3] Any timelines in the orders re-commence when a copy of the order is given to the new tree owner.^[4]

How are purchasers informed?

11.6 One way that the New South Wales Act seeks to inform purchasers of land about orders is through local Council planning certificates, which can be inspected by purchasers during the sale of land process.^[5] The Environmental Planning and Assessment Regulations 2000 (NSW) require planning certificates to state whether an order has been made under the NSW Act but only where the local council has been notified.^[6] This is likely to occur because the NSW Act states that the Court must provide a copy of an order to ‘the council of the local government area in which the tree is situated’.^[7] The 2009 statutory review of the NSW Act found this to be an ‘appropriate safeguard for potential buyers of the property’.^[8]

11.7 The NSW Act does not provide penalties for failure to provide notice to purchasers about the existence of litigation or orders.^[9]

Sale of affected neighbour’s land

11.8 If the affected neighbour’s land is sold the new affected neighbour is entitled to the same benefits under the orders.^[10] This benefit only extends to the immediate successor in title. Orders for ongoing maintenance can last for the total duration of the new affected neighbours’ ownership but typically they are for a period of 12–18 months.^[11]

Change of ownership during tree dispute hearing

11.9 If a Court matter is still in progress when the land is sold, then the Court may make orders that take the change of ownership into account, such as requiring the original tree owner ‘to advise the new owners of the need to provide any necessary access for the purpose of quoting and undertaking the works’.^[12]

Joinder of parties

11.10 If a property has changed ownership over the period which the damage is said to have occurred, an applicant may make an application against the current owner/s but the former owner/s may be joined in the proceedings.^[13]

Queensland

Tree owner must inform new tree owners

11.11 The relevant provisions of the Queensland Act apply to land on which a tree the subject of an application or order is situated (the tree owner’s land).^[14] Therefore, the Queensland Act places an onus on the tree owner to ensure that the purchaser of their land is notified of an application or orders before they enter into a contract of sale.^[15] This shifts the burden of carrying out any orders onto the new tree owner once transfer of land occurs.^[16]

11.12 When a purchaser is given a copy of the application and then enters into a contract of sale, they are joined as a party to the QCAT proceeding.^[17] QCAT suggested that joinder does not happen automatically on entry into a contract of sale; the purchaser must be first put on notice.^[18]

11.13 Any period of time mentioned in the orders for carrying out the required work begins from the date of the transfer of land.^[19] Any ongoing maintenance orders lapse after 10 years.^[20]

11.14 The Queensland Act does not state what happens if the affected neighbour sells their land.

Failure to provide notice

11.15 A tree owner who fails to give copies of the application or orders to a purchaser before they enter into a contract of sale can incur a maximum penalty of 500 penalty units ($65,275).^[21] In addition, the purchaser will have the right to terminate the contract of sale and recover their deposit.^[22] If transfer of land occurs without the purchaser being given this information, then the original tree owner will remain liable to carry out the orders despite the change in ownership.^[23] These are significant incentives to provide notice to purchasers.

Notice to local councils

11.16 QCAT must give a copy of any order to the local government in the area in which the tree is situated as well as any government authority that appeared in proceedings.^[24]

Searchable database of orders

11.17 QCAT also administers a searchable tree orders register which is freely available. Any person, including prospective buyers, can search a property by its address or a party’s name to see if any tree on the land is subject to an order.^[25]

Tasmania

Both the tree owner and affected neighbour must inform purchasers

11.18 Prima facie the Tasmanian Act places the onus on both the tree owner and affected neighbour to inform purchasers of their respective land about any legal action taking place or orders made.^[26]

Joinder of parties

11.19 If either party decides to sell their land while a matter is in progress, they must give the purchaser a copy of the application and any information filed with the Resource Management and Planning Appeal Tribunal (RMPAT) or the order before the purchaser enters into a contract of sale.^[27] The Tasmanian Act provides that any person who is provided with notice is joined as a party when they enter into a contract for sale, and orders are binding on them.^[28]

11.20 On the day of settlement the purchaser is then bound by the orders as if they were the original land owner, to the extent the orders have not been carried out.^[29] Any period of time mentioned in the orders for carrying out the required work begins on the day of settlement.^[30]

11.21 A seller must notify RMPAT after a contract of sale has been entered into that the purchaser is joined as a party.^[31]

11.22 The Tasmanian Government has developed template forms to help vendors make the required disclosures.^[32] These can be downloaded from the Tasmanian Department of Justice’s webpage on tree disputes.^[33]

Notice to local councils

11.23 In Tasmania, local councils must be informed of any orders made by RMPAT pursuant to the Tasmanian Act.^[34] Information certificates provided by local councils to prospective purchasers under section 337 of the Local Government Act 1993 (Tas) provide details about any orders made.^[35] As explained in the Second Reading Speech to the Tasmanian Act:

These provisions will ensure that prospective purchasers of land on which problem plants are situated are aware that matters relating to plants may need to be dealt with in the future. This will also ensure that landholders who are affected by a plant will not, in most cases, be required to seek fresh orders if the owner of the plant fails to fulfil his or her obligations under the order before selling the property.^[36]

Failure to provide notice

11.24 Failure to provide copies of the application or orders to a purchaser before they enter into a contract of sale will result in a maximum penalty of 200 penalty units ($32, 600).^[37] In addition, the purchaser will have the right to terminate the contract of sale and recover their deposit before settlement.^[38] Where orders are not provided before the contract of sale is signed and those orders are not complied with before the transfer of land occurs, the original owner will remain liable for carrying out the orders, despite the fact that they no longer own the property.^[39] The Act allows the original owner access to the land to carry out this work.^[40]

Searchable database of orders

11.25 The Tasmanian Act provides for a publicly ‘searchable register of tree or hedge orders’, maintained by RMPAT.

11.26 This information includes ‘the terms of the order, when the order takes effect, when any work is required to be carried out and who is required to carry out the work’.^[41] However access to this database is more limited than in Queensland. Although any member of the community can search the database, they must submit an application to RMPAT and pay a fee and the search criteria is narrower.^[42]

Community responses—new owners of land

11.27 The consultation paper asked how a new Act should respond when land affected by a tree dispute application or order is bought and sold. Community responses generally supported:

• ensuring that purchasers are fully informed about existing disputes before they commit to buying the land

• ensuring that orders are able to be fulfilled after title changes to prevent relitigation of the same issues.

New affected neighbours

11.28 Issues may arise involving a new affected neighbour where:

• an order has not been fully complied with by the tree owner

• where there is an order for ongoing maintenance

• where an order stipulates shared responsibility for any tree works or maintenance.

11.29 The majority of people who provided responses supported binding a new affected neighbour to the outcome of pre-existing legal action.^[43] It was suggested that this would prevent the same dispute arising again and would promote closure.^[44]

11.30 Others emphasised the importance of notification. It was suggested that new affected neighbours should be bound only if they have been made aware of legal action and any orders prior to purchasing, such as through a real estate agent, or a Section 32 Vendor Statement under the Sale of Land Act 1962 (Vic)^[45]

11.31 One submission noted that there should be scope for new land owners to ‘bring in new ideas’ about how the tree could be managed despite existing orders. They suggested that a tree dispute with the original owner may have had interpersonal dimensions, so the introduction of new owners may bring interpersonal conflict to an end.^[46]Another suggestion was that compliance with an order should be optional because a new affected neighbour may not need it:

The new owner of a site for which the previous owners successfully achieved a determination as a response to dispute action may in turn appreciate the presence of the tree, and not wish to remove or jeopardise its future potential. It should be optional.^[47]

11.32 A small number of people thought new owners should not be bound by the outcome of legal action because they considered it would ‘be difficult to implement’^[48] and lead to unfairness.^[49]

New tree owners

11.33 A new tree owner may be affected by a pre-existing order requiring tree works or ongoing maintenance. The majority of responses to the consultation paper supported binding a new tree owner to the outcome of pre-existing legal action about trees on their land.^[50]

11.34 Arborist Dr Karen Smith thought that this was important because otherwise ‘legal action is wasted’.^[51] A tree disputes consultant in New South Wales supported binding new owners in this way:

By being bound by the outcome of legal action, consistency is maintained as is fairness to the original parties in the dispute. Additionally, as land is purchased by successors in title, so is the tree that is the subject of the dispute. I consider the success of the proposed statutory scheme to be its adjudicative nature and as such, any outcome of legal action should remain and run with the land. Unlike mediation, Court orders are enforceable, and the gravitas of the statutory scheme ensured…^[52]

11.35 One submission observed that the approach of binding new tree owners is consistent with planning law, where responsibility for complying with decisions or orders ‘runs with the land’.^[53] It was further noted that having orders that run with the land may be beneficial in urgent situations where time does not allow for fresh legal proceedings.^[54]

11.36 The Victorian Civil and Administrative Tribunal (VCAT) supported binding new owners of land to carry out existing orders. However, VCAT noted that it should not be required to play a role in implementing this process. VCAT also suggested that consideration be given to whether the order attaches to the land or the landowner. VCAT noted that if an order is to attach to the land to bind every subsequent owner or occupier, like section 124 of the Planning and Environment Act 1987 (Vic),^[55] this would need to be reflected in the Sale of Land Act 1962 (Vic).^[56]

11.37 Another submission stated that new tree owners should be bound only if they are made aware of any orders before buying the land, such as through information provided by a real estate agent.^[57] Some people suggested that if a new owner is able to come to a new arrangement with an affected neighbour^[58] or alter the original order with the affected neighbour’s cooperation,^[59] they should not be bound.

11.38 A small number of submissions stated that new tree owners should not be bound by legal action.^[60] One reason was that it would be too difficult to implement fairly.^[61]

When should the burden and benefit of orders pass to purchasers?

11.39 Community responses were mixed. Some stated that purchasers should only be bound at the point of transfer of title (or settlement).^[62] Others said this should occur when a contract for sale is entered into.^[63] A smaller number made alternative suggestions such after one year;^[64] following a ‘grace period’ after transfer of title;^[65] or once possession of the property is taken.^[66]

Informing potential purchasers

11.40 There was overwhelming support for a process to inform potential purchasers about legal action or orders before a sale is formally finalised.^[67]

11.41 Drawing on experience enforcing local laws and planning schemes, a number of local councils reported that notification is important so that purchasers are not surprised by obligations that pass to them with ownership.^[68]

11.42 Nillumbik Shire Council stated that it would be useful for purchasers of land to be made aware of any orders that put a positive obligation on them to carry out maintenance of vegetation on their land.^[69]

11.43 One community member stressed that proceedings underway at the time of sale must be disclosed because ‘purchasers need to know what they are buying into’.^[70] Another community member agreed that new owners ‘should be made aware as soon as possible [of] what[‘]s going on…’^[71]

11.44 Another suggested that if the purchaser does not wish to be responsible for carrying out any one-off orders that have not been complied with, then they should ensure the original owners carry out the works completely before transfer of title occurs.^[72]

How should notice be provided?

11.45 Some responses suggested a disclosure process that informs purchasers through a real estate agent;^[73] a signed disclosure statement^[74] or a Section 32 Vendor Statement.^[75] Baw Baw Shire Council suggested that a Section 32 Vendor Statement should include results of an arborist’s risk assessment for the problem tree.^[76]

11.46 A number of arborists at ArborCamp2018 supported an approach similar to that in the United Kingdom.^[77] In the UK, a vendor must complete a Seller’s Property Information Form on which they must provide detailed information about issues affecting their property, including historic, ongoing or likely disputes with neighbours.^[78] If inaccurate or misleading information is provided, the purchaser may be able to make a claim for compensation or refuse to complete the purchase.^[79]

Joining new parties to proceedings

11.47 The majority of community responses supported the idea of joining new owners to existing proceedings in VCAT. The Commission was told that the possibility of being joined as a party should be stated in the contract of sale.^[80]

11.48 Two people stated that purchasers should be joined as a party at the time they enter into a contract of sale.^[81] Another suggested that the purchaser should be joined when they take possession of the property.^[82]

11.49 A smaller number stated that purchasers should not be joined to pre-existing disputes.^[83] One alternative was that new tree owners sign an undertaking at sale and set aside a portion of the sale price to be held on trust to complete works in the order:

the new owners should sign a declaration that they will accept the result of any action currently underway and, that if the action was to be found against the vendor, the vendor would pay all costs. The vendor should also sign such an agreement and a reasonable portion of the sale fee should be held in trust to complete works, should any be required by an order. The party bringing the action should be liable for any loss caused by a portion of the sale fee being held in trust, if their action fails …^[84]

11.50 Pointon Partners stated that whether or not a new owner should be joined as a party to the hearing should be a matter for the parties to decide.^[85]

11.51 QCAT reported that matters regarding the joinder of new owners do not arise frequently in Queensland. If a joinder cannot be made under the Queensland Act then it may be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) instead.^[86] QCAT noted that purchasers tend to express annoyance when they are joined to proceedings.^[87] QCAT also explained that it does not have jurisdiction to make orders in relation to a previous tree owner and can only make orders in relation to current tree owners.^[88]

A searchable database

11.52 Most responses supported the establishment of a searchable database of orders.^[89] The City of Boroondara Council stated it would also provide neighbours with a good resource for monitoring trees in their area.^[90] The Land and Environment Court of New South Wales noted that a database could be a useful tool for notifying potential new owners of land about tree orders affecting their properties.^[91] Nillumbik Shire Council stated that a database administered by the decision-making body could reduce the burden on local councils because residents would be able to find information themselves online.^[92]

11.53 Responses were received about the broader benefits of a searchable database. A tree disputes consultant in New South Wales stated:

A searchable database of Orders relating to trees and … judgments should be made available in Victoria. This would give potential disputants a means of building their knowledge before approaching the scheme and ‘testing’ their dispute scenario against a variety of outcomes.^[93]

11.54 The City of Boroondara stated that the database could also assist people find determinations under planning schemes, which can be difficult to obtain.

11.55 Some people suggested limiting access to the database. One submission stated that a ‘small fee’ should apply for conducting a search of the database.^[94] Another stated that the database should not be available to the public and should only be searchable with permission or via a legal representative.^[95] Another observed that the database would likely be ‘expensive’.^[96]

11.56 Only one submission objected to the database:

Given that the contest over tree-related disputes is potentially highly charged and emotive without external influence, I see no reason why further publication is appropriate for the well-being of those involved.^[97]

The Commission’s conclusions—new owners of land

11.57 The new Act should specify the rights and obligations of new tree owners and new affected neighbours towards trees that have been the subject of a formal tree dispute proceeding in VCAT. This will bring finality to the tree dispute, certainty to the parties and avoid duplication of legal proceedings.

11.58 However, the system should not allow tree owners to bypass obligations by selling their property. In addition, it would be unfair to create a system where a purchaser is left with a significant burden for a problem that they did not create.

11.59 To address these issues, the new Act should:

• require relevant matters to be disclosed to potential purchasers before they commit to sale;

• ensure new affected neighbours can continue to benefit from orders

• avoid making the sale of land process more complex.

Providing certainty

11.60 If the new Act does not shift the burden and benefit of orders to new purchasers of land then previous resolutions would be worthless. The same tree disputes could go back to VCAT with the same result. Any scheme that duplicates legal proceedings or prolongs a tree dispute would be the opposite of the policy objective: to resolve tree disputes efficiently and inexpensively. It would also be a waste of VCAT’s resources.

11.61 The Commission concludes that new tree owners and new affected neighbours (new owners of land) should be bound by the outcomes of prior legal action. Most cases are likely to involve new affected neighbours seeking to benefit from orders. However, sometimes new affected neighbours may have to carry out pre-existing obligations, such as sharing the costs of maintenance.

11.62 Any Orders requiring payment of compensation should rest with the original owner. It would be unfair to shift responsibility for compensation to a new owner who was not involved. This is also the approach in New South Wales.

11.63 The right to benefit from orders should be limited to the immediate new affected neighbour (the applicant’s successor in title).^[98] The Commission is persuaded by the approach in New South Wales where the right is limited in this way so as not to burden

‘title to the land indefinitely, particularly in the case of orders relating to ongoing maintenance’.^[99] Tree dispute orders should not run with the land.

11.64 The Commission acknowledges the concerns that new owners should not be bound by the outcome of legal action because they may view the tree differently from the original parties in dispute. For example, a new affected neighbour may wish to retain overhanging branches because they provide shade and greenery. However, because the new Act deals only with damage or likely future damage or harm, it is more likely that the same problem will impact a new owner. This may be different if more subjective issues were being considered, for example, access to sunlight and views or leaf litter not causing damage.^[100] If new owners do not agree with a preexisting order then they should be able to apply to VCAT to vary or revoke them (see Chapter 9). This may also be needed where an original order provided access rights that need to be updated or modified.

Recommendations

47 The Act should state that new owners of land should be bound by and benefit from the outcome of legal action.

48 The Act should state that new owners are bound to the extent the original owner has not completed the order or has an ongoing obligation to carry out the Order.

49 Only immediate new owners may benefit from orders made in the original owner’s favour.

When should new owners be bound?

11.65 New owners should be bound from the date of settlement, when the title to the land passes to the purchaser.^[101]

11.66 Binding a purchaser earlier than settlement, such as from the date they enter into a contract of sale, or the time of auction, would not be appropriate. There are too many variables at this stage and the sale may fall through.

11.67 The date of settlement, which includes transfer and registration of title, is clear proof that ownership has now changed hands. It is also a point in the sale of land process that is clear and easy to identify. Other suggestions such as ‘one year’; a grace period after transfer or title; or date of occupation, may be less clear.

11.68 For consistency and clarity, any timeframes stipulated in the orders should re-commence on the date of settlement.

Recommendations

50 The Act should state that the date from which new owners will be bound and will benefit from the outcome of legal action is the date of settlement.

51 Any timeframes stipulated in the orders should re-commence on the date of settlement.

Who should inform purchasers?

11.69 Potential purchasers should be notified of existing disputes and orders before settlement so that they know about the scope of the problem and future obligations. This will help them to make informed decisions and encourage compliance if they buy. It may also empower a purchaser to require works pursuant to an order to be completed before settlement.

11.70 It should be the role of the original owner (both the original tree owner and original affected neighbour) to inform potential purchasers, using the processes outlined below under ‘How should notice be provided?’

11.71 It should not be the sole duty of the affected neighbour to inform new owners of the tree, as is the case in New South Wales. The Commission agrees with QCAT’s observation that it would be problematic for the neighbour to have to provide the new tree owner with a copy of any orders to ensure they are carried out.^[102] The neighbour may not know that the land is being sold or who is buying it, so it would be unfair to put the onus on them to monitor ownership of their neighbour’s land.^[103]

What should be disclosed?

11.72 Disclosure should include providing relevant documentation, either a copy of the application or orders, to the purchaser. If the matter has not been settled then a copy of the application should be provided. If the matter has been determined then a copy of the Orders (if any) should be provided.

How should notice be provided?

11.73 Disclosure should not make the sale of land more complex or burden buyers by with additional enquiries during conveyance. Instead, notice of formal tree disputes or Orders should form part of the usual disclosure process of selling land in Victoria. This notice should be provided in the Due Diligence Checklist and in the Section 32 Vendor Statement.^[104]

Due Diligence Checklist

11.74 The Sale of Land Act 1962 (Vic) mandates the provision of a Due Diligence Checklist. This Checklist is intended to help prospective buyers in ‘identifying information they may wish to obtain in respect of the land for sale’.^[105] It must be provided to prospective buyers by the vendor or an agent from the time the land is offered for sale,^[106] in the form published by Consumer Affairs Victoria.^[107] The Checklist contains general information about a range of issues that may affect the property and impose restrictions or obligations on them.^[108] The checklist should be amended to include information about how the land may be affected by legal action and orders under the new Act.

Vendor Statement

11.75 The Section 32 of the Sale of Land Act requires a Vendor Statement to be provided to a purchaser.^[109] The Section 32 Vendor Statement is a legal document and requires the vendor to disclose certain matters to the purchaser before they enter into a contract of sale.^[110] Many of the matters in the Vendor’s Statement elaborate on matters that appear in the Checklist. This means that potential purchasers could be provided with notice through both the Checklist and more thoroughly in the Vendor’s Statement.

11.76 A Vendor Statement is not currently required to disclose matters relating to trees or vegetation on the land. It is recommended that the Sale of Land Act is amended to include a provision in Part 2 to expand the Section 32 provisions to require disclosure of ongoing legal action under the new Act at the time of sale, or if legal action has concluded, information about incomplete or ongoing orders. For clarity and transparency, copies of the application or orders should be provided to the purchaser. The Commission considers that this would be a straightforward amendment.

If purchasers are not informed

11.77 If a purchaser is not properly informed about legal action or orders, the purchaser may seek recourse under the Sale of Land Act.

11.78 The Queensland and Tasmanian Acts include penalties for failing to give purchasers notice of an application or order before they buy.^[111]The Commission is of the view that existing penalties under the Sale of Land Act are satisfactory. If prospective purchasers are not given copies of the Due Diligence Checklist as required by the Sale of Land Act, a maximum penalty of 60 penalty units ($9,671.40) applies.^[112]

11.79 The failure of the vendor to provide accurate information in a Section 32 Vendor Statement gives the purchaser the right to rescind the contract at any time before settlement or acceptance of title.^[113] Knowingly or recklessly supplying false information to the purchaser is a criminal offence equating to a maximum of 60 penalty units ($9671.40).^[114] There is also a general maximum penalty of 10 penalty units ($1611.90) for contravention of the Sale of Land Act.^[115]

11.80 As the Sale of Land Act already provides penalties for failure to disclose the Commission does not support duplicating these penalties and provisions in the new Act.

Recommendations

52 The Act should state that purchasers should be notified of any legal action commenced or underway at the time of the sale, or orders made under the Act. The Act should further state that copies of the application or order must be provided with a Section 32 Vendor Statement.

53 The Due Diligence Checklist under Division 2A of the Sale of Land Act 1962 (Vic) should be amended by Consumer Affairs Victoria to include information about the effect on new owners of legal action and orders made under the proposed Act.

54 The Sale of Land Act 1962 (Vic) should be amended to include a provision under Section 32 that requires disclosure of legal action under the proposed Act at the time of sale, or if legal action has concluded, disclosure of incomplete or ongoing orders. The Sale of Land Act 1962 (Vic) should also stipulate that copies of the application and order are to be provided.

Joining new parties to proceedings

11.81 There is potential for a mistrial^[116] where the ownership of a tree changes part way through legal proceedings, resulting in the wrong party being sued. This occurred in a Queensland case where the tree owner, a corporation, sold its land to another corporation in the time between the commencement of the matter and the hearing. The original owner did not inform QCAT of the change in ownership. QCAT held there had been a mistrial and explained:

The Tribunal … has jurisdiction to make orders only in respect of those matters which parliament has given it jurisdiction. In this case, it can make orders in relation to tree disputes, in essence between tree-keepers and neighbours…The Tribunal cannot proceed to make orders about the tree dispute in these circumstances as between [the two corporations] as though the transfer to [the new owner] had not occurred. It has no power to do so. [The new owner] is the tree-keeper and the proper respondent. Further, the sale and transfer of the property to [the new owner] and the failure…to disclose that sale and transfer raises issues affecting the substantial merits of the case.^[117]

11.82 The Commission intends to limit the possibility of a mistrial in such circumstances. While this could be achieved through automatic joinder of the new parties—as occurs in Queensland and Tasmania—^[118] this may cause problems:

a) A purchaser may resent having to become involved in legal proceedings when they buy a property. Indeed the prospect of being joined as a party may discourage the sale. It would probably require the purchaser to obtain additional legal advice, which would be costly.

b) The sale may fall through, making the legal action even more complex.

11.83 A better approach would be for the vendor to notify VCAT immediately after a contract of sale is fully executed as occurs in Tasmania.^[119] VCAT should decide whether to join the parties depending on the facts of the case. The VCAT Act provides VCAT with the power to do this if it considers ‘that the person ought to be bound by, or have the benefit of, an Order of the Tribunal in the proceeding; the person’s interests are affected by the proceeding; or for any other reason it is desirable that the person be joined as a party’.^[120]

11.84 When making an application to initiate a matter under the new Act, all parties involved in the dispute should be obliged to reveal whether they have entered into a contract of sale of land at the time. This should be one of the details included in the application form. See Chapter 5.

Recommendation

55 If a party to a tree dispute enters into a contract of sale of land while legal action under the Act is underway, the Act should require that party to notify the Victorian Civil and Administrative Tribunal about the sale as soon as possible after the contract of sale has been fully executed.

Not recommended: a searchable database of orders

11.85 Although there was considerable support for the idea of a searchable database of orders, its introduction in Victoria is not recommended as it may result in unnecessary duplication of information to be disclosed through a Section 32 Vendor Statement. The amended Vendor’s Statement would provide sufficient notice and information to purchasers. Furthermore, unless the database is widely publicised and freely available,^[121] it may not be used, and it would be costly to monitor and update.

11.86 Some responses favoured a searchable database because it might assist the members of the wider community who may have concerns about the tree. However, tree disputes do not typically impact people other than the parties involved and the Commission has not recommended that orders run with the land indefinitely. The decision-making principles in Chapter 8 should be enough to ensure that any wider benefits of the tree are considered. These principles reflect broader considerations in planning laws which have a broader community focus.

11.87 Notice of an application under the new Act will be provided to anyone who the applicant has reason to believe may be affected by the outcome of an order. Therefore, there is little benefit in allowing a searchable database of orders that other residents in the neighbourhood may inspect. Other databases already inform the community about matters relating to trees: the Victorian Heritage Database, the National Trust’s Significant Tree Register, and significant tree registers of local councils.^[122] The subject matter of those databases is in the wider public interest.

1. Trees (Disputes Between Neighbours) Act 2006 (NSW) ss 16(1)–(2).

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2. Land and Environment Court of New South Wales, Annotated Trees (Disputes Between Neighbours) Act 2006 (January 2013) 39.

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3. See, eg, Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16(2).

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4. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16(3); However, orders for any payments of compensation may remain with the original tree owner. See, eg, Joaquim v Adamson [2009] NSWLEC 1312 in which Senior Commissioner Moore and Acting Commissioner Fakes stated: “The orders concerning direct payment of monies by the respondents to the applicants as compensation for damage to the applicants’ property will continue to bind the respondents notwithstanding the sale of their property” [108].

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5. See Environmental Planning and Assessment Act 1979 (NSW) s 10.7.

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6. Environmental Planning and Assessment Regulation 2000 (NSW) sch 4, cl 13.

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7. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14(a).

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8. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 22.

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9. See generally, Trees (Disputes Between Neighbours) Act 2006 (NSW).

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10. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16A.

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11. Consultation 11 (Land and Environment Court of New South Wales).

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12. See, eg, Kennedy v Hayes [2014] NSWLEC 1114 [30].

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13. See Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Cincotta v Huang [2011] NSWLEC 1086 cited in Land and Environment Court of New South Wales, Annotated Trees Act January 2013 (1 September 2016) 9. The Court may join a party if the joinder is proper or necessary: see, eg, Uniform Civil Procedure Rules 2005 (NSW) reg 6.24.

    ↑

14. The provisions of Part 7 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) refer to the sale of ‘land affected by an application or order’ which ‘means land on which a tree the subject of an application or order is situated’: ss 82, 83.

    ↑

15. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 83. The Seller’s disclosure obligation under s 83 of the Act is contained in REIQ Contracts: Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015) [3.585].

    ↑

16. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 85. Consultation 15 (Queensland and Civil Administrative Tribunal).

    ↑

17. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 84. Joinder means that a party who is not named in the original application but is believed to have a role in the matter and is joined ether as an applicant, a respondent or only as a joined party. Joiner brings together, before the court, all the matters in the contest between all the relevant parties. Joinder serves in the interests of administrative convenience as well as finality: Trischa Mann, Oxford Australian Law Dictionary (Oxford University Press, 2010).The consequence of not joining purchasers and title passing hands during the trial could be a mistrial. See, eg, PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29 and PGC Holdings Pty Ltd v Jalfire Pty Ltd (No. 2) [2018] QCAT 363.

    ↑

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

    ↑

19. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 85(b).

    ↑

20. Ibid s 78(1).

    ↑

21. Ibid s 83; The penalty unit value in Queensland is currently $130.55 (from 1 July 2018): Queensland Government, Sentencing Fines and Penalties for Offences (Web Page, 5 July 2018) <https://www.qld.gov.au/law/fines-and-penalties/types-of-fines/sentencing-fines-and-penalties-for-offences>.

    ↑

22. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 86(2), 86(4). However, if an application is commenced after the purchaser has entered into a contract of sale then the Act imposes no obligation on the tree owner to notify the purchaser about the proceedings. If a dispute arises between the tree owner and purchaser, then this can be dealt with as a contractual matter: Consultation 15 (Queensland Civil and Administrative Tribunal); see also Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015) [3.586]–[3.587], [3.593]–[3.595].

    ↑

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

    ↑

24. Ibid s 76.

    ↑

25. Queensland Civil and Administrative Tribunal, Tree Orders Register (Database, 21 February 2019) <www.qcat.qld.gov.au/matter-types/tree-disputes/tree-order-register>.

    ↑

26. The provisions in Division 2 of the Neighbourhood Disputes About Plants Act 2017 (Tas) refer broadly to ‘An owner of land to which an application or an order relates’. The Commission notes that this provision has not been formally interpreted by the Tribunal.

    ↑

27. Neighbourhood Disputes About Plants Act 2017 (Tas) s 16(1)(a).

    ↑

28. Ibid s 34(2); see, eg, Fuller v Estate of Nelder Josephine Hunt [2018] TASRMPAT 28 [48].

    ↑

29. Ibid s 34(2).

    ↑

30. Ibid.

    ↑

31. Ibid s 16(2).

    ↑

32. See Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

33. Ibid.

    ↑

34. Neighbourhood Disputes About Plants Act 2017 (Tas) s 34(3)(a).

    ↑

35. See further Local Government (General) Regulations 2015 (Tas) r 45, sch 6, No 11A.

    ↑

36. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 8 (Rene Hidding).

    ↑

37. Neighbourhood Disputes About Plants Act 2017 (Tas) s 16(1). The penalty unit value in Tasmania is currently $163 (from 1 July 2018): Department of Justice (Tas), Value of Indexed Amounts in Legislation (Web Page) <https://www.justice.tas.gov.au/about/legislation/value_of_indexed_units_in_legislation>.

    ↑

38. Neighbourhood Disputes About Plants Act 2017 (Tas) ss 17(2)–(3).

    ↑

39. Ibid s 18.

    ↑

40. Ibid s 18(3).

    ↑

41. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 8 (Rene Hidding).

    ↑

42. Neighbourhood Disputes About Plants Act 2017 (Tas) s 37(4); Resource Management and Planning Appeal Tribunal, Practice Direction No 18 — Applications under the Neighbourhood Disputes About Plants Act 2017 (19 November 2018) [18.5.1]. It costs individuals $23.70 to search the database pursuant to s 37(4) of the Neighbourhood Disputes About Plants Act 2017 (Tas): Resource Management & Planning Appeal Tribunal, Table of Fees (effective from 1 July 2018) <https://www.rmpat.tas.gov.au/fees>.

    ↑

43. Submissions 2 (Name withheld), 4 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 10 (Professor Phillip Hamilton), 11 (Name withheld), 19 (Name withheld), 23 (Name withheld).

    ↑

44. Submissions 9 (Dr Karen Smith), 10 (Professor Phillip Hamilton).

    ↑

45. See for eg Submissions 2 (Name withheld).

    ↑

46. Confidential submission.

    ↑

47. Confidential submission.

    ↑

48. Submission 21 (Pointon Partners Lawyers).

    ↑

49. Submissions 5 (Name withheld), 21 (Pointon Partners Lawyers).

    ↑

50. Submissions 4 (Name withheld), 7 (Ben Kenyon), 8 (Victoria Thieberger), 9 (Dr Karen Smith), 10 (Professor Phillip Hamilton), 11 (Name withheld), 19 (Name withheld), 20 (Name withheld), 23 (Name withheld), 27 (Name withheld).

    ↑

51. Submission 9 (Dr Karen Smith).

    ↑

52. Submission 20 (Name withheld).

    ↑

53. ‘Run with the land’ means an interest or burden that passes with the transfer of land, binding subsequent owners: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘run with the land’.

    ↑

54. Confidential submission.

    ↑

55. Planning and Environment Act 1987 (Vic) s 124: ‘Any enforcement Order or interim enforcement Order served on an owner or occupier of land is binding on every subsequent owner or occupier to the same extent as if the Order had been served on that subsequent owner or occupier.’

    ↑

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

    ↑

57. Submission 2 (Name withheld).

    ↑

58. Confidential submission

    ↑

59. Confidential submission.

    ↑

60. Submissions 5 (Name withheld), 21 (Pointon Partner Lawyers).

    ↑

61. Submission 21 (Pointon Partners Lawyers).

    ↑

62. Submissions 2 (Name withheld), 7 (Ben Kenyon), 19 (Name withheld), 20 (Name withheld).

    ↑

63. Submissions 4 (Name withheld), 11 (Name withheld), 27 (Name withheld).

    ↑

64. Confidential submission. It was not specified at what point this one year period should commence.

    ↑

65. Confidential submission. The period of this suggested grace period was not specified.

    ↑

66. Submission 23 (Name withheld).

    ↑

67. Submissions 2 (Name withheld), 6 (Name withheld), 27 (Name withheld); Consultations 1 (Aldo Taranto), 3 (HVP Plantations),

    4 (Participants in facilitated discussion at VTIO ArborCamp2018), 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip ).

    ↑

68. Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

    ↑

69. Consultation 9 (Nillumbik Shire Council).

    ↑

70. Submission 10 (Professor Phillip Hamilton).

    ↑

71. Submission 6 (Name withheld).

    ↑

72. Ibid.

    ↑

73. Submission 2 (Name withheld).

    ↑

74. Submission 27 (Name withheld).

    ↑

75. Submission 10 (Professor Phillip Hamilton).

    ↑

76. Consultation 10 (Baw Baw Shire Council).

    ↑

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

    ↑

78. The Law Society (United Kingdom), Property Information Form (TA6)—Explanatory Notes for Sellers and Buyers (2013), 5, questions 2.1–2.2.

    ↑

79. Ibid 1; See, eg, McMeekin v Long [2003] All ER (D) 124 (4 October 2002).

    ↑

80. Submission 11 (Name withheld).

    ↑

81. Submissions 23 (Name withheld) and Confidential submission.

    ↑

82. Confidential submission.

    ↑

83. Submissions 4 (Name withheld), 27 (Name withheld).

    ↑

84. Submission 27 (Name withheld).

    ↑

85. Submission 21 (Pointon Partners Lawyers).

    ↑

86. See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 42.

    ↑

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

    ↑

88. Ibid. See also PGC Holdings Pty Ltd v Jalfire Pty Ltd (No. 2) [2018] QCAT 363 [51].

    ↑

89. Submissions 4 (Name withheld), 5 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 11 (Name withheld),

    19 (Name withheld), 20 (Name withheld), 21 (Pointon Partners Lawyers), 23 (Name withheld), 27 (Name withheld), 33 (Annette Neville); Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council).

    ↑

90. Consultation 8 (City of Boroondara).

    ↑

91. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

92. Consultation 9 (Nillumbik Shire Council).

    ↑

93. Submission 20 (Name withheld).

    ↑

94. Confidential submission.

    ↑

95. Submission 2 (Name withheld).

    ↑

96. Submission 10 (Professor Phillip Hamilton).

    ↑

97. Confidential submission.

    ↑

98. This means those who first purchase from the tree owner or affected neighbour. It will not apply to subsequent purchasers.

    ↑

99. Department of Justice and Attorney-General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (Report, 2009) 23; see Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16A.

    ↑

100. See Chapter 13 for a discussion of trees blocking access to sunlight or views.

     ↑

101. Peter E Nygh and Peter Butt, Butterworths Australian Property Law Dictionary (Butterworths, 1997).

     ↑

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

     ↑

103. Ibid.

     ↑

104. The information it must contain is set out in section 32 of the Sale of Land Act 1962. The Section 32 statement contains information about the property’s title, including: mortgages; covenants; easements; zoning; outgoings (for example, rates); and declaration if located in a bushfire-prone area. As it is a legal document, it must be factually accurate and complete. If it contains incorrect or insufficient information, a buyer may be able to withdraw from the sale or take legal action: Consumer Affairs Victoria, Conveyancing and Contracts for Sellers (Web Page, 1 April 2019) <https://www.consumer.vic.gov.au/housing/buying-and-selling-property/selling-property/conveyancing-and-contracts-for-sellers>.

     ↑

105. Sale of Land Act 1962 (Vic) s 33A.

     ↑

106. Ibid ss 33B(1),5).

     ↑

107. Ibid ss 33B(2),(5).

     ↑

108. Consumer Affairs Victoria, Due Diligence Checklist – For Home and Residential Property Buyers (15 January 2019) <https://www.consumer.vic.gov.au/housing/buying-and-selling-property/checklists/due-diligence>.

     ↑

109. Consumer Affairs Victoria, Conveyancing and Contracts for Sellers (Web Page, 8 January 2019) <https://www.consumer.vic.gov.au/housing/buying-and-selling-property/selling-property/conveyancing-and-contracts-for-sellers>.

     ↑

110. Sale of Land Act 1962 (Vic) s 32(1)

     ↑

111. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 83; Neighbourhood Disputes About Plants Act 2017 (Tas) s 16(1).

     ↑

112. Sale of Land Act 1962 (Vic) ss 33B(1), (4). The current value of a penalty unit is $161.19 (as at 1 July 2018): Department of Justice and Community Safety (Vic), Penalties and Values (Web Page, 14 August 2018) <https://www.justice.vic.gov.au/justice-system/fines-and-penalties/penalties-and-values>.

     ↑

113. Sale of Land Act 1962 (Vic) s 32K.

     ↑

114. Ibid s 32L. Or, 300 penalty units in the case of a body corporate. The current value of a penalty unit is $161.19 (as at 1 July 2018): Department of Justice and Community Safety (Vic), Penalties and Values (Web Page, 14 August 2018) <https://www.justice.vic.gov.au/justice-system/fines-and-penalties/penalties-and-values>.

     ↑

115. Sale of Land Act 1962 (Vic) s 16. This penalty may be applied ‘where no other penalty is expressly provided’.

     ↑

116. A trial that must be aborted and from which no valid outcome results: Trischa Mann, Oxford Australian Law Dictionary (Oxford University Press, 2010).

     ↑

117. PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29 [17]–[18].

     ↑

118. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 84; Neighbourhood Disputes About Plants Act 2017 (Tas) s 34(2).

     ↑

119. Neighbourhood Disputes About Plants Act 2017 (Tas) s 16(2).

     ↑

120. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60(1).

     ↑

121. It costs individuals $23.70 to search the database pursuant to s 37(4) of the Neighbourhood Disputes About Plants Act 2017 (Tas): Resource Management & Planning Appeal Tribunal, Table of Fees (Web Page, effective from 1 July 2018) <https://www.rmpat.tas.gov.au/fees>.

     ↑

122. See, eg, Heritage Council Victoria, Victoria’s Significant Heritage Places and Objects <https://vhd.heritagecouncil.vic.gov.au/>; National Trust, Significant Tree Register (Web Page, 2019) <https://www.nationaltrust.org.au/services/significant-tree-register/>; Bayside City Council, Significant Tree Register (Web Page, 2019) <https://www.bayside.vic.gov.au/significant-tree-register>.

     ↑