‘Aggressive’: Neighbour war erupts over trees

A note written by a neighbour about trees that cause a “massive problem” has sparked a war over who’s right.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your rights when it comes to neighbours’ demands around overhanging trees.

QUESTION: My property has several large pine trees growing at the back of it, they’re at least six metres tall and slightly overhang the neighbouring driveway of a handful of houses. I received a handwritten note from one of the occupants saying a tree was causing “massive problems” for all residents. The note said if I don’t take action in 14 days, they will organise for removal of the branches at my cost and that this action had been approved by the council.

I went to speak to the neighbour who complained. They said the main issue is pine cones falling and the damage they could cause to their car as well as them being a potential trip hazard. I did not see any pine cones around when I was there. As far as I am aware, there have been no issues like this in the past and I have not had complaints from any other neighbours. What should I do? To cut the tree I would need a cherry picker along with a tree lopper, which could easily cost thousands that I don’t have. On the other hand, the neighbour’s initial tone was aggressive and threatening and I’m concerned if I don’t comply I will have ongoing issues with him. – Tony, SA

‘Aggressive’: Neighbour war erupts over trees

ANSWER: The basic principle is that as the tree owner, you have primary responsibility for cutting and removing any branches of the pine trees that overhang your neighbours’ land, assuming one or more of three things are present.

You must take action if the tree (its branches or pine cones) could cause:

• Serious injury to a person

• Serious damage to a person’s land or property (eg their house or car)

• A nuisance, that is a substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.

The note said if I don’t take action in 14 days, they will organise for removal of the branches at my cost. Picture: iStock/file image

If you don’t take action and someone is injured or property is damaged as a result of the pine cones, you may be liable in negligence for failing to take precautions to prevent the injury or damage.

A civil claim could follow and, if successful, you would be required to cover any losses which are paid by way of compensation to the victim.

You have already taken a positive step by speaking directly to the neighbour who complained. Even though it wasn’t a positive outcome, we would recommend you continue to keep the lines of communication open and respectful.

If you don’t take action and someone is injured or property is damaged as a result of the pine cones, you may be liable in negligence. Picture: iStock

Your next step would be to tell the neighbour you wish to consider the potential impact of the pine cones and request that he provide you with photos of his concerns so you can better understand them.

You should also ask him for written verification that the council has approved for the branches to be removed.

If you don’t receive this, you should inquire with your local council directly.

You should also be aware that before pruning some types of trees (heritage listed or protected trees) your local council also likely requires you to seek approval or obtain a permit.

In terms of who should fund the pruning of the trees, your neighbour will generally only be able to recover the cost of this from you if there is a nuisance situation as described above or there is imminent danger or a threat of damage or injury.

Before pruning some types of trees you need to seek approval from your local council. Picture: iStock

If you are able to show that the pine cones are not likely to cause anyone or any property damage or harm, then it will be arguable as to whether you should be required to contribute to the tree lopping cost at all.

Community Justice Centres provide a free mediation service which can assist in resolving disputes such as this.

The only way for the neighbour to force you to cut the branches or fund the cost of the tree lopping is to apply to the Magistrates Court (the Minor Civil Division) for an order.

An order will not be granted if the problem caused by the branches is temporary, occasional or trivial in nature.

Based on your description of the pine cones, a court may see it as a trivial issue, but you do need evidence to support your position. We would recommend daily date-stamped video footage showing the area.

In the Magistrates Court, it is common for people to act for themselves in disputes like this.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail] more from Alison and Jillian on their Facebook page.

Originally published as ‘Aggressive’: Neighbour war erupts over trees