Trees and the Law - Alexandrina Council - SA.Gov.au

Trees and the LawProduced by the Legal Services Commission.This information is a general guide to the law. Itis not a substitute for legal advice. Contact theLegal Services Commission, a community legalcentre or a private lawyer for detailed advice.October 2009 © Legal Services Commission ofSouth Australia2

Trees and the LawIs the tree really the problem? page 2Is the tree owner legally responsible? 3What can the affected neighbour do? 6The parties discuss the problemAffected neighbour removes the nuisanceLocal council ordersTree owner removes the nuisanceCompensation for damageIs the tree protected? 12Action by neighbourAction by ownerSignificant treesSignificant tree affecting neighbourHow can future problems be avoided? 14Endnotes 15Where to get help 161

In our gardens, trees can provide uswith shade, fruit, privacy and a pleasantoutlook. Yet trees can sometimes becomethe cause of disagreement betweenneighbours. Trees can be seen ascompeting for space, water and sunlight,and can sometimes be responsible forinconvenience and damage.The purpose of this booklet is to outlinethe law relating to tree problems betweenprivate neighbours and to suggest somepractical ways in which problems may beavoided.This booklet does not deal with problemsassociated with trees growing on publicland or overhanging on to public areas.In general, whether or not a local councilhas planted a tree on a road, they cannotbe made liable for any damage resultingfrom the tree’s location or growth (LocalGovernment Act 1999, s 245(1)).However, if the owner or occupier ofproperty adjacent to the road has madea written request to the council to takereasonable action to avert a risk ofdamage from the tree and the councilhas failed to take reasonable action inresponse to the request, the council maybe liable for any damage to property thatwould have been averted if the council hadtaken reasonable action when requested.Specific legal advice should be sought inthese situations.The legal control and protection of varioustree species in rural, hills and reserve areasis also beyond the scope of this booklet.The Animal and Plant Control (AgriculturalProtection and Other Purposes) Act 1986,the Native Vegetation Act 1991, and theNational Parks and Wildlife Act 1972 maybe relevant in these contexts.The most common tree problems betweenneighbours include overhanging branches,tree litter, shading and intruding roots.The responsibilities of the tree owner andthe rights of the affected neighbour inthese situations are mainly covered by thecommon law about liability for nuisanceand negligence.A helpful approach to tree problemsbetween neighbours is to ask thesequestions:Is the tree really the problem? (p. 3)Is the tree owner legally responsible? (p. 3 )What can the affected neighbour do? (p. 6 )Is the tree protected? (p. 11)How can future problems be avoided?(p. 13 )2

TREES AND THE LAWIs the tree really theproblem?To establish that the tree owner is legallyresponsible an affected neighbour mustfirst show that it is more likely than notthat a particular tree or trees is the causeof the problem. While it is easy to showthat a branch is overhanging the boundary,it can be difficult to prove root damage.Damage to buildings, walls, drains andpaving may or may not be partly dueto root action. Seasonal changes in soilmoisture levels may be a major factor.Identifying the problem tree or trees mayalso be difficult where several trees aregrowing in the area. Remember that rootsfrom some trees can travel a long wayfrom the base of the tree.Roots can be identified as coming froma particular tree by trenching the site,but this may cause great inconvenienceand expense, particularly if the area isconcreted or built over. Laboratory testscan identify trees from a fresh, woody rootsample more than 5 mm in diameter (seeRoot Sample Testing, page 16).Is the tree owner legallyresponsible?If a particular tree can be identified asthe source of the problem, the tree’sowner may be liable (legally responsible)depending on where the tree is growing.The tree owner is the person who ownsthe land on which the tree is growing (orfrom which it has grown) because the treeis legally considered to be part of the landas a ‘fixture’.Several different situations are possible:(a) Tree located entirely on the treeowner’s landIn most cases there will be no liability atall for problems caused by a tree whichis located entirely on the tree owner’sside of the boundary (including the roots).There is no general right to sunlight or to apleasant or unimpeded outlook (unless, inrare circumstances, there is an easementprotecting such a right). Therefore there canbe no liability for shading, unsightliness,or the blocking of a view by a tree whichremains entirely on another person’s land.(b) Branches or leaves falling overthe boundaryIf a tree grows entirely on the tree owner’sside of the boundary, but parts of it fall bynatural means on to the other side, thetree owner may be liable in negligence. Theaffected neighbour would need to provethat actual loss or damage had resultedfrom the tree owner’s failure to takeadequate precautions. What is consideredadequate is determined by asking how3

a ‘reasonable’ tree owner would haveassessed the situation and what theywould have done about it. If, for example,the branch of a tree breaks off and fallsinto a neighbouring property causingdamage, the tree owner would not beliable unless they failed to take reasonablecare of the tree or failed to fix what anordinary reasonable landowner wouldhave recognised as a significant problem. 1Compensation (called ‘damages’) is theusual remedy if negligence is proved.A neighbour who is aware that a tree nearthe boundary is in a dangerous condition,or belongs to a species which is knownto drop branches, should draw this to thetree owner’s attention in writing and keepa copy of the letter. If damage occurslater, this will assist to establish that thetree owner was aware of the problem andfailed to take reasonable and appropriateprecautions.If, however, a strong, healthy tree blowsdown across the fence in a storm, this isconsidered to be an ‘act of God’ for whichthere is no liability. 2 Nor is there liability forleaves, needles, nuts or twigs which areblown into the neighbour’s property by thewind 3 unless, perhaps, they were knownto be highly toxic and attractive to animalsor children. 4If the tree owner cuts off branches orpicks up leaves and throws them overthe boundary the affected neighbour maybring an action for trespass. A trespassgenerally involves a deliberate, invasivebreach of security without permission. Itis not necessary (as it is with an actionfor negligence) to prove that any actualdamage or loss resulted from the trespass.Special additional damages may also begiven as a warning to others.(c) Trees intruding on to theneighbour’s sideTree branches and roots growing over theboundary are not ‘trespassing’ in the legalsense. 5 They are legally a ‘nuisance’. 6 Atree which remains entirely on the owner’sside of the boundary cannot, technically, bea nuisance. 7The law of nuisance is essentially aboutbalancing interests in cases of conflictingland use. A nuisance is an unreasonableand substantial interference with theneighbouring owner’s use and enjoymentof their land. (Apart from trees, otherexamples of nuisance are noise, dust,smoke, flooding, pollution etc.) Where anuisance situation is found to exist, the lawmay provide several remedies, dependingon whether actual damage or loss hasoccurred or is likely to occur. In mostcases the main legal remedy for projectingbranches and penetrating roots is the rightto cut them off at the boundary.4

TREES AND THE LAWGenerally speaking it is the tree ownerwho is liable for a nuisance situation. Butliability will usually depend on whetherthe tree owner was aware or should havebeen aware of the nuisance situationwhich created a risk of damage to theneighbour.Trees planted by current owneror tenantAn owner of land who plants a tree whichbecomes a nuisance may be liable for anyreasonably foreseeable damage whichresults from that nuisance. Liability mayalso be incurred if a gardener or otherperson for whom the owner is responsibleplants the tree, unless this is beyond thescope of their employment or instructionsand is not brought to the owner’sattention. 8A tenant or other person who plants atree without the owner’s knowledge maybecome liable instead of, or as well as theowner, depending on whether the ownershould have become aware of the problembefore the damage happened.Trees planted by previous ownerA person who aquires a property with anuisance tree already growing on it willonly be liable for damage occurring afterthey became aware or could be presumedto be aware of the problem and failedto correct it. 9 The new owner becomesliable if he or she continues or adopts thenuisance. They will be presumed to beaware of a problem if in the circumstancesof the case they could reasonably beexpected to be aware of it. It may bepresumed, for example, that tree ownersshould be aware that tree roots, whichcannot usually be seen, can travel somedistance and cause damage to buildings. 10If tree owners knew or ought to haveknown of a nuisance situation, they willbe liable for failure to take reasonableprecautions to prevent damage, if theyhad a reasonable opportunity to do so.Precautions need only be taken wherethere is a reasonably foreseeable risk ofdamage, that is, a real and not merelytheoretical risk which a reasonableperson would have considered necessaryto remove.What amounts to a reasonable precautionwill depend on a comparison betweenthe cost and inconvenience of thework involved with the likely cost andinconvenience of the damage which mightoccur if adequate precautions were nottaken. 11 Liability will not be imposed incases where the cost of precautionarymeasures is prohibitive when comparedwith the risk of damage occurring. 12 Treeowners who become aware of potentialproblems which neighbours may have withtheir trees should seek advice from a treespecialist.5

A tree owner is unable to avoid liabilityon the basis that the neighbouringowner bought their property next tothe tree or built too near it. 13 In somecircumstances, however, this will affectthe nature of court orders obtained or theamount of compensation awarded. It isalso no answer to a tree nuisance claimthat the tree was self-sown 14 or posedan insubstantial or not unreasonableinterference. 15(d) Trees on the boundaryIf a tree appears to be growing right onthe boundary, it legally belongs to theowner of the land where it was first sownor planted. Where this is not known, thetree is normally regarded as being jointlyowned by the adjoining landholders. 16 Insuch cases, there is no right to cut thetrunk at the boundary, because this wouldkill the tree and destroy the adjoiningowner’s interest in it. Both owners willhave to agree on how to deal with it.(e) Problems caused by landowner’s treesPeople obviously cannot claim againstneighbours for problems caused by theirown tree unless it can be shown thatthe neighbour has interfered with thetree so as to create the problem. Suchinterference, especially by poisoning,can be very difficult and costly to prove.Deliberate interference may result inliability for trespass or even criminaldamage, while careless interference mayresult in liability for negligence.What can the affectedneighbour do?However annoying the problem with a tree,it is important for an affected neighbour tokeep it in perspective. In most cases thereare a range of possible solutions. But if thetree owner and the affected neighbour areto continue to live next door to each other,it is best to approach the problem in sucha way as to avoid any unnecessary harmto the relationship. Honest discussion ofthe situation with the aim of negotiatinga mutually beneficial solution is the bestapproach, regardless of whether thetree owner is legally responsible for theproblem.If the affected neighbour is a tenant,the landlord should be informed of theproblem, but the tenant has the right topursue any of the following strategies.The parties discuss the problemIt is sensible to think carefully aboutexactly what you want before raising aproblem with a neighbour. A good start issimply to arrange a convenient time to talkabout the tree. It is obviously not a goodidea to commence discussions ‘in the heatof the moment’ after first becoming awareof the problem.People should explain the problem asclearly and openly as possible in terms ofhow they are affected and not in terms ofhow the other party is to blame. If bothparties are able to do this, and listen toeach other enough to understand what6

Whenever tree roots or branches havebecome a nuisance by growing across theboundary, the affected neighbour is entitledTREES AND THE LAWto cut them off at the boundary line.they each need, the chances of agreementare much higher. People who experience(or expect) real difficulty in talking to theirneighbour should contact a CommunityMediation Service for help. These servicescan provide independent and neutralmediators to conduct meetings betweenneighbours (See ‘Where To Get Help’,page 16).Affected neighbour removes thenuisanceWhenever tree roots or branches havebecome a nuisance by growing acrossthe boundary, the affected neighbouris entitled to cut them off at theboundary line. 17 This is called the rightof ‘abatement’. It is a self-help remedy- taking practical action to remove thenuisance. It does not arise until there is anuisance.There is no right to take precautionaryaction such as lopping branches which mayin future grow over the boundary unlessthey are lopped. Pruning the tree insidethe owner’s property without permissionis a trespass, for which exemplarydamages may be awarded by a court inaddition to compensation. 18 Prior notice tothe tree owner is only legally required if itis necessary to go on to their land to dothe work or permission is to be sought forcutting over the boundary. 19 In any case, itis normally good neighbourly practice to letthe tree owner know before cutting backmajor branches or roots.7

A person cutting back their neighbour’stree is obliged to exercise reasonablecare and skill in carrying out the work.If unnecessary damage is caused tothe tree they may be found liable to paycompensation to the tree owner. Branchesshould be cleanly cut with a sharp sawor other appropriate implement so thathealing is not impeded. Roots which havebeen cut back should not be treated withretardants or poisons. If roots are cut insuch a way as to destabilise the tree, andit later falls over, there may be liability innegligence for any damage caused.Any severed roots or branches remainthe property of the tree owner. 20 Theneighbour may not burn, sell or otherwisedispose of the wood or cuttings withoutpermission. Although there is no positivelegal duty to return them, 21 the bestcourse is to place them on or outsidethe tree owner’s property (preferably asagreed beforehand) taking care not tocause any further damage in doing so. Thelocal council should be consulted beforecuttings are deposited on nature strips,which are council property, in case thetree owner delays in collecting them.As a general rule, the neighbour is notentitled to recover the costs of cuttingback the tree from its owner. 22 In caseswhere overhanging branches are high offthe ground, the assistance of professionaltree loppers may be required to removethem safely. If the cost is likely to beexpensive, the tree owner should be askedto contribute. A Community MediationService may be able to help in thissituation. If no agreement can be reached,an alternative might be to seek a courtorder that the work be done at the treeowner’s expense (see below).A neighbour may be able to recover thecost of cutting back the tree if damageis imminent or already occurring to theirproperty because of a nuisance situation.Affected neighbours are obliged to takereasonable precautions to minimise theextent of the damage that they suffer.This may involve some minor pruning orsimilar work. Provided that it is necessaryto minimise actual damage, and it is notundertaken as a longer-term precaution,the costs of this work may be recoveredfrom the tree owner. 23 It may of coursebe difficult to prove at a later date that thework was necessary.A neighbour cannot generally recover thecost of measures taken to guard againstlikely damage from overhanging branchesor encroaching roots. 24 For example,the installation of gutter shields or P.V.C.drainage pipes.8

TREES AND THE LAWAbatement is a right, not an obligation.A tree owner cannot force an affectedneighbour to cut back the tree to theboundary instead of, say, claimingcompensation. Once the abatementis carried out, however, the affectedneighbour may only claim, at most,compensation for damage suffered beforethe work is done. 25 That is not to say thatabatement must be delayed until actualdamage has occurred: the right to abatecomes into existence as soon as thenuisance situation first occurs as roots orbranches grow over the boundary line. 26Local council ordersThe Local Government Act 1999 s 254,gives councils the power to clean upprivate land, including trees. A councilmay order an owner or occupier of aproperty to remove overgrown vegetation,cut back overhanging branches, or toremove a tree where such growth createsor is likely to create, danger or difficulty topersons using a public place or is unsightlyand detracts from the amenity of thelocal area.If requested by an affected neighbour, acouncil has the power to require the owneror occupier of an adjoining property toremove or cut back encroaching vegetation(Local Government Act 1999 s 299(1)).However, some councils have indicatedthat they do not wish to be involved inneighbour disputes so this may not bean option.Tree owner removes the nuisanceAn affected neighbour can always ask thata tree owner remove a nuisance situationby trimming back or removing their owntree. If the response is unsatisfactory aCommunity Mediation Service may beof assistance (see ‘Where To Get Help’page 16). The only way that the tree ownercan be required to do the work, however,is by applying to the Magistrates Courtfor an order. In South Australia any courtapplications for orders against neighboursbased on nuisance may be heard in theMinor Civil Action jurisdiction of theMagistrates Court. In nearly all such actionsthe parties represent themselves - lawyersare not normally permitted to appear.An order for a tree owner to cut back orremove a tree is an example of a type ofcourt order called an injunction. Theseare orders requiring certain activitiesto cease or for particular action to betaken. Such orders will not be granted ifthe problem is temporary, occasional ortrivial, can adequately be compensated bya small amount of money, and an orderwould be oppressive to the tree owner inthe circumstances. 27 The motive of theperson seeking an order and the conductof the person opposing it are also relevantconsiderations.9

In addition to proving the tree owner isliable for nuisance, an affected neighbourwho wants an injunction requiring thecutting back or trimming of a tree mustprove the likelihood of reasonably imminentand substantial or irreparable damage. 28In other words, there must be a real,appreciable risk of significant damagefrom overhanging branches or invasiveroots. The probability of root damage in 10years would not, for example, justify aninjunction. 29 It is also not enough to relysolely on reports of overhanging branchesin the area coming down in the wind. 30 Onthe other hand, it is not necessary to provedamage has occurred already. 31The purpose of a court order is to removethe nuisance. In many cases the terms ofthe order will require the tree owner toprevent the offending roots or branchesgrowing over the boundary. But the detailsof how this is to be done may be left to thetree owner. 32The complete removal of the tree may beordered if the continued existence of thetree, even though it is on the owner’s sideof the boundary, constitutes a real andappreciable threat of injury orserious damage.Alternatively, where it is not practicalsimply to cut back the roots or branches,and serious damage is continuing or willinevitably arise again, removal may berequired. 33 An affected neighbour willnot succeed in obtaining a removal ordermerely because the tree owner has plantedtrees close to the boundary which can beexpected to grow across it and cause anuisance, unless, perhaps, similar trees hadalready caused damage in this way.The kinds of evidence normally relied onto support claims for court orders includephotographs, site plans, reports from expertwitnesses such as arborists, horticulturalistsand consulting agencies, laboratory reportsto identify roots (see ‘Where To Get Help’page 16) and, occasionally, a site visit by thecourt (called a ‘view’).Compensation for damageIf actual damage has occurred becauseof a tree in an adjoining property, theaffected neighbour should ask the treeowner to pay for it. In most cases this willbe the cost of repair work to walls, roofs,gutters, paving or drainage pipes. Copiesof quotations for the work should be sentwith a written request to pay the amountof the lowest satisfactory quote. If the treeowner refuses, a Community MediationService may be able to assist in negotiatinga mutually agreeable contribution torepair costs (see ‘Where To Get Help’page 16). Otherwise, an application to theMagistrates Court may be necessary to getcompensation.10

TREES AND THE LAWClaims up to $6000 may be made in theMinor Civil (Small Claims) jurisdiction of theMagistrates Court. Cases based on nuisanceor negligence for sums greater than $6000may be heard in the General Jurisdiction ofthe Magistrates Court where lawyerscan appear.In cases where the tree roots or brancheswere growing across the boundary beforethe damage occurred, the application willbe based on nuisance. In both negligenceand nuisance situations, there are limits onwhat may be claimed. In either case, theaffected neighbour would need to establishthat the damage or loss was in fact causedby the tree and that it was reasonablyforeseeable. In other words, there must havebeen more than merely a possibility of theproblem occurring. It would, for example, bereasonably foreseeable that if a dying branchhigh in a tree near the boundary fell off in astorm it would damage the fence and maybethe tool shed on the other side.Tree owners have been held by the courts tobe liable to pay compensation for a variety ofproblems caused by overhanging branches:• Animals becoming ill from eating off thebranches 34• Branches and twigs moving in thewind and brushing against the affectedneighbour’s house keeping them awake 35• Leaves from the branches overhanging aroof blocking the gutters causing waterdamage to the building 36• Pine needles falling from overhangingbranches 37• Damage to crops growing beneath theoverhanging branches 38• Dying tree falling into the street 39Liability to pay compensation for damagecaused by roots penetrating the soil acrossthe boundary has been established in thefollowing situations:• roots absorbing moisture causing claysoil shrinkage and building damage 40• roots damaging substandard garageand wall 41• roots damaging stormwater andsewerage drains 42• roots undermining the affectedneighbour’s boundary wall causing it tocollapse 43• damage to the neighbour’s lawn andgarden 44• loss of crops while roots are cleared 45• breaking of concrete paving inneighbour’s yard 46In addition to the kinds of evidence whichmay be useful to support a claim for aninjunction, the affected neighbour whoclaims compensation will need to obtainevidence proving that the damage hasoccurred and how much it will cost torepair. Expert reports and trade quotationswill probably be necessary.For affected neighbours, householdinsurance policies generally cover damagecaused by falling trees or branches butmay not cover tree root damage. For treeowners, household public liability insurancepolicies may or may not cover liability forboth types of damage. Individual policiesshould be checked with insurers inevery case.11

Is the tree protected?While the law provides some remediesfor the benefit of a neighbour affected byproblems with a tree, it also provides ameasure of protection for the tree ownerand the tree.Action by neighbourThe neighbour affected by a tree nuisancesituation has limited rights to take actionagainst the tree.The right to cut back the tree is limited by:a) the possibility of being held liable fortrespass if the tree is cut beyond theboundary, andb) the possibility of being held liable fornegligence if the tree is unnecessarilyand carelessly harmed because of theway the job is done, andc) whether the tree is protected asa ‘significant tree’ and subject todevelopment controls.A claim for an order requiring the treeowner to do the pruning is only likelyto succeed if substantial or irreparabledamage is likely to occur soon. Orders forremoval of trees are even more difficult tojustify.It must be stressed that in nocircumstances is the affected neighbourlegally justified in poisoning the tree,or going on to or leaning over the treeowner’s land to carry out work on thetree unless given specific permission todo so. Such action could result in a courtawarding compensation and exemplarydamages for trespass to discourage other12people from doing the same thing. 47 It is alsopossible that the neighbour could be chargedwith a criminal offence. There is no right togo on to neighbouring land even to rectify adangerous problem with a tree which is nota nuisance: the only right the law providesis a claim for compensation if it actuallyfalls over and causes damage. Obviously, atimely warning to the tree owner will be theappropriate precaution.Significant treesThe Development Act 1993 provides thatany activity that damages a significant tree isdevelopment and requires council approval.A ‘significant tree’ is:• Any tree in metropolitan Adelaide andtownships in the Mt Barker and AdelaideHills areas with a trunk circumference of2.0m or more. In the case of trees withmultiple trunks, those with trunks with atotal circumference of 2.0m or more andan average circumference of 625mm ormore, measured at a point 1.0m abovenatural ground level, or• Any tree identiied as a signiicant tree inthe City of Adelaide, City of Burnside, Cityof Prospect or City of Unley DevelopmentPlans.If a tree is classified as a significant tree,local council approval is required before itcan be substantially pruned, damaged, killedor removed. Maintenance pruning that is notlikely to affect the health or appearance ofthe tree is not controlled. These requirementsapply both to tree owners and affectedneighbours.

TREES AND THE LAWUrgent work may be done if necessaryto protect persons or buildings, butmust, so far as is reasonably practical, beundertaken to cause the minimum amountof damage to the tree. Approval must beapplied for afterwards [Development Act1993 s 54].A council may either approve anapplication, approve it subject to conditionsor refuse it. No notice of applications willneed to be given to neighbours unlessthe tree is on council land. The normalapplication fees apply for tree owners butthere is no fee for an affected neighbourseeking approval to lop on their side of theboundary. Failure to obtain approval canattract a fine of up to $120,000.The following factors may be taken intoconsideration in the assessment of anapplication :1. To what degree will the activity tobe carried out adversely affect theaesthetic appearance, structuralintegrity, root system or health of thetree?2. Is the tree diseased and its lifeexpectancy short?3. Does the tree represent anunacceptable risk to public or privatesafety?4. Is the tree a bushfire hazard in aBushfire Prone Area?5. Is the tree causing or threateningto cause substantial damage to abuilding or structure of value?6. Have all reasonable alternativedevelopment options and designsolutions been considered to preventsubstantial ’tree damaging’ activityoccurring?Significant tree affecting neighbourPruning back a significant tree that isencroaching on your property – eitherbranches or roots – does not requiredevelopment consent unless it is likely toaffect the health and appearance of the tree.Where cutting back the tree would result indamage to the tree (including root damage),development approval is required.In some rare cases it may be possible tohave the tree protected by the State or localgovernment as a heritage item, so that theowner cannot remove it. Very few trees areincluded as heritage places on the Registerfor protection under the Heritage Act 1993(SA) and those are usually on public land. It ismore likely that a tree on private land couldbe designated a ‘local heritage place’ underthe Development Act 1993. This may bepossible if the tree ‘has played an importantpart in the lives of local residents’, ‘displaysaesthetic merit’, ‘is associated with a notablepersonality or event’ or ‘is a notable landmarkin the area’ (s 23(4)). Notice of proposals toamend the Development Plan to designatesuch places must be given to the owners,inviting them to make submissions to thelocal council before public consultation isundertaken (s 25(12)).13

How can future problemsbe avoided?A tree can be many things - a gardencentrepiece, an object of beauty, a sourceof food, a structural support, a provider ofshade. For some people a tree can alsobecome a blot on the landscape, an objectof ridicule, a source of frustration and anunending nightmare. Whether a tree isan asset or a liability depends largely onwhether it is a good choice for the site.Choosing a tree is a bit like choosingmembers of a team - they must certainlynot conflict or create problems, theyhave to do the job and, preferably, addsomething special.When selecting a tree for a garden,householders should always get expertadvice on features which may make itunsuitable. Poplars, willows and river redgums, for example, are notorious for theirinvasive water-seeking root systems, anddropping limbs. Elms and poplars producesuckers, eucalypts and pines generatelitter, liquid ambers shed copious leavesand fruit, and lemon scented gum andcamphor laurels grow very tall. Trees likethese need plenty of space and water.Expert advice should be obtained from aqualified arborist or horticulturalist while alocal nursery can give general information.A list of trees suitable for planting insuburban gardens can be helpful as astart. Once an appropriate species hasbeen selected, care should be given to itssiting, planting and maintenance.Obviously large trees should not be plantedclose to buildings if their root system islikely to cause damage.Where trees are already established inthe area, care should also be taken whenconsidering the siting and design ofbuildings, drainage systems, drivewaysand paving. Some types of soils are moreprone to expansion and contraction as themoisture content rises and falls. Drainagesystems also need to be sensibly plannedaround existing site features such as trees.They should be carefully jointed when laidso that a watertight seal is achieved, andproperly backfilled with compacted sandto create a further root barrier. Driveways,paths and paving should be impervious torain water to inhibit moisture concentrationin the soil underneath. Plumbing systemsshould be checked regularly.Well-established trees need to be checkedperiodically for dead, dying or overextendedbranches, the presence of rot,termites or borers, and other indicationsof stress. Any wounds should be properlycleaned. The tree surrounds should allowfor natural levels of absorption of rainfall asmuch as possible. Creepers should not beallowed to grow up the trunk or branches.If problems arise with spreading roots theproblem may be one which can be rectifiedwith a root barrier. Expert advice may beneeded as to the type of barrier whichwill be necessary. In some cases a PVCmembrane may suffice. In other cases, adeep concrete barrier may be required.14

TREES AND THE LAWEndnotes1 Brown v Harrison (1947) 177 LT 281, SmibertGroup Transport P/L v Clifford (2005) SADC 80(8 July 2005)2 Bruce v Caulfield (1918) 34 TLR 2043 Molloy v Drummond (1939) NZLR 499,Asman v Maclurcan (1985) 3 BPR 95924 Matthews v Forgie (1917) NZLR 921, Davey vHarrow Corporation (1958) 1QB 60 at 71-25 Lemmon v Webb (1894) 3 Ch at 246 Davey v Harrow Corporation (1958) 1QB 607 Ponting v Noakes (1894) 2QB2818 City of Richmond v Scantelbury (1991) 2 VR 38at 40, 459 Proprietors of Strata Plan 14198 v Cowell(1989) 24 NSWLR 478 at 488, Valherie v StrataCorporation No 1841 and Ors [2004]SASC 17010 City of Richmond v Scantelbury (1991) 2VR38at 44, 4711 City of Richmond v Scantelbury (1991) 2VR38at 46-712 Solloway v Hampshire County Council (1981)79 LGR 44913 Proprietors of Strata Plan 14198 (1989)24 NSWLR 47814 Davey v Harrow Corporation (1958) 1QB 6015 Young v Wheeler (1987) Aust Torts Reports80-12616 Holder v Coates (1827) 173 ER 1099, Speed vMoney and Musson (1904) 48 Sol Jo 67417 Lemmon v Webb (1894) 3 Ch 118 Gazzard v Hutchesson (1995) S.A. SupremeCourt Bollen J unpublished judgementnumber S506819 Lemmon v Webb (1894) 3 Ch 120 Mills v Brooker (1919) KB 55521 Loverock v Webb (1921) 70 DLR 74822 Young v Wheeler (1987) Aust TortsReports 80-12623 Proprietors of Strata Plan 14198 v Cowell(1989) 24 NSWLR47824 Young v Wheeler (1987) Aust Torts Reports80-12625 City of Richmond v Scantelbury (19911)2 VR 38 at 4826 Traian v Ware (1957) VR 200 at 20727 Elliott v London Borough of Islington (1991)1 EGLR 16728 Mendez v Palazzi (1976) 68 DLR 58229 Asman v Maclurcan (1985) 3 BPR 959230 Cannon v Newberger (1954) 268 P (2d) 42531 King v Taylor (1976) 1 EGLR 13232 Roud v Vincent (1958) NZLR 79433 Mandeno v Brown (1952) NZLR 44734 Crowhurst v Amersham Burial Board (1878)4 Ex D 535 Rose v Equity Boot Co Ltd and Hannafin (1913)NZLR 67736 Rose v Equity Boot Co Ltd and Hannafin (1913)NZLR 67737 Mandeno v Brown (1952) NZLR 44738 Smith v Giddy (1904) 2 KB 44839 Brown v Harrison (1947) 177 LT 28140 Butler v S.T.C. (1940) 1 KB 399, McCombev Read (1955) 2 QB 429, City of Richmond vScantelbury (1991) 2 VR 38, Valherie v StrataCorporation No 1841 and Others [2004]SASC 17041 King v Taylor (1976) 1 EGLR 18242 Morgan v Khyatt (1964) 1 WLR 47543 Middleton v Humphries (1913) 47 LT 16044 Mendez v Palazzi (1976) 68 DLR 58245 Roud v Vincent (1958) NZLR 79446 Saat v Leonardis (1990) SA Supreme CourtOlsson J, unpublished judgement number 270147 Gazzard v Hutchesson (1995) SA SupremeCourt Bollen J, unpublished judgement numberS506815

Where to get helpTechnicalAdvice on selecting treesState Flora (advice and sales of nativetrees) Jubilee Drive, Belair National ParkTel: 8278 7777Condition reports and treatmentSee ‘Tree Surgeons’ (or arborists) in theYellow PagesRemovalSee ‘Tree Felling and/or Stump Removal’ inthe Yellow Pages.Root sample testingAustralian Water Quality CentreHodgson Road, BolivarTel: 1300 653 366Root removal from pipesSee ‘Plumbers and Gasfitters’ in the YellowPages.Building damage reportsSee ‘Engineers - Consulting’ (FootingDesign specialists) in the Yellow Pages.Community Mediation ServicesCommunity mediation services can helpneighbours to resolve problems withoutgoing to court.For an appointment telephone:Metropolitan areas 8384 5222Western region 8243 5521City and eastern region 8202 5874Northern region 8281 6911Legal Services Commissionwww.lsc.sa.gov.auLegal Help Line 1300 366 424(TTY 8463 3691)Adelaide Office82-98 Wakefield StreetAdelaide 5000Telephone 8463 3555Elizabeth OfficeWindsor BuildingElizabeth Shopping CentreElizabeth 5112Telephone 8207 9292Holden HillTenancy 7, 560 North East RoadHolden Hill 5088Telephone 8369 1044Mt Barker18 Walker StreetMt Barker 5251Telephone 8226 8722NoarlungaNoarlunga HouseColonnades Shopping CentreNoarlunga Centre 5168Telephone 8207 3877Port Adelaide306 St Vincent StreetPort Adelaide 5015Telephone 8207 627616

TREES AND THE LAWPort Augusta13 Flinders TerracePort Augusta SA 5700Telephone 8648 5180WhyallaTenancy 7, 169 Nicolson AveWhyalla Norrie 5608Telephone 8648 8940Community Legal CentresCentral Community Legal ServiceShop 2, 59 Main North RoadMedindie Gardens 5081Telephone 8342 1800Environmental Defenders Office408 King William StAdelaide SA 5000Telephone 8410 3833South East CLS9 Penola RoadMount Gambier 5290Telephone 8723 6236Westside Community Lawyers Inc.Parks Community CentreTrafford StreetAngle Park 5010Telephone 8243 5521Port Pirie Office60 Florence StreetPort Pirie 5540Telephone 1800 114 442Women’s Legal Service19 Market StreetAdelaide 5000Telephone 8221 5553 (Advice)8231 8929 (Admin)Rural Women’s Outreach ProgramTelephone 8641 3356 (Port Augusta)Northern CLS26 John StreetSalisbury 5108Telephone 8281 6911Riverland CLS8 Wilson StreetBerri 5343Telephone 8582 2255Southern CLS40 Beach RoadChristies Beach 5168Telephone 8384 522217