Many contentious issues arise between neighbours involving trees, whether it be overhanging branches or encroaching tree roots. Access onto your neighbour’s property can also result in conflict. If possible, the best way to resolve these problems is, firstly, to talk to your neighbour and try to work out a solution. If this doesn’t work, you can seek legal advice or take advantage of one of the mediation services available.
Trees - overhanging branches or encroaching roots...
If branches of a tree on a neighbouring property overhang your property you have a right to cut these back. However, before doing so you should check with your local Council to see if there’s a Tree Preservation Order. Usually trees or bushes over a certain height and of a certain species will require Council’s consent to prune or remove.
If you cut branches or remove roots of a neighbour’s tree without Council’s consent you could be fined. Also, the branches or roots remain the property of the neighbour.
A tree branch that falls onto a neighbouring property and damages the neighbour’s car or injures someone, or tree roots that block the neighbour’s sewer pipe or damage the neighbour’s pathway or driveway, are a “nuisance” or a “trespass”, and could result in the neighbour claiming compensation. Inspect your trees regularly or have a professional do it for you, to ensure your trees are safe ... and be aware of the types of trees you have planted on your property and the damage their roots could cause, not only to your property but also to your neighbour’s property.
If your neighbour will not obtain Council’s consent to the removal or pruning of a tree which you believe is dangerous or is causing damage to your property, the Trees (Disputes Between Neighbours) Act 2006 may assist. This Act gives neighbours the right to apply to the Land and Environment Court to obtain an Order against the owners of the tree.
Gaining access to a neighbour’s property...
If you require access onto your neighbour’s property to undertake work on your property and you don’t have a legal access through a right of way or easement, the Access to Neighbouring Land Act 2000 may assist you.
The Access to Neighbouring Land Act 2000 provides that there are two types of Orders available from the Local Court depending upon what you require the access for.
A Neighbouring Land Access Order enables you access onto your neighbour’s property to undertake certain works on your property (e.g. painting or other maintenance of your house) if your house is close to your neighbour’s boundary.
A Utilities Service Access Order, on the other hand, enables access onto your neighbour’s property to undertake work to a utility service (i.e. gas, water, electricity) which may be located on your neighbour’s land but which you are entitled to use.
Both Orders require that, once the work is completed, the neighbour’s land is to be restored as near as possible to its previous condition. The Court can also grant compensation, if necessary.
An article taken from the first edition of e-Precedents