By Tom Cowie
It’s that time of year: the days are getting shorter, the air has a biting chill to it, and the leaves are turning a reddish-brown before they drop from the trees.
But all of those leaves need to go somewhere. And sometimes, when they fall on the other side of the fence or in a neighbour’s gutters, they end up leading to residential arguments that can turn into costly legal battles.
Duncan Hamilton-Ritchie at his Strathmore home in front of a tree that has led to a neighbourly dispute.Credit: Luis Enrique Ascui
Clashes over trees in Melbourne’s suburbs are not an unusual occurrence. Each year, there are thousands of disputes over encroaching roots, overhanging branches, imposing trees and leaf litter.
“It’s pretty bad for the neighbourhood,” said lawyer Matthew Francke, who regularly acts in tree disputes as part of his specialisation in building and property law.
“There’s no one there to resolve these disputes, so people end up suing each other. It just festers forever and becomes a neighbourhood war.”
Cutting trees legally can be a minefield. Every council has different rules for the removal or pruning of trees; some are specified under local laws, while others aren’t.
Natalie Santilli, with her daughter, Estelle, hopes to build a family home on their Strathmore block.Credit: Penny Stephens
Permits are often needed for any alterations to protected or canopy trees, a status usually based on the trunk’s circumference and overall height (these measurements can differ from place to place).
But that’s when you want to do work on a tree on a property that you own. The process to chop a neighbour’s tree – or when they want to chop one of yours – is an even more challenging matter to navigate.
The first step is peaceful negotiation via a knock on the door. If that fails, or is not possible, there is the option of going to the Dispute Settlement Centre of Victoria, a state-funded body that mediates between parties on issues such as trees.
“I haven’t seen it be very effective. And the only step you can take after that is to sue your neighbour,” said Francke.
“It becomes a trespass or a nuisance claim, and you sue in one of the state courts, depending on how much money you’re fighting about.”
Natalie and Richard Santilli haven’t ended up in court yet, but they say they have spent about $80,000 on a tree dispute while trying to build a new house in Strathmore, in Melbourne’s north-west.
The problem they encountered after purchasing the land in 2021 was a large pin oak tree sitting close to the fence line on their neighbour’s property. The issue wasn’t the tree itself, but what was underground.
Construction of the basement of their family home meant digging into an area known as the “structural root zone”, which, according to City of Moonee Valley local law, stretches two metres from a tree’s trunk.
The fine for cutting the tree issued by Moonee Valley City Council.
Doing any work in that zone required a permit, but their neighbour objected to the proposal.
“I went to see my neighbour,” said Natalie. “I told him everything that I was doing, and I asked him if he could kindly have a look at the application and if he would give us consent. And he said no.”
After offering to pay for the tree to be moved, the Santillis commissioned an arborist’s report, which involved an investigation of the roots. That report said the building could go ahead without harming the tree.
“We had it on paper, certified by a top arborist that it was fine,” said Natalie.
The tree in Strathmore before and after it was lopped.
“Then he [the neighbour] wanted to get his own arborist because I don’t think he felt as though we were being genuine.”
The second report acknowledged that works could proceed under certain conditions and with supervision by an arborist.
However, it also took issue with how the tree had been pruned by the Santillis, who had cut the branches that protruded over their side of the fence.
About 40 per cent of the tree’s canopy was lopped, according to the report, which had left it in poor condition.
The pin oak tree in Strathmore before it was cut.
Moonee Valley council issued a $1000 fine for cutting a canopy tree without a permit.
Under common law, there is a rule known as a “right of abatement” permitting neighbours to cut trees that grow over a fence line. But any damage to large trees can lead to fines.
The Santillis’ neighbour, Duncan Hamilton-Ritchie, has also spent a significant amount on the dispute, putting the figure at $36,000, which included paying for his own lawyer.
Credit: Matt Golding
He said the tree was about 70 years old, and he liked it because it provided shade to his west-facing back windows in summer. He has lived in his house with his wife, Sheila, for 37 years.
“They’re going to cut through the roots because they’re going down three metres [into the ground],” he said.
“We want them to stay out of that root zone.”
Hamilton-Ritchie was also frustrated at how the tree had been trimmed without his permission and that the adjoining fence had been damaged during demolition.
“They’ve done nothing to be good neighbours,” he said. “It’s quite sad. We’ve never had a dispute with any of our neighbours before all this started.”
The Santillis say they have spent $80,000 on costs during the tree dispite.Credit: Penny Stephens
The matter is still to be sorted out, but the Santillis are confident they will get the go-ahead for construction.
Once the house is completed, it’s unlikely they and the Hamilton-Ritchies will be on good terms.
“I will now fight to have the tree removed as part of a nuisance law that I believe I have a case for,” said Richard Santilli.
One reason some of these battles can get particularly nasty is that there is no legal body in Victoria dedicated to sorting out issues involving trees.
The Dispute Settlement Centre of Victoria, which deals with thousands of tree disputes each year, doesn’t have any powers of arbitration, so it can’t hand down enforceable rulings if there is no agreement.
The council does not step in on such matters, while the Victorian Civil and Administrative Tribunal (VCAT) generally only hears such cases if they relate to planning applications.
In 2019, the Victorian Law Reform Commission released a report into neighbourhood tree disputes, which recommended that new legislation be introduced to deal with the problem.
The commission argued that conflicts under a newly created Neighbourhood Tree Disputes Act could be determined by VCAT through a similar process to what currently happens in NSW.
Duncan Hamilton-Ritchie with his wife, Sheila. He likes the tree because it provides shade in summer.Credit: Luis Enrique Ascui
Arborist Ben Kenyon said the housing shortage in Melbourne and subsequent push to densify the inner suburbs was going to lead to more fights between neighbours over trees.
However, he warned against any rules that would make it easier to reduce the amount of vegetation in the city.
“Unless we actually change the way that we’re going about our town planning, these styles of disputes are going to increase exponentially,” he said.
“There’s absolutely no doubt that we need more housing. At the same token, one of the crises that we’re facing is a lack of canopy coverage through our residential areas.”
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