Chapters

Trees

Trees cause various problems between neighbours: overhanging, blocking sunlight, falling leaves, falling branches, roots which break up paths and block or break drains are typical examples.

If a branch falls on to land after being cut by a neighbour, or is thrown onto land, this will be a trespass. If a branch falls from a neighbour's tree without being cut, the neighbour may be liable for any damage caused. This will be so if, for example, the branch fell because the neighbour carelessly did not notice or did not act to remedy the dangerous condition of the tree. If the falling branch of the neighbour's tree damages the dividing fence, the neighbour must repair all the damage, or pay for the repairs.

Removing tree limbs or roots

The owner of a tree has no right to prevent a neighbour from cutting away the roots or branches of a tree that projects over or on to the neighbour's land. Whilst it is not necessary to give notice to the owner of the tree of the intention to prune, it is preferable to consult with the neighbour prior to taking any such action.

The remains of any branches or roots (including any fruit which was on the encroaching branches) should be returned to the owner of the tree as these remain his or her property. The cost of removing any encroaching tree branches or roots is usually borne by the party wishing to remove them as attempts to recover costs will usually aggravate the situation between neighbours. It may be possible for the owner of the tree to seek damages if the tree in question is deliberately, recklessly or unnecessarily damaged whilst being pruned.

An adjoining landowner is not entitled to lop a neighbour's tree as a precautionary measure before it overgrows his or her land and becomes a nuisance merely because he or she presumes that in the course of time the boughs will probably overhang his or her land.

It is important to check with the council before cutting tree limbs or roots as some trees are protected trees under the City of Hobart Planning Scheme (CHPS) Significant Tree List.

It is also sensible to notify the neighbour before acting to ensure that there is co-operation and no misunderstanding.

The local council can require vegetation to be trimmed if it obstructs the view on a highway (s39Local Government (Highways) Act 1982 (Tas)). There are also requirements to trim vegetation under the Roads and Jetties Act 1935 (Tas) where the vegetation obstructs the view of a person using a road (s42). If a person fails to comply with a direction to do so, the local council or road authority may trim the vegetation.

Possible Dangers

Sometimes a neighbour will do something, or have something, on his or her land that would be dangerous or potentially damaging if it were to cross the boundary. Examples of this are a tree in such poor condition that it may fall, or a wall in a state of collapse. An order from the court (injunction) requiring the neighbour to avoid the potential damage may be obtained.

A neighbour might allow things which would not naturally be on the land to accumulate. If the things would not be there in the ordinary use of the land, and if they cross the boundary and cause damage to the adjacent owner or occupier, there will be certain legal consequences. Although the things need not be dangerous in themselves, common examples of the problem are fire, explosives, flammable substances, things which may give off a damaging gas, stored water and electricity. If the thing is in this category, compensation may be obtained for damage caused (damages). It is a very technical area of law, and legal advice is necessary.

It may be appropriate to inform the council of the existence of anything nearby which is highly dangerous or may cause damage if it were to escape before taking any other action.

© 2013 Hobart Community Legal ServiceFeedbackDisclaimer