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

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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
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