If you or your neighbour has an issue with the other over tree(s), shrubs or foliage, it’s easiest to try and reach agreement. Here are some things you should know:
Tree disputes are covered by ‘common law’, which is law the courts have developed over time.
A property owner has the right to trim back any leaves or branches that enter their property at their own cost. This is known as the ‘right of abatement’.
You’re liable for any damages you cause to your neighbour’s tree while performing any maintenance.
If you want your neighbour to pay for any tree maintenance, you need to show it’s damaging your property or constitutes a private nuisance.A private nuisanceis when your use and enjoyment of your land is being affected by another person’s act or omission. This is decided in the Magistrates’ Court.
Before performing any tree maintenance, check with yourlocal council (http://www.dtpli.vic.gov.au/local-government/find-your-local-council) to ensure you are complying with all relevant tree regulations. Make sure the tree isn’t protected and doesn’t require a permit to cut it back.
The council won’t help resolve a dispute or cut back your tree for you, unless it’s on council land.
If you believe that you require access to your neighbour’s land to perform tree maintenance, you need their consent.
If you need more info please visit the link below
Frequently asked question
Generally, a tree owner does not necessarily have an obligation to maintain their tree, unless it is causing damage or nuisance. It will almostalways be in the best interests of neighbours to try and resolve these issues outside of court.
I want to prune or remove a tree
Generally, you can cut it back whenever you want unless it’s protected by an environmental overlay. Your local council can tell you if it is and if so, you’ll need a permit.
Firstly, check with your local council, to see whether the tree is protected or subject to an environmental overlay. If it is, you need a permit to cut it back. If it’s not protected, or you have a permit, you can cut back any leaves, branches or roots overhanging the boundary line. This is known as the right of abatement, and is done at your cost, unless otherwise agreed. Unless you agree otherwise, you must return the branches & leaves to your neighbour as they remain their property.
It’s best to engage your neighbour along the way. Take the opportunity to explain the laws. Tell them your plans and where you’ll put the cut branches. This should hopefully prevent disagreements down the track and may even give you a better result in the long run.
Can ask my neighbour to contribute to the maintenance of their trees?
Yes, and you may find they’re perfectly happy to share the costs. They may even be able to propose a solution that saves you both time and money.
Can I force my neighbour to remove or cut back their tree?
Not unless you bring about an action of private nuisance (http://www.lawhandbook.org.au/06_04_02_nuisance/), which means that someone’s act or omission substantially interferes with your use and enjoyment of your property. You need to apply to court for a private nuisance claim, so get legal advice first. If you do proceed, you need to show the nuisance is significant and unreasonable.
When deciding on your matter the court will consider:
- your neighbourhood’s general environment
- where the interference took, or is taking place
- what’s causing it
- how long it’s been happening and if it’s ongoing
- the impact on you
- if the interference was there when you moved in
- how useful or necessary the activity causing the interference is
- what reasonable people would think of the interference.
Using common sense, the court will also weigh the inconvenience or impact of the interference on you against the cost and effect of having your neighbour modify or stop their activities.
It’s important to recognize that living in a neighbourhood means that occasionally there will be competing interests or activities from people nearby. The court takes a pragmatic look at these, recognizing that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live.
If I don’t want go to court what can I do
Speak to us (DSCV https://www.disputes.vic.gov.au/about-us/mediation)about mediation. It’s free, confidential and we work with parties to help them resolve their disputes without the need to go to court. Get in touch with a Dispute Assessment Officer via our contact page (https://www.disputes.vic.gov.au/about-us/contact-us) or call us on 1300 372 888. We can arrange for both parties to meet in a neutral environment, along with two trained mediators, with a view to reaching a resolution
Even if you think that mediation is not appropriate, a DSCV staff member may be able to provide a referral, or advice to help you resolve things.
Why doesn’t my neighbour have to pay for the maintenance of their trees?
Trees in Victoria are only covered under general property and common law. The courts have shown reluctance to create new obligations for tree owners as this would substantially change the existing rules we have in Victoria.
A neighbouring tree is causing damage to property. What can do?
It’s likely your neighbour is liable for the damages. Refer to the Fences Actfor the general obligations on people to pay for damaging a boundary fence. Other damage like roots cracking pipes, foundations or pathways is usually covered under property law.
It’s always going to be better to try to negotiate a solution first. Going to court is very expensive and can take a long time, so reaching a private agreement will avoid a lot of hassle. Speak to us (DSCV https://www.disputes.vic.gov.au/about-us/mediation)about mediation.It’s free,confidential and we work with parties to help them resolve their disputes without the need to go to court. Get in touch with a Dispute Assessment Officer via our contact page(https://www.disputes.vic.gov.au/about-us/contact-us)or call us on 1300 372 888. We can arrange for both parties to meet in a neutral environment, along with two trained mediators, with a view to reaching a resolution.
It’s a good idea to get together as much information as possible so you can have an informed discussion with your neighbour. This could include:
- an arborist’s report showing that the tree caused the damage
- photos of the damage
- a quote for the costs of removal or repair.
Remember, if you were to attempt mediation or if you decided to go to court, you’d need most or all of this anyway. Plus, it’s not unreasonable for the other party to want it.
The adjacent tree drops debris on to my property. What can I do?
Common sense and court law acknowledge that trees drop leaves, bark, sticks, flowers, fruit and sap as part of their normal life cycle and that this doesn’t justify excessive tree pruning or removal. In other words, this isn’t usually considered a private nuisance.
In this instance, have a chat with your neighbour about whether they’d be willing to work with you tomaintain the tree, or cut back any part of it that encroaches on your property yourself.
The large trees my neighbours have planted will over shadow/block views from our property. What can I do?
In Victoria, there are no specific rules or regulations that can force a property owner not to plant big trees and this is usually something for neighbours to negotiate and agree upon themselves. If you’re still not happy and are considering bringing a private nuisance http://www.lawhandbook.org.au/06_04_02_nuisance/) action, you’d be best to get independent legal advice first.
The council own a tree that’s overhanging or causing damage to my property. What can I do?
Call your local council to check if the tree is protected. If the tree is protected, the council may send an arborist to look at the tree and make a decision on what to do next.