Trees and the Law - Alexandrina Council - SA.Gov.au
Trees and the Law - Alexandrina Council - SA.Gov.au
Trees and the Law - Alexandrina Council - SA.Gov.au
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In addition to proving <strong>the</strong> tree owner isliable for nuisance, an affected neighbourwho wants an injunction requiring <strong>the</strong>cutting back or trimming of a tree mustprove <strong>the</strong> likelihood of reasonably imminent<strong>and</strong> substantial or irreparable damage. 28In o<strong>the</strong>r words, <strong>the</strong>re 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 <strong>the</strong> area coming down in <strong>the</strong> wind. 30 On<strong>the</strong> o<strong>the</strong>r h<strong>and</strong>, it is not necessary to provedamage has occurred already. 31The purpose of a court order is to remove<strong>the</strong> nuisance. In many cases <strong>the</strong> terms of<strong>the</strong> order will require <strong>the</strong> tree owner toprevent <strong>the</strong> offending roots or branchesgrowing over <strong>the</strong> boundary. But <strong>the</strong> detailsof how this is to be done may be left to <strong>the</strong>tree owner. 32The complete removal of <strong>the</strong> tree may beordered if <strong>the</strong> continued existence of <strong>the</strong>tree, even though it is on <strong>the</strong> owner’s sideof <strong>the</strong> boundary, constitutes a real <strong>and</strong>appreciable threat of injury orserious damage.Alternatively, where it is not practicalsimply to cut back <strong>the</strong> roots or branches,<strong>and</strong> serious damage is continuing or willinevitably arise again, removal may berequired. 33 An affected neighbour willnot succeed in obtaining a removal ordermerely bec<strong>au</strong>se <strong>the</strong> tree owner has plantedtrees close to <strong>the</strong> boundary which can beexpected to grow across it <strong>and</strong> c<strong>au</strong>se anuisance, unless, perhaps, similar trees hadalready c<strong>au</strong>sed 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, horticulturalists<strong>and</strong> consulting agencies, laboratory reportsto identify roots (see ‘Where To Get Help’page 16) <strong>and</strong>, occasionally, a site visit by <strong>the</strong>court (called a ‘view’).Compensation for damageIf actual damage has occurred bec<strong>au</strong>seof a tree in an adjoining property, <strong>the</strong>affected neighbour should ask <strong>the</strong> treeowner to pay for it. In most cases this willbe <strong>the</strong> cost of repair work to walls, roofs,gutters, paving or drainage pipes. Copiesof quotations for <strong>the</strong> work should be sentwith a written request to pay <strong>the</strong> amountof <strong>the</strong> lowest satisfactory quote. If <strong>the</strong> treeowner refuses, a Community MediationService may be able to assist in negotiatinga mutually agreeable contribution torepair costs (see ‘Where To Get Help’page 16). O<strong>the</strong>rwise, an application to <strong>the</strong>Magistrates Court may be necessary to getcompensation.10