EXPOSURE DRAFT


               AUGUST 2006


The issue of disputes about trees in the urban environment was considered by the New
South Wales Law Reform Commission (LRC) in its report entitled “Neighbour and
Neighbour Relations,” Report No 88, published in 1998. The LRC’s report concluded
that the common law of nuisance and abatement, which currently governs disputes
between private parties about trees, does not provide an adequate dispute resolution
process for people living in closely settled communities.

The Attorney General, the Hon Bob Debus MP, directed the Attorney General’s
Department to review the recommendations contained in the LRC’s report and develop a
more accessible process for the prevention and resolution of disputes about trees.

The attached Trees (Disputes Between Neighbours) Bill 2006 (the Bill) has been
developed in consultation with a number of government agencies, including the
Department of Local Government and the Department of Planning. Other relevant
Ministers and the Local Government Association and the Shires Association have also
been consulted regarding the Bill.

1.1   Submissions

The NSW Attorney General’s Department invites interested individuals               and
organizations to make written submissions regarding the proposed Bill.

Submissions should focus on the proposed legislative scheme. While a particular
example of a problem involving a tree may be relevant in commenting on the Bill, the
types of problems and concerns experienced in neighbour and neighbour disputes have
previously the subject of consultation and discussion by the LRC.

Submissions should be sent to Legislation and Policy, NSW Attorney General’s
Department, GPO Box 6, Sydney NSW 2001 or email: lpd_enquiries@agd.nsw.gov.au
The closing date for submissions is Friday, 15 September 2006.

2.    The Trees (Disputes Between Neighbours) Bill 2006

2.1   Overview

Most disputes between neighbours about trees can be resolved by neighbours talking
the matter through and, where relevant, consulting the local council.

As a next step, neighbours can participate in a voluntary mediation of the dispute
through a Community Justice Centre (CJC). Mediation session at CJCs are conducted
by two impartial, trained mediators who help people to understand each other's point of
view and to work together to reach an acceptable agreement. Mediation provided by
CJCs is free, informal and does not require lawyers and solicitors.

Where voluntary mediation or other alternate dispute mechanisms have failed or are not
acceptable to one or both parties it is necessary to consider more formal dispute
resolution mechanisms.

The proposed new statutory scheme set out in the attached Bill is designed to provide a
simple, inexpensive and accessible process for the resolution of disputes between
neighbours about a tree which has caused, is causing, or is likely to cause damage to
property in the near future, or the tree is likely to cause injury to a person.

2.2       What the Bill is designed to do

The Bill establishes a separate statutory scheme that gives the Land and Environment
Court (the LEC) jurisdiction to make orders to remedy, restrain or prevent damage to
property or to prevent injury to any person due to a tree on neighbouring property.

The legislation will apply to trees in urban areas (that is, areas that have zonings such
as residential, industrial and business).

The term “tree” is not defined in the proposed legislation. Where a definition is not
specified in legislation, the Court can rely upon the dictionary definition. For example,
the Oxford dictionary definition of a tree means a perennial plant having a self-
supporting woody main stem or trunk (which usually develops woody branches at some
distance from the ground), and growing to a considerable height and size.

The effect is that a person may apply to the LEC for an order to remedy or prevent
damage to property, or to prevent injury to a person, resulting from any tree that the
Court determines comes within the ordinary meaning of the term. It is proposed that
fees relating to applications brought in the LEC be made consistent with fees in the
Local Court to minimise costs associated with making an application.

Where such damage or potential for injury can be shown, the LEC may make
appropriate orders, including orders to require:

      -   Action to be taken to remedy the damage. For example, the Court may order that
          tree roots or branches be trimmed;
      -   Action to be taken to prevent damage, or to prevent further damage. For
          example, the Court may order root barriers be installed;
      -   Action to prevent injury to any person. The Court may order that a tree that is
          unstable and is beyond saving be removed.
      -   The payment of costs associated with taking a specified action, such as the cost
          of removing a tree.

In addition to making an order to take specific action, the Court will be able to order the
payment of compensation for damage to property.

Orders made by the LEC under the legislation will “run with the land” that is, where a
person sells the land but has not carried out the Court’s orders, the purchaser of the
property will be bound by the Court’s order. The Bill amends the Conveyancing (Sale of
Land) Regulation 2005 to require a vendor to give a warranty regarding an application or
order requiring work to be carried out in compliance with the Trees (Disputes Between
Neighbours) legislation.

Before making an order the LEC must be satisfied that:

      -   the applicant has made a reasonable effort to resolve the matter with the tree

    -   the applicant has given notice of the application to the Court, the tree owner and
        anyone else who may be affected;
    -   that the tree concerned has caused, or is likely to cause damage to the
        applicant’s property in the near future, or is likely to cause injury to a person; and
    -   that the tree is not subject to the processes under the Crown Lands Act 1989 or
        Western Lands Act 1901.

While the vast majority of trees covered by the proposed legislative scheme will be on
private land, there may be some trees located on Crown land within the zoning areas
covered by the Bill. Section 22 of the Crown Land Act provides that the Minister for
Lands may refer any matter dealing with the administration of Crown land to a local land
board1 or a Chairperson of the board for inquiry and report. The scheme captures
complaints regarding trees on Crown land. Section 10A of the Western Land Act 1901
is in similar terms. There are significant areas of Crown land across the state and the
Bill provides that any disputes concerning trees should continue to be dealt with under
the provisions of these Acts. (Land owned by local councils is not Crown land).

When deciding to make an order under the proposed legislation, the Court must
consider a number of factors, including:

    -   any environmental, historical, cultural or scientific value the tree may have;
    -   the value of the tree as a public amenity;
    -   whether interference with the tree would usually require any consent or
        authorisation under the Environmental Planning and Assessment Act 1979 or the
        Heritage Act 1977 and, if so, whether such consent or authorisation has been
    -   any impact of the tree on soil stability, the water table or other natural features of
        the land or locality;
    -   factors that may have contributed to the damage (such as the neighbour’s own
        tree roots);
    -   any steps the tree owner has taken to prevent damage to property or injury to a
        person; or
    -   the location of the tree in relation to the boundary of the land on which the tree is
        planted and any premises.

A proposed penalty of up to 1,000 penalty units ($110,000) applies for a failure to
comply with any requirement imposed on a person by an order of the Court under the

Applications to the LEC under the proposed statutory scheme may involve situations
where a tree is causing damage to property or a tree is likely to cause injury to a person.
It is therefore not proposed to require applicants to obtain any consent or authorisation
under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977
prior to making an application to the LEC. The delay associated with imposing such a
requirement may mean that further damage is caused or injury results. (The legislation
does not prevent a person approaching the council in the first instance).

        Local Land Boards are community-based tribunals consisting of an independent Chairperson
        employed by the State Government and two local community members who are appointed by
        the Minister for Lands on the basis of their knowledge of land management practices and/or
        their familiarity with the local area.

The relevant local council or Heritage Council may appear in any proceedings before the
LEC where they would otherwise have jurisdiction over the tree that is the subject of the
application. The LEC will be required to consider any consent or authorisation under
these Acts before making an order under the proposed legislation.

Entry onto private land without the consent of the owner or the Court would normally
amount to trespass. The Bill provides that the Court will be able to make orders
authorising entry onto land for the purpose of carrying out an order.

The Bill limits the application of the common law of nuisance. Instead an application for
an order where a tree is causing damage or poses a danger to people may only be
brought in the LEC. This does not prevent any other action being brought in nuisance
and does not prevent abatement of a nuisance. (Nuisance and abatement are the
traditional remedies utilised by plaintiffs seeking a common law remedy regarding a tree
dispute. The tort of negligence may be available where a party can demonstrate a duty
of care. It is anticipated that the great majority of matters will be brought in the LEC
under the scheme. The lower fees in the LEC will facilitate matters being heard in that

A standard provision that is incorporated in most new pieces of legislation provides for a
review of the policy objectives of the Act five years after the date of assent.

Councils will also have a discretion to carry out the work ordered by the Court where the
tree owner has not complied with the order. Where councils take such action they will
be able to recoup reasonable costs associated with such work.

The Bill amends section 124 of the Local Government Act 1993. Section 124 gives
councils the power to make orders requiring a person to do or cease doing certain things
in order to protect public health or safety.

Many of the orders councils may make relate to premises or land. The amendment to
section 124 is intended to make it clear that councils may make orders on their own
initiative for work to be carried out concerning a dangerous tree to ensure the safety of
persons on adjoining land.

The amendment to section 124 is separate to the provisions under the Trees (Disputes
Between Neighbours) Bill 2006 that allow a council to take action to carry out an order
made by the Court.

2.3    What the Bill does not cover

The main purpose of the legislation is to provide an efficient means for parties to redress
or prevent damage to property, obtain compensation for damage where appropriate, and
prevent injury to persons from dangerous trees.

The legislation is not intended to provide a mechanism for people to take action where a
neighbour’s tree causes annoyance but is not causing damage or does not threaten
damage to property or injury to persons. For example, leaves falling onto a neighbour’s
courtyard may cause annoyance, but will not cause damage to the neighbouring
property. On the other hand, heavy fruit falling onto neighbouring roof tiles may cause

“Damage” may take many forms and is therefore not defined in the Bill. As occurs with
any civil action, the person considering bringing the action will need to decide whether
the damage caused by the tree has, or will, necessitate sufficient expenditure by way of
rectification to warrant initiating legal action. (As previously noted voluntary mediation of
a dispute is available through CJCs).

Nor does the Bill provide a remedy where a tree blocks a neighbour’s sunlight or view,
although any rights that a person may have under an easement would not be affected by
the legislation.

Environmental planning instruments or Tree Preservation Orders designed to protect
urban trees will not be affected by the proposed legislation, except to the extent that the
Court makes an order to prevent damage to property or injury to persons.

The Bill is limited in its application to certain urban areas and will therefore not impact
upon trees governed by other legislation, such as the National Parks and Wildlife Act
1974 or the Forestry Act 1916. Nor does the Bill affect rights under other legislation to
trim, remove or take other action concerning a tree, for example, action required to be
taken under the Electricity Supply Act 1995 to prevent a tree destroying, damaging or
interfering with electricity works.

The Bill does not address the situation where a person experiences problems with a tree
on their own property. Processes exist under the Environmental Planning and
Assessment Act 1979 (EP&A Act) that allow tree owners to apply to their local council to
have a tree lopped or removed. (See the discussion on planning and heritage law in
section 3.1.2).


3.1    The current law

3.1.1 The Common Law

The common law of nuisance and abatement provide rights and remedies for property
owners involved in tree disputes.

The common law of nuisance provides protection against physical damage to land or
buildings. A remedy is generally only available once damage or substantial interference
has occurred.

Nuisance also protects the less tangible interest of the enjoyment that a person normally
derives from residing on land. The common law does not generally recognise access to
light as an interest it will protect unless such access is protected by an easement.

Abatement allows a person to cut off overhanging branches and roots protruding onto
their property and place them on the tree owner’s property. The encroaching branches
or roots do not have to cause actual damage before a person can exercise this right of
abatement, but the person removing the branches may be open to a charge of trespass
if they go onto the tree owner’s property to trim the tree, unless damage has already
occurred or the branches pose a danger to life or health.

Common law actions for nuisance may currently be heard in the Local, District or
Supreme Court, depending upon the amount of the claim.

3.1.2 Planning and Heritage Laws2

Since the publication of the LRC report there have been a number of changes to
planning laws and other developments in the law, which have impacted upon the
approach adopted in the exposure draft Bill. Councils have the power to protect trees in
their local government area in a number of ways:

        Environmental Planning Instruments (EPIs)

       Part 3 of the EP&A Act provides for the making of EPIs at the state, regional and
        local level. An EPI is a statutory instrument and has the force of law.

        Section 26(4) of the EP&A Act, which was recently amended, 3 provides that an
        environmental planning instrument (EPI) that makes provision for or with respect
        to protecting or preserving trees or other vegetation may make provision:
           (a) for development control plans to specify the species or kinds of trees or
               other vegetation included in or excluded from the relevant provisions; and

           (b) for the grant of permission to remove or otherwise affect trees or other
               vegetation, and for a refusal to grant permission to be treated as a refusal
               or failure to grant development consent under and for the purposes of Part
               4 of the EP&A Act.

        The effect of the provision is that a council may make an EPI that makes
        provision to grant permission to remove or otherwise affect trees or other
        vegetation. The EPI may also provide for a refusal to grant such permission to
        be treated as a refusal or failure to grant development consent under Part 4 of
        the EP&A Act. (Part 4 of the EP&A Act relates to development consent). EPI’s
        relating to trees may contain similar requirements to Tree Preservation Orders
        (TPOs). However, TPOs have now been superseded by EPIs.

        There may be TPOs that have been made under EPIs prior to the amendment to
        section 26(4) of the EP&A Act. These TPOs may impose controls regarding the
        removal, lopping, or pruning of trees. Council’s permission must be sought
        before taking any action that contravenes these TPOs.

        The Heritage Act 1977

       The Heritage Act 1977 provides that the Minister for Planning can make interim
        heritage orders, or authorise a council to make an interim heritage order for a
        place, building, work, relic, moveable object or precinct that the Minister
        considers may be of State or local heritage significance. The Minister may also
        direct the listing of such matters on the State Heritage Register, provided that the
        Heritage Council recommends the listing.

        New South Wales statutes may be accessed at http://www.legislation.nsw.gov.au
        Refer to Schedule 2 of the Environmental Planning and Assessment Amendment
        (Infrastructure and Other Planning Reform) Act 2005.

          While trees do not fall within the scope of heritage items, trees may be protected
          by being within a place or precinct that is the subject of an interim heritage order
          listing on the State Heritage Register.

          The Heritage Act provides that a person must not damage or destroy any tree or
          other vegetation on, or remove any tree or other vegetation from a place, precinct
          or land that is the subject of such an order or listing without the approval of the
          relevant approval body (the Minister or the council).4

          Development Applications

         Councils have a statutory obligation to consider the environment when
          determining development applications under the EP&A Act. In determining a
          development application, a consent authority (the council) must take account of
          various matters that are relevant to the particular development proposal. These
          are listed in s.79C(1) of the EP&A Act and include the provisions of any EPI or
          draft instrument, the likely impacts of that development, such as environmental
          impacts on both the natural and built environments, social and economic impacts
          in the locality, and the public interest. 5

The EP&A Act and the Heritage Act fall within the administration of the Minister for
Planning, the Hon F E Sartor, MP.

3.2       The NSW Law Reform Commission Report

The LRC report “Neighbour and Neighbour Relations,” which was published in 1998
made a number of recommendations relating to disputes between neighbours involving

A number of these recommendations have been adopted in the Bill or incorporated in
the principles underlying the Trees (Disputes Between Neighbours) Bill 2006. However,
a different approach has been taken regarding a number of the LRC proposals.

The LRC report recommended that Local Courts be given jurisdiction to hear disputes
involving trees. As previously outlined, actions in nuisance are heard in the Local,
District or Supreme Courts, depending upon the amount of the claim.

To ensure a consistent approach it is considered preferable that the LEC be given
jurisdiction to deal with applications under the proposed legislation. The LEC is a
specialist environmental jurisdiction and routinely makes orders of the type contained in
the Bill. The LEC currently has jurisdiction regarding appeals against decisions of local
councils concerning:

          Refer to s.57 of the Heritage Act 1977.
          Section 126 of the EP&A Act provides for a penalty for an offence against the Act of up to
          10,000 penalty units ($1,100,000) and a further daily penalty not exceeding 1,000 penalty
          units ($110,000). Where proceedings for an offence are brought in a Local Court constituted
          by a Magistrate, the maximum monetary penalty that the court may impose is 1,000 penalty
          units: s.127(3). Where the offence involves destruction of a tree or vegetation, the court may
          in addition to or in substitution for a pecuniary penalty, direct a person to plant new trees and
          vegetation and maintain them to a mature growth: s.126(3). The Land and Environment
          Court also has jurisdiction with respect to proceedings for offences.
          The LRC’s Report can be viewed at: http://infolink/lawlink/lrc/ll_lrc.nsf/pages/LRC_index

       (i)        development consent applications;
       (ii)       the judicial review of the validity and meaning of a EPI; and
       (iii)      prosecutions for breaches of the EP&A Act.

The LEC also has jurisdiction to hear appeals against a refusal to grant approval under
the Heritage Act.

The LEC has 10 Commissioners who regularly sit outside Sydney, conduct hearings
onsite and are experienced in dealing with all issues concerning trees. Commissioners
have a range of qualifications and experience, including in the areas of local government
administration, town planning, environmental science, natural resources management
and urban design or heritage. Commissioners primarily hear and determine merit
appeals in classes 1-3 of the Court’s jurisdiction. (Class 1 relates to environmental
planning and protection appeals; class 2 relates to local government and other appeals
and applications and class 3 concerns land tenure, valuation, rating and compensation

Other advantages associated with having matters dealt with by the LEC are:
              Recent procedural reforms in the LEC aimed at actively discouraging the
               overuse of expert evidence and legal representation; and
              The Land and Environment Court Act 1979 has recently been amended to
               enable the LEC to order mandatory mediation. Parties to disputes may
               therefore be required to mediate disputes where the Court considers this to
               be appropriate.

The LRC report proposed that the common law right of abatement be modified by
removing the requirement that the branches or roots removed from a tree be placed on
the tree owner’s property. While the common law is archaic in this regard, it is not
proposed to modify the law in this area. As previously indicated, where the LEC hears
disputes under the proposed legislation, the Court will be able to make orders for costs
associated with the lopping or removal of a tree.7

The LRC report recommended that a person whose enjoyment of property has been
severely affected by a neighbour’s trees blocking out either sunlight or a view should be
able to apply to the court for a remedy. As discussed in the report, the common law of
nuisance does not generally recognise access to light as an interest it will protect unless
such access is protected by an easement.

The Bill does not provide a remedy where a tree blocks out sunlight or views. Setting
arbitrary standards when it comes to access to light poses difficulties in terms of
establishing what principles might apply in assessing the impact of light deprivation
caused by overhanging trees. It is also a matter of concern that any such provisions
might be relied upon as a general basis to argue for the removal of trees.

As indicated in the LRC report, the common law right of nuisance has consistently
refused to protect the right to a view on the basis that interference with aesthetics is too

       Some EPI’s and TPOs relating to trees contain provisions allowing the trimming of trees in
       certain circumstances without the necessity to obtain consent. An example is the removal of
       deadwood and/or pruning of up to 10% of a tree's foliage or root system, within a period of not
       less than 12 months since any prior pruning.

subjective.8 While the obstruction of a view may cause annoyance and a reduction in
property value in some circumstances, it will rarely result in the complete loss of
enjoyment of land.

Although the removal of a tree(s) may benefit an individual landowner by ensuring
access to a view, it may also deprive nearby residents of the advantages associated with
being able to view trees (which may also enhance their particular view). While land
values may be increased by the presence of a view, it is not clear that individual property
values should outweigh considerations such as environmental benefits and the
community facility associated with trees.

There is growing evidence that urban trees play an important environmental and
sociological role in the community. Urban trees play a significant role in reducing air
pollution and storm water run-off, provide energy savings through reduced cooling costs,
as well as having aesthetic and social benefits. The LRC report acknowledged that the
social and environmental benefits to the community should generally outweigh an
individual’s interest in preserving a view.9

The LRC’s proposals relating to light and views may warrant further consideration once
the proposed legislative scheme has been in operation for a reasonable period of time.
This might be undertaken as part of the five-year statutory review of the scheme, which
is a requirement under the proposed legislation.

       Refer to the LRC Report, at p.15.
       Refer to LRC report, at p.38.


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