Trees and possible dangers
The Neighbourhood Disputes about Plants Act 2017
With a beautifully simple title, the Neighbourhood Disputes about Plants Act 2017 provides for the rights and responsibilities of land owners and the resolution of disputes, related to plants. It enables dispute resolution and also provides for self-help remedies, such as removing overhanging limbs of 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. The Act provides informal dispute resolution as a way forward, particularly where there are overhanging branch issues.
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 Act provides that the owner of the land on which the plant or tree is located is responsible for removing any overhanging branches (s10).
If you remove branches or limbs yourself, the remains of any branches or roots (including any fruit which was on the encroaching branches) may be returned to the owner of the tree but there is no obligation to do so.
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 (s39, Local 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.
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. Or you can seek a resolution in discussion with your neighbour.
A neighbour might allow things which would not naturally be on the land to accumulate – for example, the hoarding of cars. 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.