Tree disputes – a common problem with a confusing resolution process

Tree disputes may appear to be a minor issue until it actually happens to you, and then you may find all you can think/talk/dream about is that tree, and the disagreement with your neighbour becomes personal. Tree disputes are common and can be quite serious – trees subject to dispute are sometimes even secretly poisoned or chopped down by neighbours. Hard to believe but true!

If you are experiencing a tree dispute with your neighbour, read on for some information to help you through it.

What is a tree dispute?

It is a disagreement between neighbours with adjoining properties about (one or more) trees, shrubs or foliage that has become dangerous or damaging, or is a nuisance.

How can I resolve my tree dispute?

Firstly, know your rights and responsibilities:

  • You have the right to trim back any roots, leaves or branches that enter your property at your own cost (though be careful as a tree preservation order will limit this right, and legally you must give the branches and roots that you have trimmed back to your neighbour);
  • Also, be aware that you are liable for any damage you cause to your neighbours’ tree whilst performing any maintenance;
  • If you want your neighbour to pay for any tree maintenance, you need to show it is either damaging or is interfering with your use and enjoyment of your land; and
  • Trees growing on your own property may be protected – check with your local council that you are allowed to perform maintenance before going ahead.

Secondly, (and this is obvious), try to negotiate with your neighbour. A little bit of compromise now is much better than trying to drag a tree dispute through the court system.

If you have had an unsuccessful chat, it could be helpful to contact the Dispute Centre of Victoria (DSCV). The DSCV provides conflict coaching and dispute resolution advice over the phone; options, strategies and negotiation techniques (free of charge!) so you are ready for your next discussion with your neighbour.

Some documents that you should have ready for your second chat with your neighbour:

  • An arborist or tree lopper’s report about the trees condition, safety issues and upkeep requirements;
  • If your issue is tree roots causing damage, a report from a plumber and/or engineer; and
    A quote for the tree maintenance you are seeking.

If you and your neighbour find you still cannot agree you may contact the DSCV about their free mediation service, or a lawyer to enforce your legal rights.

Do I have a cause of action?

If resolution is impossible, you may take your issue to the Magistrates’ Court however, this can be expensive and take a long time. It is generally a last resort option.

You may have a cause of action under the tort of…

  • Nuisance where there is or is likely to be unreasonable interference:
    With the use and enjoyment of land; or
    That causes damage to property.
  • Negligence where damage, loss or injury results from a negligent act; or
  • Trespass where an invasion of land has occurred.

If you would like some individual advice specific to your tree dispute, give Sinclair + May a call. We are happy to advise at any stage of your dispute, or answer any questions you may have.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Nov 14, 2018

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