Neighbourhood Tree Disputes: Report (html)

4. The need for a new Act to resolve neighbourhood tree disputes

Introduction

4.1 Chapter 3 examined some limitations with how the current law helps people to resolve tree disputes. This chapter explores the need for change in more detail. It briefly considers the interstate Acts that have been introduced to resolve tree disputes, and community responses to the possible direction of reforms in Victoria. It recommends the introduction of a Neighbourhood Tree Disputes Act in Victoria and identifies the policy themes that should underpin this new Act.

Approaches to tree disputes in other jurisdictions

4.2 Some Australian jurisdictions have enacted legislative regimes to govern the resolution of tree disputes while others have retained the common law.

4.3 In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, tree disputes are governed by common law, as in Victoria. The overall process in each of these states and territories is similar to the Victorian process discussed in Chapter 3.

4.4 As in Victoria, each of the states and territories has its own provider of free mediation services.^[1] Tree disputes are heard in courts or tribunals:

• In South Australia and Western Australia, smaller claims are heard in magistrates’ courts.^[2]

• In the Northern Territory, smaller claims can be heard in the Northern Territory Civil and Administrative Tribunal or the Local Court.^[3]

• In the Australian Capital Territory, an affected neighbour can bring legal action for nuisance in the ACT Civil and Administrative Tribunal instead of going to court, provided their claim is for $25,000 or less.^[4] Claims exceeding this amount must be brought in the ACT Magistrates Court.^[5]

Tree dispute Acts in other states

4.5 Specific Acts have been introduced in New South Wales, Queensland and Tasmania to help neighbours on private land resolve their tree disputes.^[6] The key features of these Acts are discussed throughout this report.

4.6 These Acts were introduced following reviews by law reform bodies and government agencies^[7] that recommended new legislation to provide a ‘simple, inexpensive and accessible process for resolving tree disputes’.^[8]

4.7 These Acts identify:

• the rights and responsibilities of parties

• the specific causes of action that can be relied upon to bring legal action

• the decision-making principles that will guide the decision maker

• the types of orders that can be made.

4.8 Cases under the interstate Acts are heard in either in a tribunal or in a specialised court, which each focusing on quick, cheap and efficient dispute resolution.^[9] In New South Wales, cases are heard by specialist Commissioners with arboricultural experience and hearings are generally conducted on site.^[10] In Queensland the Queensland Civil and Administrative Tribunal (QCAT) is assisted by Tribunal appointed independent tree assessors who provide expert advice to the Tribunal.^[11]

4.9 In addition to legal action through a court or tribunal, the Queensland and Tasmanian Acts introduce formal procedures that help people resolve their disputes out of court.^[12]

4.10 Both NSW and Queensland handle a relatively low number of applications each year. The Land and Environment Court of New South Wales (NSWLEC) has heard approximately 1000 cases since the NSW scheme commenced. It now hears 120 to 156 cases per year.^[13] Approximately 200 tree dispute applications are filed in QCAT each year.^[14] The Tasmanian Act came into operation in December 2017, with 13 applications filed in 2018 and three filed as at the end of April 2019.^[15]

4.11 The introduction of these Acts appears to have had positive outcomes. Reviews of the Acts have found that the policy objectives of simplicity, affordability and accessibility have been met by the procedure established in New South Wales; ^[16] and that the Queensland scheme provides effective resolution of tree disputes.^[17]

4.12 These schemes provide a good guide for a legislative regime in Victoria.

International jurisdictions

4.13 Some international jurisdictions have also developed laws and processes to help neighbours to resolve their tree disputes. They include New Zealand, Singapore, Canada and the United States. Some of these international schemes have informed the development of recommendations in this report.

Community responses—options for reform

4.14 In the consultation paper, the Commission sought community responses on three main options for reform:

• Option 1: Retain the existing system but with specific improvements

• Option 2: Introduce a new statutory scheme (an Act) for resolving tree disputes in Victoria

• Option 3: Alternative options for reform.

4.15 Community responses overwhelmingly supported the introduction of a new Act in Victoria.

Option 1: Retain the existing system

4.16 Only a small number of people considered the current law and process in Victoria satisfactory.^[18] Most community members who addressed this question suggested that the current law is not satisfactory.^[19] One submission noted:

the existing system should not be retained … Anything that resolves or unifies the multitude of legal considerations surrounding tree dispute laws and processes that we have at present should be a great improvement.^[20]

4.17 Another commented, ‘the law in Victoria relating to tree disputes is totally unsatisfactory … in reality [it] offers no protection to persons and property that may be impacted and or inconvenienced by a neighbour’s tree.’^[21]

4.18 Some community members provided suggestions for specific improvements:

• modifications to abatement^[22]

• accessible and centralised information about available options and rights and best practice for pruning (for example, information about the relevant Australian Standards)^[23]

• compelling tree owners to manage or remedy trees in specific situations (such as where the tree hosts pests or is diseased, or where an affected neighbour makes specific requests for works) with enforcement by local council^[24]

• preventing people from planting trees close to common boundaries, and giving affected neighbours an automatic right to cut down trees to the height of the dividing fence^[25]

• compelling an unwilling party to participate in mediation.^[26]

Option 2: Introduce a new tree disputes Act

4.19 The majority of community members supported the adoption of a specific statutory scheme in Victoria and noted it would be a significant improvement.^[27]

4.20 One community member stated ‘there should be a single, clear Act that sets out neighbours’ rights and duties, and explains where to go for information and support’.^[28] Arborist Dr Karen Smith stated ‘It would seem that this has merit since self-help and mediation is not proving satisfactory to many.’^[29] Another community member pointed out that:

A statutory scheme for resolving tree disputes has the primary function of providing a level of certainty for disputants who are seeking the resolution of a seemingly intractable conflict by way [of] accessible legislation and adjudication.^[30]

4.21 Many community members viewed the scheme in New South Wales favourably and considered a similar Victorian statutory scheme appropriate^[31]:

Other states in Australia have much more rigorous laws and also specialised courts to deal with these problems … We need a new act of parliament. Other states have useful legislation, why not Victoria?^[32]

4.22 As one survey respondent succinctly explained: ‘The law requires immediate reform. It is currently unfair. The NSW tree law is a good example to use for reforming the laws in relation to trees in Victoria.’^[33]

4.23 Dr Gregory Moore OAM stated that the statutory schemes in New South Wales, Queensland and Tasmania appear to be sensible.^[34]

4.24 QCAT reported that the Queensland scheme appears to be working well to resolve tree disputes.^[35] Acting Commissioner David Galwey of the NSWLEC and a tree disputes consultant working in both New South Wales and Victoria submitted that the New South Wales scheme provides a good example of effective legislation for resolving tree disputes.^[36]

4.25 Some commented that a clear statutory scheme, such as the Fences Act 1968 (Vic) for fence disputes, should be replicated for tree disputes.^[37]

4.26 Although no one objected to the idea of a new Act, there were reservations about the potential for any new scheme to lead to an increase in disputes and have a greater impact on vegetation.^[38]

4.27 An arborist expressed concern that a statutory scheme will increase the removal of trees, thus reducing the urban forest and benefits to the community.^[39] ENSPEC, an arboricultural consulting firm, supported reforms to clarify and simplify the resolution of tree disputes but noted:

we harbour some strong reservations about the form this might take and the potential for an increase in disputes as a result … Is the current number of enquiries unexpected or unreasonable given the millions of trees in our community?

Could the number of enquiries/disputes be reduced through public education about reasonable expectations of living in a community?

Would providing an easily accessible system actually increase the overall workload in the system and burden on the community by facilitating more unreasonable ‘disputes’ going further than an enquiry to DSCV [Dispute Settlement Centre of Victoria]?^[40]

4.28 HVP Plantations cautioned against placing unreasonable burdens on rural landowners to manage trees. It submitted that ‘there is a case for statutory intervention to provide guidance to rural landowners in treed environments, and to draw a contemporary compromise between the benefits and risks that trees bring to neighbours’.^[41]

Option 3: Alternative options

4.29 The community was also asked to submit proposals for alternative options for reform. Some of these ideas are discussed in Chapter 13 because they are beyond the scope of this Community Law Reform Inquiry.

4.30 Dr Gregory Moore OAM suggested establishing an office of the State Arborist. This person would have significant arboricultural experience and would provide independent and impartial advice in disputes. Parties could pay a fee which would fund the office.^[42]

4.31 Some responses proposed a role for local councils to inspect trees, put tree owners on notice, and fine those who do not comply.^[43]

The Commission’s conclusions—options for reform

4.32 Tree issues arise frequently in the community (whether or not they become disputes handled by DSCV) and those issues would usefully be ameliorated by more clarity in the law.

4.33 For most people, the current law and process are unclear and provide limited recourse. Because courts are inaccessible to most people, the community must rely on the informal dispute resolution framework. Without clear guidance from the law, this approach has limitations.

The limitations of only focusing on informal resolution

4.34 Informal neighbour-led negotiation may not be possible when a tree owner ignores an affected neighbour’s concerns or refuses to negotiate. There is currently little incentive for a tree owner to negotiate with an affected neighbour because the law is hard to identify and there is no clear resolution framework.

4.35 It may be inadvisable to approach a tree owner where the relationship between neighbours is acrimonious. The close proximity of neighbours increases the chances of conflict. Tree disputes can escalate into trespass, vandalism or criminal matters.^[44]

4.36 Abatement is a ‘self-help’ remedy and so does not require any contribution or cooperation from the tree owner, but it may be of limited use for affected neighbours who are physically or financially unable to do it. Abatement may not be practicable in situations involving large trees or confined spaces. Further, the requirement at law to return abated branches to the tree owner was identified as unfair and could make things worse.

4.37 Mediation via DSCV is voluntary, so if one party refuses to participate an affected neighbour is left without any recourse. Moreover, any agreement reached is not legally binding and the affected neighbour has no right of enforcement unless the agreement is converted into a formal written contract by an external legal practitioner.^[45] These limits were also recognised in the context of fence disputes by the Parliamentary Law Reform Committee during its 1998 review of the Fences Act 1968 (Vic).^[46]

4.38 Mediation will not be appropriate if either party has expressed fear of the other or has been harmed or threatened with violence by the other party.^[47]

4.39 The Commission agrees with the conclusions of the Tasmania Law Reform Institute’s 2016 review, Problem Trees and Hedges: Access to Sunlight and Views. The review recognised that the current Victorian system for resolving tree disputes is focused on alternative dispute resolution (ADR).^[48] It concluded:

The Institute is not persuaded that ADR should be used as a stand-alone alternative to other, more formal processes in the resolution of neighbour disputes about trees or hedges. This is due to potential difficulties with compelling a neighbour to participate in ADR processes—particularly where there is a level of animosity between neighbours that would make voluntary attendance or compliance unrealistic or undesirable—and the (potentially) non-binding nature of agreements reached through ADR, making the enforcement of agreements unworkable in some cases. Further, if ADR fails to resolve the dispute recourse would be to the common law, a situation that is unlikely to provide a satisfactory resolution to the dispute.^[49]

4.40 The Tasmanian review recommended that the Victorian model not be implemented in Tasmania.^[50]

The limitations of going to court

4.41 High costs mean that many people do not take matters to court. Even if neighbours choose to pursue legal action, the outcomes can be difficult to predict. Common law rules in nuisance, negligence and trespass are often complex and it is difficult to identify clear statements of rights and responsibilities for tree owners and affected neighbours. The torts and their remedies do not address all the unique circumstances and issues involved in tree disputes, and the wider benefits and importance of trees do not have to be considered. It is also difficult to obtain a pre-emptive remedy.

4.42 The Commission agrees generally with the comments in interstate reviews on the complexity and limitations of the common law. The New South Wales Law Reform Commission’s 1998 review, Neighbour and Neighbour Relations found that:

The law of nuisance is only likely to provide a remedy where a tree actually causes physical damage. Common law nuisance rights in relation to the less tangible impact of trees on the enjoyment of property are so unclear and uncertain that few people are likely to pursue them in a court. People are also unlikely to be able to resolve a dispute between themselves on the basis of such laws … The common law of nuisance is of very little use to a neighbour trying to prevent a tree from causing damage. This means that a minor dispute that could be resolved by the inexpensive removal of a small tree is likely to become a major dispute in which property damage has occurred and will continue to occur unless huge amounts are spent to remove what has become a very large tree.^[51]

4.43 The Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010 (which became the Queensland Act) explain that ‘the application of the common law of nuisance to a neighbourhood dispute about trees did not provide a realistic solution for neighbours’.^[52]

A new Tree Disputes Act is needed

4.44 The Commission recommends that a new Act is introduced to govern the resolution of tree disputes between neighbours on private land in Victoria. This approach received considerable support from the community.

4.45 A new Act is needed because amending existing laws would not address all the elements that arise in tree disputes. A standalone Act would be easier for the community to find, navigate and understand.

4.46 Certain aspects of the current legal process should be retained to allow neighbours different options. The existing pathways of abatement, neighbour-led negotiation and mediation via DSCV may successfully resolve some tree disputes.

4.47 The Commission supports retaining these options and encouraging neighbours to use them as a first step. Specific suggestions for improving them are outlined in subsequent chapters.^[53] This is consistent with other Australian and international jurisdictions that have enacted legislation for tree disputes but have also encouraged the options of negotiation, mediation and abatement. See Chapter 6.

4.48 Neighbours who wish to take legal action should not have to rely on the common law tort of nuisance for tree disputes that fall within the scope of the new Act. Instead, neighbours should be able to bring a claim within the new Act. Retaining the common law right to nuisance may be helpful for matters that would fall outside the new Act—for example, a claimant who wishes to bring an application alleging interference, which is excluded from the ambit of the new Act (see Chapter 5). Neither the Tasmanian nor Queensland Acts limit the operation of the common law rights to nuisance,^[54] although they do modify the right to abatement (see Chapter 6).

4.49 Also, negligence and trespass offer unique and relevant remedies in certain circumstances (for example, personal injury or trespass to land). The new Act should not limit a neighbour’s ability to sue for negligence or trespass occurring as a result of a tree dispute. This is consistent with the New South Wales Act, where neighbours may still wish to bring an action for negligence or trespass at common law.^[55] The Tasmanian and Queensland Acts do not limit the right to negligence or trespass.

4.50 The Commission acknowledges concerns expressed by ENSPEC that a new Act could increase the level of disputation in the community or result in more ‘unreasonable disputes going further than an enquiry to DSCV’.^[56] Others expressed concern that a new Act may lead to increased vegetation removal.^[57]

4.51 The Commission’s recommendations, including mandatory decision-making principles and a requirement for expert evidence, aim to ensure that the matters initiated in VCAT are disputes of real substance and that a range of different considerations are balanced transparently in the decision-making process.

4.52 The Commission is encouraged by the positive findings of the statutory reviews of the tree dispute Acts in New South Wales and Queensland,^[58] and by its own discussions in the course of this review.^[59] The Commission also understands that the statutory scheme for resolving fence disputes under the Fences Act 1968 (Vic) is working well and providing clarity about rights and dispute resolution.

4.53 Rather than tackle current inadequacies in the law solely through education and community resources,^[60] these resources should complement the introduction of a new Act. Supporting material should explain in an accessible way how the new Act works and provide information about the broader tools available to help the community resolve their disputes and manage vegetation better.

Other reform ideas

4.54 Proposals for a resolution and enforcement process through local councils^[61] are not supported because this is contrary to the primary role of local councils. An independent review body, such as an office of a State Arborist,^[62] a review panel or a process through approved expert contractors, could provide neighbours with an independent decision about the tree and how best to manage it. ^[63] However, an existing decision-making forum within the legal system would respond better to the civil and arboricultural elements of a tree dispute.

4.55 he Commission’s responses to these ideas are explained in chapter 7, where it recommends that the Victorian Civil and Administrative Tribunal (VCAT) is given jurisdiction to administer the new Act.

Recommendation

1 A new Act should be introduced to govern the process for resolving disputes between neighbours about trees on private land in Victoria. The new Act could be titled the Neighbourhood Tree Disputes Act.

Policy themes that should underpin the new Act

4.56 The Commission has identified policy themes to underpin the new Act. The new tree disputes Act should:

• provide a clear dispute resolution pathway that encourages people to resolve their disputes informally between themselves

• enable disputes to be resolved efficiently and inexpensively

• establish clear decision-making principles to guide the community about how the law applies, and help the community to resolve their own disputes

• provide practical and effective remedies

• balance competing rights and interests fairly and transparently

• use evidence-based decision making

• interact simply with other laws.

4.57 The new Act should also be accessible and supported by information that is clear and easy to find. These policy themes are discussed in the following paragraphs.

Provide a clear dispute resolution pathway

4.58 It is important that neighbours try to work out ways of solving tree problems between themselves to preserve their ongoing relationship.

4.59 The new Act should clearly define the circumstances in which a case can be brought and the range of the orders available. It should encourage people to resolve disputes informally and provide greater certainty for those who take legal action.

Resolve disputes efficiently and inexpensively

4.60 Not all disputes can be resolved informally. Where disputes proceed to formal adjudication, they should be resolved in an inexpensive, accessible and transparent way to provide the best chance of preserving future relations. The Commission considers that tree disputes would be most appropriately adjudicated in VCAT for the following reasons:

• Application costs are kept to a minimum in VCAT proceedings and parties generally bear their own costs.

• The use of alternative dispute resolution (ADR) is encouraged and VCAT has established ADR programs.

• Tribunal decision makers have relevant experience in planning, environmental and small civil claims matters.

• The Tribunal has considerable flexibility in how it conducts hearings. It is designed for parties without legal representation and is less formal than a court.

4.61 Tree disputes are essentially small party–party disputes and so are well suited to Tribunal resolution. They are generally between two neighbours and often involve factual interpretation rather than complex legal interpretation. They can often be solved with practical and relatively low-cost solutions.

4.62 The Commission is impressed by the success of the NSW scheme. While the NSWLEC is a superior court, it manages tree disputes in much the same way as a tribunal—quickly, efficiently and flexibly. Many of the key features of the NSW scheme could be adapted to work well in the tribunal system in Victoria. See Chapter 7.

Establish clear decision-making principles

4.63 The new Act should establish clear decision-making principles to guide the community about what factors may be considered by VCAT if a matter progresses to a Tribunal hearing. These principles will guide the community about how the Act will apply and help the community to resolve disputes themselves.

Provide practical and effective remedies

4.64 There is a need for clear practical solutions to tree problems to be incorporated in the new laws. The Act should provide VCAT with a wide discretion to make a range of orders to remedy, restrain or prevent or address damage to property or injury to a person. See Chapter 5.

4.65 The requirements of the common law remedy of abatement may sometimes make disputes worse. For example, tree owners voiced concerns about vegetation being dumped back over the fence after abatement, and affected neighbours expressed concern about having to carry out tree maintenance work that was not of their making.^[64]

4.66 There is a need to modernise the law to reflect the realities of urban life today. Abatement should be modified so that an affected neighbour is no longer required to return tree branches. This remedy would also be enhanced by improved awareness of and access to qualified, trained arborists. See Chapters 8 and 12.

4.67 Arborists have noted a disconnect between the common law and the Australian standards that arborists are trained to follow.^[65] In Chapter 9 the Commission recommends that works conducted pursuant to orders comply with the relevant Australian standards.

4.68 Expert arboricultural input into the process will help VCAT provide remedies that are robust and practical. There should be scope to vary or revoke orders where necessary. See Chapter 9.

Balance competing rights and interests

The risk of damage or injury

4.69 Primary importance should be given to identifying any risks posed by the tree in an accurate and timely way. This principle was echoed in a number of submissions and consultations.^[66] The new Act should aim to prevent harm and damage caused by trees. The new Act should recognise that trees are dynamic living organisms and should enable VCAT to make swift decisions.

The importance of trees to the community

4.70 Protecting and encouraging more vegetation in our urban spaces is increasingly important to our community. Viewing tree disputes strictly as party–party disputes overlooks some of the broader considerations. These include:

• the historical, cultural, social or scientific value of trees

• the contribution trees make to local ecosystems and biodiversity

• the way they contribute to the natural landscape and local amenity.

4.71 Trees are increasingly viewed as community assets.^[67] One community member commented that ‘maintaining canopy tree cover in the urban settings is now critically urgent’.^[68] Councils are increasingly recognising the value of trees in urban forest policies, tree management plans and exceptional tree registers.^[69]

4.72 The new Act should seek to balance the tension between property owners’ rights and the benefits to the community of living in a leafy environment. This should be done on a case-by-case basis through nonexhaustive decision-making criteria in the new Act that recognise the broader intrinsic benefits of trees (for example, that trees provide shade and natural cooling).^[70]

4.73 More minor interference such as leaf litter and the dropping of fruit should not be actionable. Such issues should be an assumed natural consequence of living in neighbourhoods with trees. This is the approach taken by various local councils^[71] and the approach interstate.^[72] Tree disputes relating to minor interference should be resolved informally and should only require remedial action via a formal dispute resolution pathway if they meet the damage or harm requirements under the new Act. See Chapter 5.

Use expert decision makers and expert evidence

4.74 VCAT hearings should be informed by arboricultural evidence that explains whether the tree is the real cause of the damage or harm. The Commission recommends the use of members with arboricultural experience to adjudicate tree dispute hearings at VCAT. This is the approach taken by the NSWLEC. Alternatively, an arboricultural expert qualified to at least AQF Level 5 or equivalent should be appointed by VCAT as a joint expert, with the cost of that shared equally by the parties. This is the approach taken by QCAT. The Commission also recommends the use of on-site hearings or onsite inspections by Tribunal members to check the parties’ concerns and positions in the context of the physical realities of the tree.

4.75 Arborists who provide evidence to VCAT should meet minimum qualification standards. Minimum qualification standards will help to ensure that trees are properly assessed in accordance with industry approved risk assessment methods. Additional recommendations outline requirements for report writing. Formal evidentiary requirements will reduce the likelihood of people bringing claims that are trivial or without merit to the Tribunal and ensure that remedies are robust and practical. See Chapters 7 and 8.

Interact simply with other laws

4.76 Many existing Acts, local laws and policies regulate trees on private land and could intersect with the new Act. These laws and regulations are complex and varied. Decisions made pursuant to some of these laws are subject to review in VCAT. The operation of these laws increases confusion and adds to the difficulties people experience trying to resolve their tree disputes.

4.77 Adding to the complex web of vegetation management legislation in Victoria is not desirable. The new Act should not restrict or alter the operation of existing laws and established policies in areas of law outside tree disputes. However, the Commission seeks to ensure that people visit VCAT only once to resolve their tree dispute. Where necessary, it recommends that the new Act constrain some existing laws in limited circumstances and with appropriate safeguards.

Notify purchasers and new owners of land about existing disputes or Orders

4.78 The Commission identifies a need for potential purchasers and new landowners to be put on notice of obligations that may apply to them under the new Act if they purchase land. This is needed to provide certainty about the resolution of a dispute and to prevent tree disputes arising in the future.

Provide accessible laws, information and support

4.79 The language and structure of the new Act needs to be clear and simple to ensure it is widely accessible to the community.

4.80 Extensive, accessible community information should also be provided about:

• how the Act works in practice and what to expect if a matter proceeds to hearing

• agencies and experts that can help parties resolve their disputes

• how to manage vegetation better.

4.81 Resources should be developed to improve the community’s understanding of trees, for example their rate of growth, and how to best manage issues with trees on neighbouring land. See Chapter 12.

Resolve disputes with professional assistance

4.82 A failure to obtain expert assistance at the appropriate time may mean that incorrect assumptions about the causes of damage or harm are not addressed and advice about practical solutions is not obtained. The timely use of expert assistance would resolve both informal and formal disputes more efficiently and effectively. See Chapter 12.

DSCV mediation

4.83 DSCV provides helpful dispute resolution services and information to all Victorian’s free of charge. These services are provided throughout Victoria including in regional areas. The Commission anticipates that clearer law will further assist DSCV to respond to community enquiries and help it to resolve disputes. The Commission has learnt that the services offered by DSCV are not widely known to some councils,^[73] arborists or community members.^[74] It will therefore be important that the free mediation services of DSCV are promoted, particularly among arborists. See Chapter 6.

Appropriately qualified arborists (tree professionals)

4.84 The community has a poor understanding of the role and qualifications of arborists. Minimum qualification requirements for expert evidence could also act as a reference point for people wishing to obtain their own arboricultural advice independently of VCAT. It is also important for community information to provide guidance on when and how to engage appropriately qualified arborists. See Chapter 8.

1. These include the Conflict Resolution Service in the ACT (Conflict Resolution Centre, Resolving Conflict in Canberra (Web Page)

   <www.crs.org.au/>); the Community Justice Centre (NT), Resolving Disputes without Going to Court (Web Page, 2019)

   <https://nt.gov.au/law/processes/resolving-disputes-without-going-to-court>); the Uniting Communities Mediation Service in South Australia (Uniting Communities, Mediation (Web Page, 2019) <www.unitingcommunities.org/services/financial-legal-services/mediation-services/>), and the Citizens Advice Bureau in Western Australia (Citizens Advice Bureau (WA), Mediation Service (Web Page, 2019)

   <http://www.cabwa.com.au/mediation-service>).

   ↑

2. Individual jurisdictional limits of each state and territory’s courts may require larger claims to be brought in higher courts.

   ↑

3. The Northern Territory Civil and Administrative Tribunal has original jurisdiction to hear claims made pursuant to the Small Claims Act 2016 (NT). A ‘small claim’ is $25 000 or less: Small Claims Act 2016 (NT) s 6. Section 13A of the Local Court Act 2015 confers limited concurrent jurisdiction on the Local Court in relation to these claims.

   ↑

4. ACT Civil and Administrative Tribunal Act 2008 (ACT) s 18(2)(a).

   ↑

5. The jurisdictional limit of the ACT Magistrates Court is $250,000: Magistrates Court Act 1930 (ACT) s 257.

   ↑

6. See generally, Trees (Disputes Between Neighbours) Act 2006 (NSW); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld); Neighbourhood Disputes About Plants Act 2017 (Tas).

   ↑

7. For Queensland see Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) 2, 9; Department of Justice and Attorney-General (Qld), Review of Neighbourly Relations: Trees (Discussion Paper, July 2008); Department of Justice and Attorney-General (Qld), Review of Neighbourly Relations: Resolving Neighbourhood Disputes (Discussion Paper, July 2008); Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015) 1; For Tasmania see Tasmania, Parliamentary Debates, Legislative Council, 22 June 2017, 1 (Leonie Hiscuitt); Tasmanian Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views (Report No 21, January 2016) 35 (Recommendation 3); For New South Wales see New South Wales Law Reform Commission, Neighbour and Neighbour Relations (Report No 88, 1998).

   ↑

8. For New South Wales see Law Reform Commission, Neighbour and Neighbour Relations (Report No 88, 1998) [Recommendation 5]. As Commissioner Fakes explains, the Trees (Disputes Between Neighbours) Act 2006 (NSW) ‘was enacted to provide a relatively simple means of dealing with disputes between neighbours as a result of trees…These are civil matters that prior to the [statutory scheme] would have required someone to take an action in nuisance or negligence … an expensive and time consuming process, and a process more limited in scope than that of the current [statutory scheme]’: Ghazal v Vella (No.2) [2011] NSWLEC 1340.

   ↑

9. Tree disputes are heard in the Land and Environment Court of NSW, the Queensland Civil and Administrative Tribunal and the Resource Management and Planning Appeal Tribunal.

   ↑

10. Land and Environment Court of New South Wales, Practice Note Class 2: Tree Disputes, 1 December 2018 [23], [42].

    ↑

11. Queensland Civil and Administrative Tribunal, QCAT Practice Direction No 7 of 2013: Arrangements for Applications for Orders to Resolve Other Issues About Trees, 3 April 2014 [5]-[7].

    ↑

12. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) pt 4; Neighbourhood Disputes About Plants Act 2017 (Tas) ss 20-21. These parts of the Acts provide for a formal branch removal notice process. This process is discussed in Ch 6.

    ↑

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

    ↑

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

    ↑

15. Information provided by the Resource Management and Planning Appeal Tribunal to the Commission, April 2019. The data provided dates to 26 April 2019.

    ↑

16. Department of Justice and Attorney-General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 10, 15-16.

    ↑

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

    ↑

18. Only 15.31 per cent of survey responses to Question 12 ‘Do you think the current law and process for resolving tree disputes in Victoria is satisfactory as it is?’ said ‘yes’: Victorian Law Reform Commission, Neighbourhood Tree Disputes Survey (2018); Submissions 9 (Dr Karen Smith) ‘I think they probably are. However, there are so many different laws relevant to tree disputes, and also different codes of practices. And they are all in different places’; 21 (Pointon Partners Lawyers) ‘The law is satisfactory, however the process for resolving neighbourhood tree disputes is simply not available to those who cannot afford to go to Court. Therefore, the enactment of an Expert Tribunal to resolve simple dispute between neighbours relating to tree would make justice accessible to all Victorians’.

    ↑

19. Submissions 2 (Name withheld), 4 (Name withheld), 5 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 11 (Name withheld),

    13 (Mandy Collins), 17 (Name withheld), 19 (Name withheld), 22 (Name withheld), 23 (Name withheld), 24 (Name withheld),

    25 (City of Boroondara), 27 (Name withheld), 30 (Law Institute of Victoria), 31 (Barwon Community Legal Service), 33 (Annette Neville),

    34 (Allan Day), 36 (Monique Onezime), 38 (L. Barry Wollmer); Consultations 3 (HVP Plantations), 4 (Participants in facilitated discussion

    at VTIO ArborCamp2018), 6 (Ben Kenyon).

    ↑

20. Confidential submission.

    ↑

21. Submission 38 (L. Barry Wollmer).

    ↑

22. Submission 23 (Name withheld).

    ↑

23. Submissions 7 (Ben Kenyon), 9 (Dr Karen Smith), 11 (Name withheld), 23 (Name withheld). See, eg, Standards Australia, Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007).

    ↑

24. Submission 4 (Name withheld).

    ↑

25. Submission 33 (Annette Neville).

    ↑

26. Submission 10 (Professor Phillip Hamilton); Survey respondents 72, 117.

    ↑

27. Submissions 2 (Name withheld), 4 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 11 (Name withheld),

    13 (Mandy Collins), 19 (Name withheld), 20 (Name withheld), 23 (Name withheld), 25 (City of Boorondara), 27 (Name withheld),

    28 (HVP Plantations), 31 (Barwon Community Legal Service), 33 (Annette Neville); Consultations 1 (Aldo Taranto), 3 (HVP Plantations).

    ↑

28. Consultation 1 (Aldo Taranto).

    ↑

29. Submission 9 (Dr Karen Smith).

    ↑

30. Submission 20 (Name withheld).

    ↑

31. Submissions 7 (Ben Kenyon), 9 (Dr Karen Smith), 20 (Name withheld), 31 (Barwon Community Legal Service); Consultation 1 (Aldo Taranto).

    ↑

32. Submission 19 (Name withheld).

    ↑

33. Survey respondent 99.

    ↑

34. Consultation 2 (Dr Gregory Moore OAM).

    ↑

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

    ↑

36. Submissions 20 (Name withheld), 29 (David Galwey).

    ↑

37. See, eg, Consultation 3 (HVP Plantations).

    ↑

38. Submissions 18 (ENSPEC), 28 (HVP Plantations); Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

    ↑

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

    ↑

40. Submission 18 (ENSPEC).

    ↑

41. Submission 28 (HVP Plantations).

    ↑

42. Consultation 2 (Dr Gregory Moore OAM).

    ↑

43. Submissions 5 (Name withheld), 6 (Name withheld).

    ↑

44. See, eg, Miles v Barca (2003) VSC 376; Gregory Moore, ‘Acts of Arborial Violence: Tree Vandals Deprive Us All’, The Conversation (online,

    2 June 2015, <http://theconversation.com/acts-of-arborial-violence-tree-vandals-deprive-us-all-41342>; Lynda Cheshire and Robin Fitzgerald, ‘From Private Nuisance to Criminal Behaviour: Neighbour Problems and Neighbourhood Context in an Australian City’ (2015) 30(3) Housing Studies 100, 101, 115–6; Victoria Legal Aid, Disputes With Neighbours (Web Page, 25 March 2019)

    <www.legalaid.vic.gov.au/find-legal-answers/disputes-with-neighbours>.

    ↑

45. DSCV staff do not have any investigative or enforcement powers. Accordingly, DSCV does not provide any location/site assessment services and they cannot tell the person you are in dispute with to do anything: Dispute Settlement Centre of Victoria, DSCV FAQS (Web Page, 3 June 2019) <https://www.disputes.vic.gov.au/information-and-advice/dscv-faqs>. Parties are informed by DSCV that their written mediation agreements may be drawn up into a formal written contract by an external legal practitioner: Information provided by the Dispute Settlement Centre of Victoria to the Commission, 16 October 2017.

    ↑

46. Law Reform Committee, Parliament of Victoria, Review of the Fences Act 1968 (Report, 1998) [2.17]–[2.20].

    ↑

47. DSCV considers a number of factors when determining whether a matter is appropriate for mediation. 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 (Web Page, 3 June 2019) <https://www.disputes.vic.gov.au/about-us/mediation-0>.

    ↑

48. Tasmania Law Reform Institute, Problem Trees and Hedge: Access to Sunlight and Views (Report No 21, 2016) [5.3.1].

    ↑

49. Ibid [5.3.8].

    ↑

50. Ibid 35, Recommendation 3.

    ↑

51. New South Wales Law Reform Commission, Neighbour and Neighbour Relations (Report No 88, 1998) [2.20]-[2.21].

    ↑

52. Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld), 1–2.

    ↑

53. Possible modifications to abatement, and the remedies of neighbour-led informal negotiation and mediation are discussed in Chapter 6. Possible community resources for better information about the law and processes are discussed in Chapter 12.

    ↑

54. See generally Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld); Neighbourhood Disputes (Dividing Fences and Trees) Act 2017 (Tas). In contrast the Trees (Disputes Between Neighbours) Act 2006 (NSW) does limit the right to nuisance: s 5.

    ↑

55. See, eg, Robson v Leischke (2008) 72 NSWLR 98 [218]–[219].

    ↑

56. Submission 18 (ENSPEC).

    ↑

57. Submission 28 (HVP Plantations); Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

    ↑

58. Department of Justice and Attorney-General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (Report, 2009) 3; Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, 2015).The recently introduced Tasmanian scheme has not yet undergone any form of review.

    ↑

59. Consultations 11 (Land and Environment Court of New South Wales); 15 (Queensland Civil and Administrative Tribunal).

    ↑

60. See Submission 18 (ENSPEC).

    ↑

61. Submissions 5 (Name withheld), 6 (Name withheld).

    ↑

62. Consultation 2 (Dr Gregory Moore OAM).

    ↑

63. Confidential submission.

    ↑

64. Submissions 5 (Name withheld), 19 (Name withheld), 34 (Allan Day), 36 (Monique Onezime); Survey respondents 44, 72, 95, 99, 103.

    ↑

65. Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon); see, eg, Standards Australia, Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007) [4]. The objective of the standard is to ‘provide arborists, tree workers, government departments, property owners, and contractors with a guide defining uniform tree pruning procedures and practices in order to minimize the adverse or negative impact of pruning on trees’.

    ↑

66. Submissions 9 (Dr Karen Smith), 19 (Name withheld), 22 (Name withheld), 24 (Name Withheld), 38 (L. Barry Wollmer);

    Consultations 3 (HVP Plantations), 10 (Baw Baw Shire Council).

    ↑

67. Submissions 18 (ENSPEC), 19 (Name withheld), 25 (City of Boroondara), 28 (HVP Plantations), 29 (David Galwey); Consultations 2 (Dr Gregory Moore), 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon), 8 (City of Boroondara), 10 (Baw Baw Shire Council), 11 (Land and Environment Court of New South Wales), 14 (Robert Mineo); Survey respondents 2, 13; 115.

    ↑

68. Submission 37 (Ian Hundley).

    ↑

69. See, eg, City of Greater Bendigo, Urban Tree Management Policy (16 August 2017) 4; City of Melbourne, Urban Forest Strategy—Making a Great City Greener 2012-2032 (Report, 2012); City of Stonnington, Urban Forest Strategy 2017–2022 (June 2017) 4; City of Ballarat, ‘Exceptional Tree Register’, Tree Management (Web Page, 2019) <http://www.ballarat.vic.gov.au/city/parks-and-outdoors/tree-management>; South Gippsland Shire Council, Tree Management Plan 2017 (26 July 2017) 4. The importance of retaining urban tree canopy has been recognised by the establishment of the inaugural Australian School of Urban Forestry at the University of Melbourne in partnership with the City of Melbourne, dedicated to understanding and protecting urban forests: see City of Melbourne, Australia’s First Urban Forestry School Announced (Web Page, 6 September 2018) <https://www.melbourne.vic.gov.au/news-and-media/pages/australias-first-urban-forestry-school-announced.aspx>. This issue is discussed in Ch 13.

    ↑

70. Consultation 2 (Dr Gregory Moore OAM).

    ↑

71. Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip); See also City of Greater Bendigo, Urban Tree Management Policy (16 August 2017) 7.

    ↑

72. See, eg, Barker v Kryiakides [2007] NSWLEC 292; Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) cl 61.

    ↑

73. Consultation 7 (Dispute Settlement Centre of Victoria).

    ↑

74. Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon).

    ↑