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

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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
Page 2 and 3: Trees and the LawProduced by the Le
Page 4 and 5: In our gardens, trees can provide u
Page 6 and 7: a ‘reasonable’ tree owner would
Page 8 and 9: A tree owner is unable to avoid lia
Page 10 and 11: A person cutting back their neighbo
Page 14 and 15: Is the tree protected?While the law
Page 16 and 17: How can future problemsbe avoided?A
Page 18 and 19: Where to get helpTechnicalAdvice on

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